In 2011, the Department of Education ("DOE") under the Obama administration issued its Dear College Letter ("DCL") ordering publicly funded educational institutions to undertake aggressive actions to deter what was deemed an epidemic of sexual violence on college campuses. DOE subsequently aggressively enforced the directives of the DCL with scores of costly investigations of college disciplinary systems and threatened withdrawal of federal funding for institutions that failed to respond to sexual harassment claims aggressively. Hundreds of lawsuits followed in the wake of the DCL's issuance. Specifically, the flood of litigation was initiated by males contending they were briskly expelled, suspended, or otherwise disciplined upon collegiate tribunals' findings of guilt on claims of sexual harassment. The lawsuits portrayed collegiate systems that readily found accused males responsible on claims of sexual harassment through denial of fundamental due process rights and predetermined conclusions that equated the claim of sexual harassment with guilt on the charge. The majority of these lawsuits resulted in recognizing the deprivation of rights for the accused males in the universities' rush to judgment on sexual harassment claims. In May 2020, the DOE, under the Trump administration, released its Title IX Final Rule comprehensively addressing all aspects of publicly funded educational institutions' obligations in responding to claims of sexual harassment. The Final Rule's eighty-two sections created a procedural framework for adjudicating Title IX sexual harassment claims based solely on the determination of the factual validity of the complainant's allegations. Academia has unceasingly opposed the Final Rule from its original November 2017 publication for public comment. Repeatedly, the charge is made that the Final Rule will inevitably unleash a pandemic of sexual violence against collegiate women.
Joseph Biden campaigned for the presidency with a commitment that the Final Rule would be swiftly and surely rescinded. Accordingly, President Biden issued an executive order in March 2021 as the administration's first step in eradicating the Final Rule. However, the Final Rule has proved to be a law immune to swift elimination. A series of lawsuits seeking to overturn the Final Rule failed. Moreover, the Biden administration's actions have acknowledged that the Final Rule can only be rescinded and replaced through compliance with the Administrative Procedures Act and its public comment requirement. DOE has indicated a proposed replacement or drastic revision of the Final Rule will be published for public comment in April 2022. Thus, the Final Rule will likely remain an enforceable law throughout 2022. The public comment period will inevitably be contention as the Final Rule is one of the many issues on which America is deeply divided.
This article undertakes a history from the 1972 enactment of Title IX through the present setting forth the administrative, legislative, and judicial events that have led to the nation's deep division over the role of government in pronouncing and enforcing permissive sexual practices on college campuses. It concludes with considering the motivations underlying academia's consistent hostility to the Final Rule.
Andrew F. Emerson,
Will Due Process Be Returned to Academic Suspension?: An Analysis of Academia's Rejection of the Title IX Final Rule,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol71/iss1/8