Draft Title IX regulations were leaked (presumably by a critic of fairer procedures) to the New York Times. The draft regulations remind that Title IX requires schools to be fair to both sides, not just the accuser; they also call for at least a circumscribed form of cross-examination. In these respects, they do nothing more than telling schools to avoid what many courts already have held out as problematic actions by colleges and universities.
The decline of Democratic support (at least among legislators) for basic fairness in campus procedures has been a troubling trend of the past two years. As with the reaction to Betsy DeVos’ decision last year to withdraw Obama-era guidance, there was no support for the new regulations among Democratic legislators. But far, far fewer legislators publicly commented to the Times story (perhaps they’re waiting for revelation of the final regulations.)
As always seems to be the case on this issue, the most extreme reaction came from Senator Kirsten Gillibrand:
Gillibrand has offered no explanation as to what happens in cases where it isn’t clear which party (if any) is a “predator” and which a “survivor.”
The new regulations also generated a negative response from Washington senator Patty Murray, who has emerged as one of the fiercest defenders of the repudiated Obama-era policies:
Murray did not explain how providing basic procedural protections for accused students is “shameful” or “appalling,” or how these procedures would make it harder for victims to seek justice.
The longest response came from Pennsylvania senator Bob Casey, who contended (without specificing how) that the new regulations would violate the Clery Act. Beyond that, he too was heavy on ad hominem attacks (the regulations would “hurt victims”) devoid of substance.
The only other Democratic senators to comment were Jeanne Shaheen and Richard Blumenthan. They too offered non-substantive criticism:
Blumenthal, like his colleagues, didn’t explain why permitting some form of cross-examination, or saying that Title IX requires fairness to both sides, could be deplorable and disgusting.