Biden's new Title IX rules eviscerate rights of accused on campus, separation of powers

It’s hard to believe but college campuses are about to get even more dangerous and less collegial than they are now.

Title IX, passed by Congress in 1972 rightly prohibits schools from discriminating on the basis of sex.

Although it protects both sexes, it has assured two generations of girls and women of opportunities and protections they had been previously denied. The legislative process that produced this landmark law and amended it several times since has helped to assure its long-term public support.

The Biden administration rejected that process and issued new rules that not only change the original congressional intent of Title IX but trample on fundamental constitutional protections too. We’ve been down this road before as the new rules are a rehash of those from the now infamous “Dear Colleague” letter issued by the Obama Administration and subsequently repealed during the Trump Administration.

The Ohio General Assembly is still debating changes to state education law. They should consider adding provisions to not only protect Ohio’s students but also state taxpayers who will ultimately pay for the litigation sure to follow from Biden’s new rules.

What to know| Updated Biden administration rules will soon affect students across US.

The last three presidents are hardly alone in these abuses, as they have been steadily growing in scale along with the growth of the administrative state begun in earnest with the New Deal during the Roosevelt Administration and continued by Presidents of both parties since.

As most of us learned in grade school civics classes, our Constitution vests the power to make law in the legislature, to enforce it in the executive, and to interpret it in the judiciary.

This “separation of powers” is central to our constitutional order.

Protections will be eviscerated

The Fourth through Eighth Amendments provide protections to the people regarding search and arrest, due process, and fairness in criminal and civil trials, including the right to face your accuser and defend yourself. The Fourteenth Amendment expanded the due process rights even further in the wake of the Civil War.

Biden’s new Title IX rules eviscerate both the separation of powers and the protections for those accused of crimes, specifically in cases of sexual assault on college campuses.

Sexual assault is a horrible crime that deserves harsh penalties to protect victims and deter and punish offenders.

The new Title IX standards for adjudicating sexual assault instead treat those crimes as mere violations of student conduct rules.

As the father of a daughter, I’d have to be physically restrained if I caught the perpetrator of an attack on her, assuming my wife didn’t get there first.

Knowing that the law, the police, and the courts will provide at least some measure of protection or punishment is how civilized societies discourage what would otherwise devolve into vigilante justice.

Victims deserve better than second rate justice

Here’s the practical application – if a young woman is sexually assaulted by a classmate, the college won’t necessarily call law enforcement, who have expertise and experience in protecting the woman and bringing the offender to justice.

Rather, it can appoint a single bureaucrat to act as judge, jury, and executioner in a concocted process that is more kangaroo than court.

These tribunals are often devoid of basic standards of evidence, defense, or even the right to a presumption of innocence. One group that studies these cases has noted that hundreds of U.S. students have been falsely accused by such tribunals and more than 200 court decisions have been issued against schools that violated basic due process.

This means, in many cases, victims get second rate justice and the falsely accused get third rate due process. This feckless approach might well undermine the ability of police and prosecutors to obtain a conviction in the real courts.

Whether a change to the law is a good or bad idea rests with the people’s representatives in Congress, not with the president, regardless of party.

If the advocates for change can’t convince a majority of legislators to change the law then by definition, it’s a bad idea at this point in time. If you can’t change enough minds, change enough representatives.

If we’re lucky, the U.S. Supreme Court might come to the rescue this summer when it issues its opinion on two cases that will determine the fate of the Chevron deference standard that has weakened Congress and enabled Presidential administrations to run roughshod over the Constitution for far too long.

Regardless of that outcome, if we truly want to keep our kids safe when they go off to college, these unconstitutional rules should be repealed now.

New Albany resident Philip Derrow is a retired business owner. He was a two-term member of the New Albany-Plain Local Board of Education.

This article originally appeared on The Columbus Dispatch: Biden's unconstitutional Title IX rules destroy rights of campus accused