Group Seeks to Compel Education Department to Require Procedural Safeguards in Alleged Sex Offenses

Students walk through the campus of the University of North Carolina at Chapel Hill in North Carolina on Aug. 18, 2020. Melissa Sue Gerrits/Getty Images

Three groups are asking the Supreme Court to allow them to intervene in litigation aimed at making the Biden administration adhere to a Trump administration rule that guarantees students accused of sexual improprieties procedural safeguards in administrative proceedings.

The case, Foundation for Individual Rights in Education (FIRE) v. Victim Rights Law Center, was docketed on July 21. The petitioners are three nonprofit organizations that promote free speech and due process on college campuses: FIRE; Independent Women’s Law Center; and Speech First Inc.

Among the governmental respondents are Education Secretary Miguel Cardona and the Department of Education. The other respondents are Victim Rights Law Center, Equal Rights Advocates, Legal Voice, Chicago Alliance Against Sexual Exploitation, and seven individuals.

The Federal Rules of Civil Procedure require that a person or group that wants to intervene in a lawsuit is required to show that none of the existing parties “adequately represent” its interests, according to SCOTUSblog. Several federal appeals courts have come up with a two-tiered system for considering such requests.

“Under this system, intervention on the side of a private party requires showing only that the existing parties will inadequately represent the intervenor’s position; however, when intervening on the side of the government, a presumption that the government will adequately represent the intervenor’s position must be overcome. Some circuits [of the U.S. Court of Appeals] apply similar, yet weaker, versions of this presumption, and some circuits have rejected it altogether.”

In the case at hand, the petitioners state in their Supreme Court petition that they favor keeping a rule interpreting Title IX that was adopted on Aug. 14, 2020, by the Trump-era Department of Education that abandoned the agency’s sweeping Obama-era definition of “sexual harassment” and established new procedural safeguards for those accused of sexual improprieties.

When the rule was nearly finalized last year, Nicole Neily, president of petitioner group Speech First, defended it.

“The Department of Education’s new Title IX rules provide much-needed clarity for students, universities, families, and administrators. For far too long, the process for adjudicating serious allegations on campus has been plagued by bias, vagueness, and overreach—undermining a system that was intended to ensure access to education for all students. Over the past decade, the definition of ‘discrimination’ has expanded on campus to encompass constitutionally protected expression—creating a climate of fear and suspicion on campus and destroying students’ appreciation for the traditions of fairness upon which this country was built.”

Title IX refers to Public Law 92-318, or the federal Education Amendments of 1972. It amended four federal education-related statutes.

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” the legislation begins.

For its first quarter-century, Title IX enforcement aimed at equalizing the participation of the sexes in high school and college sports. But that changed in 1980, when the U.S. Court of Appeals for the 2nd Circuit ruled in Alexander v. Yale University that under Title IX, sexual harassment constituted sex discrimination. The legal team representing the students who brought the case was advised by radical feminist law professor Catharine MacKinnon, who has described rape as “whenever a woman has sex and feels violated.”

FIRE and the other two petitioners have asked to intervene on the side of the Department to defend what they call in their petition “the culmination of a years-long rulemaking process—a key regulation mandating the most significant changes to administrative proceedings under Title IX in the history of that important statute.”

A federal appeals court “presumed the Department would adequately represent Petitioners and affirmed the denial of their motion to intervene,” and as a result, the petitioners “were denied the ability to raise their proposed constitutional defenses of the Department’s Title IX Rule despite the fact that the Department refuses to raise those defenses, which conflict with the Department’s own interests in the litigation.”

But the Biden administration seems to want to restore the Obama-era rule that stripped accused students of procedural safeguards, critics say.

The Education Department announced in April that it would carry out a “comprehensive review of the Department’s regulations implementing Title IX of the Education Amendments of 1972, as part of implementing President Biden’s March 8 Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”

“Building educational environments free from discrimination, where our nation’s students can grow and thrive, is a top priority of the Biden–Harris Administration,” Cardona said.

“Today’s action is the first step in making sure that the Title IX regulations are effective and are fostering safe learning environments for our students while implementing fair processes. Sexual harassment and other forms of sex discrimination, including in extracurricular activities and other educational settings, threaten access to education for students of all ages. As Secretary, I will work to ensure all students—no matter their background, who they are, or how they identify—can succeed in the classroom and beyond.”

The Department didn’t respond to a request for comment by press time.

Correction: In the first paragraph, “three conservative groups” was changed to “three groups” on Aug. 8. The Foundation for Individual Rights in Education identifies itself as “proudly non-partisan.”