The long-awaited Title IX regulations governing campus disciplinary proceedings have finally been issued. They are designed to encourage victims of sexual discrimination to come forward, promote access and efficiency, help schools maintain a safe environment for learning, and foster institutional and civic values. That, at least, is how the Department of Education has advertised them—and how the media has, in the main, reported on them.

This article agrees that protecting survivors by preventing revictimization is a critically important objective. It also takes the Department of Education’s carefully articulated justifications for its wholesale changes at face value.
That said, what has been largely overlooked is that in certain central respects, the finalized regulations seek to achieve these laudable objectives by making it significantly easier for university and college administrators to remove or otherwise discipline allegedly problematic students and staff. Unfortunately missing, however, are sound policy justifications striking the appropriately careful balance between the protection of the accused and the protection of the allegedly abused.

Of particular concern are: The adoption of the “single-investigator” model option under which those investigating the allegations and initiating charges can also determine the accused’s ultimate factual guilt; the move to a lower default standard of proof for establishing violations; the removal of the accused’s right to a live hearing; and the elimination of the right to present expert witness testimony.

These components of the final regulations risk trading crucial due process protections and truth-seeking mechanisms for administrative efficiency. They also undermine the fundamental principle of justice that everyone, regardless of the accusation, deserves a fair and impartial hearing when the stakes are high.

This article underscores the importance of continuing the discussion about the revised regulations. It explains why the efforts to maximize institutional ease raise serious questions about procedural fairness and the factual accuracy of campus “guilt” determinations.

The article concludes that these concerns, along with the potential to exacerbate discrimination against historically marginalized populations, should be at the forefront of the debate. The legitimacy of Title IX enforcement is at stake. This is bad news for the accused, their accusers, and the system as a whole.