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Biden popularity plunge continues as allies fume at slow pace of Trump reversals

Campus anti-rape activists accuse administration of using them as "political pawns." Due process groups warn courts DOJ won't defend Trump protections for accused students.

Updated: October 8, 2021 - 11:27pm

The love affair between campus anti-rape activists and their longtime champion Joe Biden, the architect of President Obama's Title IX policy, is cooling now that his administration is stuck between a regulation and a hard place.

Several groups held a protest Wednesday in front of the Department of Education. They accused officials of spurning "survivors" for refusing to deviate from the slow regulatory process to rescind and replace President Trump's Title IX regulation on campus sexual assault.

It's just the latest demographic to hit a rough patch with President Biden. His black support plunged by 12 percentage points in the wake of his COVID-19 vaccine mandates, pollster Morning Consult said last month.

His overall favorability ratings dropped below 40% in a recent Quinnipiac poll, and the poll analysis website FiveThirtyEight was surprised to find "no signs of a rebound" more than a month after the disastrous Afghanistan pullout.

The product of nearly three years of revisions and feedback from interest groups and the public, in line with the Administrative Procedure Act, Trump's 2020 regulation requires colleges to level the playing field between accusers and accused students. 

It started with education secretary Betsy DeVos rescinding the legally nonbinding "guidance" that Obama administration officials had nevertheless used to coerce colleges into depriving accused students of procedural protections or risk their federal funding.

The final regulation requires colleges to allow cross-examination by lawyers and use the same evidence standard for both student and employee sexual misconduct proceedings, whether the lower "preponderance" or the higher "clear and convincing" standard. 

On a private conference call with activists after DeVos announced the rulemaking, Biden compared supporters of due process in campus proceedings to "those Nazis" at the Unite the Right march in Charlottesville, Va.

That personal history ran headlong into agency prerogatives on Wednesday.

End Rape on Campus, It's On Us, Know Your IX, National Women's Law Center and Equal Rights Advocates presented the "ED Act Now" petition to deputy secretary Cindy Marten and Suzanne Goldberg, acting chief of the Office for Civil Rights (OCR), according to Inside Higher Ed

The petition, signed by 55,000 people, demands the department issue proposed changes by month's end and a "nonenforcement directive" pledging to neuter several parts of the regulation through inaction while the replacement is developed.

While the activists were "hopeful that we could meet a compromise," Marten and Goldberg "outright refused to respond to our reasonable demands and turned their backs on student survivors," Know Your IX manager Sage Carson wrote in an email to supporters last night.

Under the department's plan to propose rules in May, "we wouldn't get a new more effective Title IX rule until February 2024" using the timeline followed by DeVos, according to Carson. 

"I'm sick and tired of people in power asking survivors to share their trauma only to ignore their demands and turn their back on them," she wrote. Know Your IX tweeted that the administration "us[ed] us as political pawns."

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The Department of Education responded to a Just the News query to give its side of the meeting with activists, but did not further elaborate.

The copresident of due process group Families Advocating for Campus Equality (FACE), which often tangles with groups like Know Your IX, told Just the News she had never seen such a wide rift between the activists and Biden.

"[A]ll of a sudden OCR is not doing what they ask," Cynthia Garrett wrote in a Twitter direct message. "Guess it's difficult being treated like the rest of us."

While Biden's longtime allies are fuming at him for not risking judicial retribution with a slipshod regulatory proceeding, opponents are warning courts that his Justice Department will not give the regulation a robust defense against legal challenges.

The Foundation for Individual Rights in Education and other groups are petitioning the Supreme Court to resolve a federal appeals court split on when outside parties can defend a challenged law because the government does not "fairly represent" their interests.

A federal judge in Massachusetts rejected their motion to intervene in a challenge to the Title IX regulation, even though the Biden administration has "repeatedly mischaracterized, criticized, and threatened" the regulation, said FIRE, which sued to overturn the Obama guidance before DeVos rescinded it.

Accused students represented by FACE are seeking to intervene in the same challenge after the court in August blocked one provision of the regulation: its exclusion of testimony not subject to cross-examination. 

The Department of Education told schools it wouldn't enforce that provision and the court it wouldn't appeal that ruling, meaning the pseudonymous students face "imminent injury" in their own campus sexual assault proceedings, the brief said.

"Moreover, if the Department decides not to oppose any appeal by Plaintiffs relating to the 12 other parts of the Final Rule that they challenge," the students will have no other chance "to ensure those other protections afforded them by the Final Rule are a part of their disciplinary proceedings," they said.