Democratic governors undermine Biden Title IX rulemaking by expanding due process for students

Louisiana joins Kentucky this year in letting lawyers actively represent students in campus disciplinary proceedings, including cross-examining witnesses. Pelican State's new campus speech law incorporate SCOTUS standard Biden wants to junk.

Updated: July 2, 2022 - 4:31am

Protecting due process in campus disciplinary proceedings is taking an increasingly bipartisan turn, with Louisiana joining Kentucky as states where Democratic governors signed legislation from Republican-led legislatures in just the first half of the year.

The moves complicate the Biden administration's attempted rollback of its predecessor's regulation on Title IX sexual misconduct proceedings, which required due process protections including live hearings, direct cross-examination and evidence-sharing. 

Department of Education Office for Civil Rights Director Catherine Lhamon, who served the same role in the Obama administration, went so far as claiming in 2020 the newly finalized Trump administration regulation "permits students to rape and sexually harass with impunity." She didn't reject that assessment in a confirmation hearing last year.

The 60-day public comment period for the proposed new regulation, issued last month, has not started because it has not yet been published in the Federal Register.

Louisiana's new due process protections for nonacademic proceedings at public colleges (HB 364), like Kentucky's law signed in April, are not specific to sexual misconduct proceedings but would neuter much of President Biden's Title IX proposal for students in The Pelican State.

They include the "express presumption of innocence" for students and student organizations and the right to hire "an attorney or a non-attorney advocate who may fully participate" in proceedings or other procedures, including by cross-examining witnesses. 

"Providing counsel to students that are faced with a disciplinary action is probably a very good thing," University of Louisiana System President Jim Henderson testified at an April 27 committee hearing

The students are typically 18-22 years old and "can feel intimidated" in proceedings, so letting them bring lawyers "really doesn't hurt the process if our policies are well founded, well articulated, and we're being objective in our approach," he said, criticizing the "reflexive loss-mitigation approach" of administrators. 

Colleges must give accused students advance notice of alleged violations of specific policies and the evidence behind them and "reasonable continuing access to the administrative file," including copying privileges, for both parties.

Importantly, colleges must provide all evidence, even if potentially exculpatory, and bars "commingling of administrative or adjudicative roles": A different person must serve as victim advocate, investigator, "institutional prosecutor," adjudicator and appellate adjudicator. 

The Biden proposal merely requires sharing of "descriptions of relevant evidence ... orally or in writing" and resurrects the "single investigator" model, in which one person both investigates and decides innocence or guilt.

Six more states already provide due process protections for students, according to a tally by the Foundation for Individual Rights and Expression (FIRE): Arizona, Arkansas, Florida, North Carolina, North Dakota and Ohio. 

In addition to the due process bill, Louisiana approved campus speech protections that have bearing on some sexual misconduct proceedings in a separate bill (HB 185) in June. 

It adopted the Supreme Court's three-part test for student-on-student harassment, joining Alabama, Arizona, Arkansas, Georgia, Indiana, Louisiana, Montana, North Dakota, Ohio, Oklahoma, Tennessee and Utah, according to FIRE's speech-law tally.

The 1998 Davis precedent, which is also in Trump's Title IX regulation, defines harassment as conduct "so severe, pervasive and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Biden's proposed regulation would replace it with two either/or standards: "severe or pervasive" conduct that "denies or limits" access.

Former Trump administration Title IX lawyer Hans Bader explained speech-related problems with the proposed changes in an essay for Minding the Campus.

"Right now, campus speech — such as discussion of sexual issues — is not harassment just because it is 'pervasive' — as all widely-held viewpoints about sex and gender are," he wrote. "The speech must also be 'severe,' such as calling a woman a gender-based epithet."

But the Biden proposal could endanger "viewpoints that are mildly offensive to progressive civil rights bureaucrats," while "comments by different students could apparently be lumped together in finding that the comments collectively amount to harassment, even if each individual comment is mild and not intended to harass," Bader said.

FIRE said it had a hand in both bills' drafting and passage with "overwhelming bipartisan support." The Louisiana Senate passed both 34-0, while the House passed the due process bill 97-0 and free speech bill 70-21.

Louisiana already had a campus free speech law, but HB 185 added the Davis definition of harassment, which is missing from another 11 states with campus free speech laws in FIRE's tally: California, Colorado, Florida, Iowa, Kentucky, Missouri, North Carolina, South Dakota, Texas, Virginia and West Virginia.

Other additions: Colleges may not charge security fees for events based on the viewpoint of the student, organization or "invited guest" or the "anticipated reaction" to the message, or restrict protests and demonstrations unless they create a "substantial and material disruption to the functioning of the institution."

FIRE Legislative Fellow Greg Gonzalez told Just the News his newly expanded organization doesn't anticipate working with more state legislatures on similar bills until next year because most have adjourned.

He emphasized the due process and speech laws in its tallies have varying protections and also explained why FIRE exempts other states.

Maryland's right-of-attorney law is only for sexual misconduct proceedings and even then prohibits counsel from "actively representing" the parties, for example. California's speech law holds most private institutions to First Amendment standards rather than codifying protections at public institutions, so "we typically do not include it in our count," Gonzalez said.