Biden-Harris Title IX rewrite a nightmare for colleges after clarity of Trump rules, experts say

WASHINGTON — When the Trump administration's Title IX campus sexual misconduct rule-making survived multiple legal challenges and took effect four years ago, an in-house lawyer at Tulane University feared its uniform due-process requirements – including full hearings for accused students – would cause "complete disaster" at some colleges.

Scott Schneider, now a hired gun for colleges on Title IX issues, told the Defense of Freedom Institute's education law and policy conference, co-sponsored by the Federalist Society, on Wednesday the rules actually worked pretty well, having "turned the temperature down considerably" and reduced litigation against schools.

The wisecracking consultant has the same message for Republican Donald Trump and Democrat Kamala Harris: Whoever is elected president in November, stop changing the rules.

Title IX experts including Wyoming GOP Rep. Harriet Hageman gamed out potential changes in light of new Supreme Court skepticism for agency authority and the general election, which pits two White Houses that devised the two most recent Title IX regulations against each other.

Lawsuits have blocked the Biden-Harris administration's much broader rule-making, which functionally restored the Obama administration's pro-accuser guidance and imported gender identity into the sex-discrimination law, in 26 states and a hodgepodge of school districts and colleges nationwide attended by plaintiffs or their children.

But the high court's recent elimination of so-called Chevron deference could also spell trouble for the Trump regulation where it remains binding on schools, given how "prescriptive" it is compared to the 37-word law it interprets, former Department of Education lawyer Candice Jackson, who helped write Trump's regulation, said on the conference's Title IX experts panel.

That would mean Congress has to clarify what exactly Title IX does and perhaps grant further rights and protections on due process and free speech that are currently covered by Trump's rules, Jackson said, prompting an incredulous laugh from Schneider.

The patchwork of rules under the Biden-Harris Title IX injunctions "screams for a legislative intervention," Schneider said, but "I don't know if we're capable of legislating anymore." 

Unlike Title IX's godmother, Oregon GOP Rep. Edith Green, today's lawmakers – Hageman excluded – prefer "hot takes" to the hard work of shepherding bills into law, he said.

"My response is, 'It says what it says,'" which is leveling the playing field based on sex, according to Hageman, a lawyer who fought the administrative state for the New Civil Liberties Alliance before knocking off Rep. Liz Cheney in a GOP primary in 2022.

The 1972 law empowered Hageman and her female classmates to secure new girls' sports at their tiny Wyoming school, she said. It also enabled her to take shop, welding and woodworking, then receive one of the first women's scholarships in the U.S. for "livestock judging."

She blamed Title IX confusion on Joe Biden as vice president, for President Obama's sexual misconduct guidance, and as president, for conflating sex and gender identity in the Title IX rewrite.

This is "distorting and bastardizing the English language," as is evident from "men kicking the hell out of women" in the most recent Olympic Games, Hageman said, referring to women's boxing gold medalists Imane Khelif and Lin Yu-Ting. Both were disqualified by the International Boxing Association for allegedly testing positive for male XY chromosomes. 

The Biden regulations don't define "gender identity" but spell out, in unusual detail, what discrimination on that basis means, according to Jackson, now representing female inmates in a high-profile challenge to California's gender-identity prison placement law.

"It goes a step beyond nondiscrimination" by requiring "accommodation and validation of a belief" – identifying as the opposite sex – when simply protecting people from discrimination based on a belief "could have been tolerable perhaps in the law," she said.

The administration has changed the law "at a conceptual level," stripping de facto legal recognition as a protected class from females, Jackson alleged. A sexual harassment complaint now would replace sex with the gender identity of all parties, whose real-world result in criminal court is that woman can't identify their rapists as male, she said.

Brooklyn College historian KC Johnson, who wrote a book on the Duke lacrosse rape case and meticulously tracks Title IX litigation involving alleged campus kangaroo courts, also credits Biden for the peril felt by colleges.

The then-vice president's staff drove the Department of Education's "Dear Colleague" letter in 2011, which threatened federal funding to colleges that didn't tilt proceedings toward accusers, Johnson said. 

Trump's Education Secretary Betsy DeVos, who was Jackson's boss, said the famously handsy Biden sexually harassed DeVos in 2019 under his own Title IX definitions.

Biden's staff "just kind of assumed that we were back in 2011" when he became president, enshrining Obama's technically nonbinding guidance but giving short shrift to public comments that questioned the proposed rules, which helps explain why courts faulted the regulations under the Administrative Procedure Act, Johnson said. 

Students in Maine, where he lives, have wildly different protections in sexual misconduct proceedings because of the college-specific injunctions, Johnson said. 

Bowdoin College is still bound by Trump's rules, but Colby College reverted to the "single investigator" model Trump's rules forbade, and Bates College has each party meet separately with a decision-maker after a separate official investigates, he said. The "more elite institutions … raced to get away from these procedural protections" before courts could stop Biden's rules.

Administration officials are "inviting colleges to walk into a legal buzzsaw" by imposing or allowing investigatory practices that courts repeatedly struck down, he said. 

Schneider said he has served as a single investigator in outsourced Title IX investigations and that the format falls apart with the wrong person in charge. 

He left Twitter, now X, after receiving "death threats" for finding that allegations against a "high profile" coach at a public university were "contrived" and backed by false testimony.

"If anything is ever a misnomer," it's the "passive-aggressive" Dear Colleague letter, Schneider cracked. He was at Tulane when its president implied Schneider would get the boot if the private New Orleans university showed up on the department's public "list of shame," used by Obama's and Biden's Office for Civil Rights chief Catherine Lhamon to compel compliance.

Three months ago, when Austin-based Schneider was representing a small private Texas college related to a long-dormant 2015 Title IX investigation, he said he heard from the department for the first time in nine years.

Lhamon's OCR demanded 10 years of disciplinary records starting in 1997 from his client, which prompted Schneider to respond "I think you all have lost your minds" and threaten to sue, which worked. The older he gets, "the meaner I get with regulators," Schneider said.