College Joe Meets Biden’s Title IX

What if? A counterfactual thought experiment follows. Any relationship to persons living or dead is completely intentional.

What is completely factual is that on June 23, the 50th anniversary of Title IX, the Biden administration announced proposed changes to the regulations that govern application of that law. If implemented, they will build on earlier moves when Biden was vice president to tilt Title IX investigations in favor of complainants (described consistently as “victims”) at the expense of fairness, due process, and the time-honored assumption that the accused is innocent until proven guilty. 

This is dangerous for two reasons: bungled investigations might let the guilty walk free, and they are likely to ruin the lives of the innocent. As a Fifth Circuit judge pointed out in dissent in one of the leading appellate cases involving the Obama-era regulations, “I would hold that several features of the process to which [the plaintiffs] were subjected, most prominently the intermingled and inherently conflicting duties of [the university’s Title IX coordinator], violated their due process rights against quasi criminal charges of sexual assault and facilitating sexual assault.” The current proposed changes seem destined to elicit a similar response. 

Let’s set our counterfactual in 1961 at the University of Delaware, which in this scenario has just adopted the kind of regulations that the Biden administration has now introduced.   

In 1961, a handsome young man named College Joe enrolled at the university. He played freshman football and enjoyed the fraternity parties and college mixers. As a sophomore, he continued his studies and got elected as class president. 

Then, in his junior year, a woman whom we will call “T” lodged a complaint against him for sexual assault during their freshman year. She claimed that he kept putting his hand on her shoulder and ran his finger up her neck in a suggestive, sexual way. She called the unwanted touching deeply traumatic and brought a witness who said that she had seen College Joe put his hand on the shoulder of other women, too. Some awkward photos were produced. The witness called him “Creepy Joe.” 

By that time, the University of Delaware, like other institutions that receive federal funds, was operating under the new rules. The complaint was investigated by a single coordinator. College Joe was given only a report of the evidence against him. He could barely remember having met “T,” and in order to avoid further traumatizing the victim, the coordinator decided against holding a live hearing. College Joe got no opportunity to question “T” himself. His defense seemed vague. 

When the dust settled, the preponderance of the evidence showed that College Joe was guilty of sexual assault. Since the university was already under investigation for failing to prosecute sexual assault, the coordinator, backed by the dean, recommended significant punishment, and the university suspended College Joe for a semester. College Joe argued that he was being used as a scapegoat, but his argument fell on deaf ears. 

College Joe hoped that he could put this unpleasant episode behind him, but the law schools to which he applied demanded an explanation for the suspension and, upon hearing the reason, denied him admission.  

Meanwhile, sentiment among lawmakers ran high. A rising congressman named Mr. Polis, later to become governor of Colorado, stated in a hearing on campus sexual assaults: “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.” College Joe’s future became a casualty of crusading politicians who believed they would be “on the right side of history and progress.” 

We return to historical events. As vice president, Joe Biden declared in April 2011: “Today we are strengthening our response to sexual assault in schools and on college campuses. Students across the country deserve the safest possible environment in which to learn.” The response of which Vice President Biden spoke was a letter to colleges and universities, and under its provisions, as Emily Yoffe has observed, College Joe would have had little protection from the university’s prosecution. His life, and American history, would have turned out quite different. There would likely have been no attorney Biden, no Senator Biden, no Vice President Biden, and no President Biden. 

The currently proposed changes will lead to more such scenarios. When the changes were announced, Biden issued a statement celebrating the law and claiming that the work is not done: “My Administration will continue to fight tirelessly to realize the promise of Title IX – that every person deserves an opportunity to pursue their education free from discrimination and realize their full potential.” Ironically, he intends to roll back Trump administration reforms that would have given College Joe a fighting chance in his misconduct investigation to present his case. Is this hypocrisy? Or has virtue signaling gotten the best of President Biden’s memory?