According to an analysis posted by Kenin M. Spivak, founder and chairman of SMI Group LLC, an international consulting firm and investment bank, last week to The American Mind, a publication of the Claremont Institute, the regime will seek to dismantle due process via the Education Department's radical redefinition of "sexual harassment" and "sexual discrimination" under Title IX.
The objective is to deny tax dollars to any institution that refuses to adopt the new standards, which is a thinly veiled attempt "to advance its radical transgender and non-binary ideologies, unconstitutionally stifle dissent, and abrogate due process at American schools and universities," he writes.
He notes:
The proposed rule expands the activities subject to discipline under Title IX and, except for members of teachers’ unions, eviscerates due process protections for those accused of violating the new expansive definition of “sexual discrimination,” even if the alleged violation has nothing to do with the university’s mission and occurs outside the United States. Because the enforcement sections of the rule incorporate similar Obama-era rules that have been rejected by hundreds of courts, the Biden administration knows its rule is unconstitutional and unlawful.
Title IX, which was enacted in 1972, maintains: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
The U.S. Supreme Court, in its 1979 opinion Cannon v. University of Chicago, noted that the statute's goal is to "avoid the use of Federal resources to support discriminatory practices" while seeking to "provide individual citizens effective protection against those practices." At the time, women comprised a minority of college and graduate school students, Spivak noted.
The Clinton administration expanded the statute to include “conduct of a sexual nature." The Supreme Court, in Davis. v. Monroe Country Board of Education (1999), restricted the scope of Title IX to address student-on-student sexual harassment in institutions that receive federal funding only if officials had "actual knowledge" of harassment “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
The Obama regime went on to "weaponize" the statute even further "with a 'Dear Colleague Letter' (DCL) that required schools to provide access to facilities such as bathrooms, showers and dorm rooms based on gender identity, rather than biological sex," Spivak wrote, adding:
It defined sexual harassment broadly as “unwelcome conduct of a sexual nature; required only that the alleged harassment potentially “interfere with or limit” access, rather than “deprive” the victim of access and recommended that schools act on constructive notice, rather than actual knowledge. Furthermore it greatly reduced due process for those accused of sexual harassment, authorizing a “single-inquisitor” model by which the investigator, prosecutor, and hearing officer could be the same person, and reduced the accused’s rights to a hearing and to confront his accuser.
Title IX offices were expanded greatly and they began to focus primarily on pursuing allegations of sexual harassment while drastically limiting due process. Male students were targeted frequently based on flimsy allegations; some were falsely charged.
The Trump administration rescinded the DCL in 2017 but the left-tards who run colleges kept using the Obama-era guidance, leading Trump's Education secretary, Betsy DeVos, to issue "binding regulations that reversed most of the DCL and specifically required that schools accord substantial due process to individuals accused of sexual harassment," Spivak wrote.
Importantly, the Trump rules said that “Title IX cannot be interpreted in a manner that denies any person due process of law under the U.S. Constitution.”
Biden's regime has proposed new rules to essentially reconstitute Obama's DCL and withhold funds from schools that refuse to allow biological males to behave as females in all-female settings:
For the first time, the rule purports to govern conduct undertaken by members of the university community outside of the education program and outside of the United States. It also expands the definition of discrimination to include all “unwelcome sex-based conduct,” restores strict liability, and eliminates the Davis requirement that the discrimination deny equal access to education.
Also for the first time, the rule pre-empts state and local laws and, except for unionized teachers, reduces the standard of proof to a mere preponderance of the evidence, even as it makes it almost impossible for an accused to defend himself.
Infected by woke lingo, the rule removes references to the complainant as a “victim” because “victim” could be perceived as stigmatizing or a pejorative.
"Campus culture, heavily influenced by feminism, has long been hostile to conventional dating and traditional sex roles," observes Teresa R. Manning, who has written extensively on Title IX and directs the National Association of Scholars’ Title IX Project.
"It saw in Title IX a useful means to scrutinize and reshape social mores: current Title IX offices now hardly ever mention ‘discrimination’ or equal access to education. Attention is instead focused on sexual misconduct, sexual politics, and re-education," she added.
This is lunacy and, as Spivak noted, ripe for litigation.
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