Miltenberg: “Due Process Advocates Cheer Overlooked Changes to Title IX Proceedings in DeVos Rules,” The College Fix


Gag orders banned, no more ‘Miranda dilemma’ The new Title IX regulation released by Education Secretary Betsy DeVos* Wednesday is getting high praise from due process advocates, mirroring their responses to the proposed rules 18 months ago. The Foundation for Individual Rights in Education pointed out they not only offer an “express presumption of innocence,” access to evidence and the option of choosing a lawyer to conduct cross-examination in sexual misconduct proceedings, but also “important protections for student free speech rights.” In codifying sexual harassment for the first time, the rules adopt the Supreme Court’s three-part test (“severe, pervasive and objectively offensive”) from Davis v. Monroe County Board of Education, ensuring that simply offensive or fleeting expression is not punished, FIRE said. The civil liberties group challenged the Obama administration’s Title IX “guidance,” nonbinding on its face but de facto enforced against colleges, in a 2016 lawsuit. “Institutions will finally have to guarantee due process for students caught up in campus kangaroo courts,” FIRE Executive Director Robert Shibley wrote in a Wall Street Journal op-ed. Lawyer Andrew Miltenberg, who has represented more than 200 students in due process lawsuits against colleges, praised the “one required protocol for Title IX investigations and hearings” codified in the Title IX regulation.

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