BREAKING: New Title IX regulations undermine campus free speech and due process rights

WASHINGTON, April 19, 2024 — With the release of new Title IX regulations today, the Department of Education encourages institutions of higher education to violate students’ free speech rights and to eliminate essential due process protections for students accused of sexual misconduct. 

“Justice is only possible when hearings are fair for everyone,” said FIRE Legal Director Will Creeley in a statement. “Today’s regulations mean one thing: America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding.”

The new regulations eliminate vital procedural protections secured in the 2020 Title IX regulations. They stand at odds with over 250 court cases across the country that have issued rulings in the last decade recognizing the necessity of fundamental fairness and the rights of all students. 

 We will continue to fight for free speech and due process until the Department of Education upholds these rights once and for all.

Highlighting the threats to student rights, FIRE warned the Department of Education against adopting many of the changes mandated by the new regulations in a formal comment on the proposed rules submitted in 2022. 

Today’s regulations undermine the basic elements of due process in Title IX proceedings, including: 

• eliminate the right to a live hearing to contest the allegations;
• eliminate the right to cross-examine one’s accuser and witnesses; 
• weaken the right to be represented by lawyers in campus sexual misconduct expulsion proceedings; and
• allows for the return of the “single-investigator” model, in which a single administrator serves as prosecutor, judge, and jury. 

In addition to eroding the fundamental fairness of campus proceedings, the new regulations also threaten student free speech rights. The regulations replace the 2020 regulations’ definition of student-on-student harassment with a more expansive, less speech-protective definition that departs from Supreme Court precedent.

FIRE’s comment to Department of Education: Your proposed Title IX regulations are unconstitutional

News

FIRE submitted a public comment criticizing the Department of Education’s proposed Title IX regulations, including the elimination of live hearings.

Read More

The situation on the ground is more favorable for students in states that have adopted FIRE’s model campus due process bill, which protects students’ rights to a live hearing and cross-examination and prohibits the use of a single-investigator model. Last month, Utah enacted a version of the bill with overwhelming bipartisan support. Other states include Kentucky and Louisiana.

FIRE will continue to push for its passage in states nationwide. 

“FIRE has been fighting the Department of Education’s attempts to excuse schools’ violations of student free speech and due process rights for two decades,” said Tyler Coward, FIRE’s lead counsel, government affairs. “We will continue to fight for free speech and due process until the Department of Education upholds these rights once and for all.”

The final regulations go into effect on Aug. 1.

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

FIRE thanks Professor KC Johnson for his work compiling rulings recognizing the necessity of fundamental fairness.

CONTACT:

Daniel Burnett, Senior Director of Communications, FIRE: 215-717-3473; media@thefire.org