Evading Title IX: The Two-Track Approach

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CounterCurrent: Week of 9/6
Evading Title IX: The Two-Track Approach

CounterCurrent is the National Association of Scholars’ weekly newsletter, bringing you the biggest issues in academia and our responses to them.
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Category: Title IX; Reading Time: ~2 minutes
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** Featured Article - Title IX and Targeting the Two-Track Approach by Teresa Manning ([link removed][UNIQID])
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In May, Secretary of Education Betsy DeVos took the much-needed step of introducing new Title IX regulations ([link removed][UNIQID]) , guidelines designed to help put an end to the rampant injustice and corruption present in campus Title IX proceedings.

The thrust of DeVos’ updated regulations is twofold: first, they redefine the sexual harassment under Title IX’s purview to be that which is “severe and pervasive.” This is closer to Supreme Court precedent and will place many more cases in the hands of law enforcement, not Title IX officers, the majority of whom lack legal training.

Second, the regulations return justice and fairness to Title IX proceedings, including requirements of in-person cross-examination, of the accused to know the charges leveled against them, and of the presumption of innocence. Yes, these are all part of the new regulations and were not previously required practice.

But not everyone is a fan. Shortly after being introduced, DeVos’ regulations faced four challenges in court ([link removed][UNIQID]) —from a group of blue-state Attorneys General, the state of New York, the National Women’s Law Center, and the American Civil Liberties Union. Thankfully, these efforts failed. The regulations are officially in effect as of August 14, and American colleges and universities receiving federal funding should be in current compliance.

And yet, as we have seen in other areas ([link removed][UNIQID]) , schools with a penchant for disobeying federal law will find a way to sidestep regulations they don’t like. Enter what the NAS has termed the two-track approach. Colleges and universities will claim to comply with the new regulations, but only within the confines of the Title IX office itself. For example, at least two schools, Princeton and Tulane, have announced plans to create separate offices through which they will enforce their own sexual harassment policies. We expect many more to follow.

In this week’s featured article ([link removed][UNIQID]) , NAS Policy Director Teresa Manning explains why we must keep a close eye on the two-track approach as it unfolds, for the sake of our students, professors, and staff. She writes:

Is this a move to evade the new due-process requirements? At Princeton, for example, its separate track allows for written cross-examination of witnesses, while the Trump [DeVos] regulations require a live hearing with in-person questioning of parties and witnesses, stating, “Such cross-examination at the live hearing must be conducted directly, orally and in real time by the party’s advisor of choice.”


NAS needs your help ensuring that America’s colleges and universities abide by the new Title IX regulations. We encourage you to visit your schools’ website and read what, if anything, has been announced about updated Title IX policies. If you notice anything contrary to the new regulations, or that your institution has not made an announcement at all, please let Teresa Manning know at [email protected] (mailto:mailto:[email protected]) .

Until next week.

John David
Communications Associate
National Association of Scholars
Read More ([link removed][UNIQID])
For more on Title IX and American higher education:
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July 09, 2020


** The New Title IX and its Challengers ([link removed][UNIQID])
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KC Johnson

The newly issued Title IX regulations have faced four primary groups of opponents filing lawsuits. Professor Johnson analyzes the different critiques.

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June 03, 2020


** Controversy and Confusion ([link removed][UNIQID])
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National Association of Scholars

NAS critiques AAUP's response to the new Title IX regulations. We urge the association to return to a careful and balanced approach, fitting to an organization of university professors.

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March 19, 2020


** Title IX Toolkit ([link removed][UNIQID])
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Teresa Manning

For your reference: the basics on the history of Title IX, how it is used today, and why we seek reform.

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October 28, 2019


** Jury Awards $100,000 to Wrongly Accused Student in Title IX Case ([link removed][UNIQID])
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Teresa Manning

Boston College appeared to have complete disregard, perhaps malicious disregard, for the wrongful treatment of one of its own innocent students. Is that what Title IX has become?


** About the NAS
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The National Association of Scholars, founded in 1987, emboldens reasoned scholarship and propels civil debate. We’re the leading organization of scholars and citizens committed to higher education as the catalyst of American freedom.

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