On this episode, we talk with GianCarlo Canaparo about his recent piece covering President Biden's changes to Title IX, which governs sexual assault and harassment investigations on college campuses. These will eliminate fundamental due process rights, and put students in a prisoners’ dilemma, coercing them into unnecessary opposition while undermining justice.
Tim Doescher: Hey, everyone. We just wanted to give you a heads up that this week's episode contains adult themes. So if you've got kids in the room, you might want to put the headphones in for this one, or just go to another room. Okay. Let's get into the episode.
Doescher: From The Heritage Foundation, I'm Tim Doescher, and this is Heritage Explains.
Doescher: I was reading a piece posted on the Daily Signal recently, that totally caught my attention. It said, in part, President Biden is pursuing a policy that will eliminate due process rights for college students, by encouraging half naked students to race across the commons, to be the first to file a sexual harassment charge against their erstwhile paramours. Erstwhile paramours. I don't know if I've ever heard that term before. So yeah, it's safe to say, I'm intrigued. But first, let's get the facts. It all starts in Cincinnati.
Doescher: According to that Daily Signal piece, a few years ago, two students at the University of Cincinnati got drunk and had a one night stand. Now, because they were both drunk, under the college's sexual assault rules, neither one could give consent, and both were guilty of sexual assault. The next morning, the male student woke up first, and terrified that his partner would lodge a sexual assault complaint against him, he rushed to the Title IX office and filed a complaint against her. At the time, the school followed Obama administration guidelines, that virtually guaranteed that every accusation led to punishment, no matter what the facts were. The result, the girl involved was found guilty of sexual assault and she was suspended.
Doescher: So what is Title IX? Well, it's a federal statute that governs sexual assault and harassment investigations on college campuses. Currently, accusations require a higher standard of proof, consisting of things like, live hearings, and cross examinations, and a chance to speak to counsel. The goal is to enable a fair campus justice system that doesn't deny the accused due process. These are all good things. However, the Biden administration is proposing changes to Title IX, that would effectively, eliminate these safeguards, and put students in sort of a prisoner's dilemma, coercing them into unnecessary opposition. Or, as Caitlin Flanagan asked, in the Atlantic, is it possible for two people to simultaneously sexual assault each other? Great question, Caitlin.
Doescher: On this episode, we talk with GianCarlo Canaparo, he's a legal fellow in the Meese Center, here at The Heritage Foundation, and also the co-host of the SCOTUS 101 podcast, which by the way, all of you should follow. GianCarlo is going to break down this issue, and explain this real life prisoner's dilemma, that has a far reaching lose-lose scenario for our fundamental rights. We'll get into it after this.
Doescher: GianCarlo, the piece you do with Stephanie Luiz, does a great job summarizing the University of Cincinnati case. After a casual, consensual affair, the guy makes a Title IX claim against the girl, and she's automatically suspended, without any due process. So before we go any further, just start us out, and explain Title IX.
GianCarlo Canaparo: So Title IX is a law that says any university that accepts federal money, which is almost everyone in the country, has to have rules in place to govern sexual assault accusations between students. So universities had, for a long time, sort of promulgated their own rules. And there hadn't really been sort of problems or controversies about them. But then all of a sudden, President Obama comes along, and he issues a letter to schools. And he says, we're not requiring you to issue these, sort of what they call, survivor centered rules, which essentially, just wipe out due process protection for the accused.
Canaparo: He says, "We're not going to require you to do it, but, if you don't do it, we'll probably, we're going to think real hard about taking all your money away."
Doescher: Oh man. Okay.
Canaparo: So all these universities, in part, because they're afraid of losing money, but also because, the administrators tend to be the most rabid of the left wing, sort of woke nuts, decide, oh yeah, we are very happy to do this. We are very happy to eliminate-
Canaparo: ... due process protections-
Canaparo: ... because we're all about protecting alleged survivors of sexual assault. Which, of course, is a great goal.
Canaparo: But you've got two process concerns that you need to think about, but they don't care.
Doescher: Go through what due process looks like in a situation like this. What should it have been, for this young lady in Cincinnati?
Canaparo: Yeah. So what should have happened is, she should have been, first of all, told, that this accusation had been made against her.
Canaparo: And the nature of the accusation. So any evidence that investigators gathered, should have been presented to her, so that she can look at it. She should have been allowed to have a lawyer present, or at least, some kind of advocate from campus, from the administration, acting on her behalf. She should have been able to say, "Look, we were both in the same position here. Nobody actually sexually assaulted anyone. We did what college students so often do, which is, we got drunk and we hooked up."
Canaparo: "... and nobody actually, sexually assaulted anyone here. And if there was any sexually assault thing going on, it was mutual. And we should just both agree to sort of walk away from this." She should have been, had the right to have a hearing, where she got to explain this. Where she got to cross examine him, and say, "Didn't you get drunk last night too?"
Canaparo: Yes. "Didn't you come back to my hotel room?" Yes. "Didn't we both do all of the same things?" Yes. But none of that happened.
Canaparo: So she didn't get any of that. Right. She was immediately suspended, and then subsequently, expelled, after this process worked its way through the administration, without her.
Doescher: It's amazing to me, that this kid that was running through campus, wrapped in a bed sheet, whatever, knew about this.
Doescher: It's amazing, that he had the wherewithal to say, "I got to do this." Meaning, that, they had been made aware of this.
Canaparo: Yeah. These kinds of cases are just happening everywhere, all the time.
Canaparo: In another case that attracted a lot of news, and they're in court, and there's news about these, but another very famous one. Two students had a purely consensual romantic encounter.
Canaparo: But, there was a third party who was jealous of these two. Because, if memory served, she had an interest in the man involved-
Doescher: Okay. Yeah.
Canaparo: ... and was jealous, and didn't like the girl involved. So she accused one of the two of them, of sexual assault, even though both of them had perfectly consented to this with each other. But, because suddenly, there was an accusation, this whole process kicked off, and the accused party was suspended,-
Canaparo: ... and expelled from the school, because of a third party accusation, that turned out to be totally bogus. But the school didn't care, and didn't give her an opportunity to defend herself.
Doescher: I just think, it's amazing. Like we are legitimizing bad reality television premises, through federal fiat,-
Canaparo: Oh absolutely.
Doescher: ... through this.
Doescher: This is terrible.
Canaparo: Right. And in the meanwhile, the downside too, is, not only is this absolutely laughable and ridiculous-
Canaparo: ... but you've got college students who have done absolutely nothing wrong,-
Canaparo: ... being suspended. Not only are you kicked out of school... I mean, even assuming that you win, in a subsequent lawsuit,-
Canaparo: ... you've spent years, kicked out of school.
Canaparo: No other school is going to take you.
Doescher: Right. Of course, not.
Doescher: So, all right. So, that was Obama. Obama put that in.
Doescher: You had crazy cases, like the one in Cincinnati. And then, Trump comes in.
Doescher: And his Department of Education curtailed it. They brought it back a little bit. What would happen there?
Canaparo: So what they had to do was actually, more complicated, because Obama didn't issue formal rules. Right? It was just a letter.
Canaparo: And he sort of banked on very woke, left wing administrators, happily going along with it.
Doescher: It's good that they did.
Canaparo: Which they did.
Canaparo: Right. So President Trump, and Education Secretary DeVos, had two things to do. They had to, not only, reign in retract the letter, but they had to actually, write and promulgate better rules. Like an actual set of rules that schools had to follow. So that took some time. And then took some time to get through the rule making process and lawsuits,-
Canaparo: ...trying to block them from doing it. But they did. They got those rules in place. And we didn't see any more of these, sort of absurd stories.
Canaparo: Because there were some basic due process protections in place. Now, of course, Biden has come into office, and is doing his level best to rescind these rules.
Canaparo: We expect, I think, probably, in the beginning of 2022, he will issue new rules, which will be a formalization of Obama's letter.
Doescher: So, back and forth,
Doescher: ... back... Okay. What do we gain, as Americans, from limiting due process rights from people like... And reinstating these rules?
Canaparo: Yeah. It's all part of this ongoing cultural push-
Canaparo: ...that the administration is doing. Whether it's, Biden's 30-some odd orders on equity and racial justice, or transgender policy, or, you name it. But one of their cultural items is this idea that, anyone accused, or who says they're a victim of sexual assault, should be believed.
Canaparo: Right. No matter what.
Doescher: So like the, Me Too, kind of-
Doescher: ... springing out of that?
Canaparo: Right. Just taken... Right. I mean, this is an administration that's basically run by Twitter. Right?
Doescher: Yeah. Wow. Yeah.
Canaparo: By the left wing advocates on Twitter. The most left of the left, and they just really, don't particularly, care about how these things work out, provided that they feel righteous.
Canaparo: And that's what this is. This is an attempt to feel righteous by protecting victims, at the expense of anyone who is accused, at the expense of their due process rights.
Doescher: It's amazing, because... I was just reading some of this. A lot of people on the left were not in support of Obama's initial rule on this.
Canaparo: Yeah. That's right.
Doescher: Saying that, this is not how things, this is not how it should work.
Doescher: And so obviously, we want the thing here. We don't want there to be a complete lack in decorum, and sexual assault happening all over the place. We got to walk the line here, but it has to be done with due process in mind.
Doescher: It has to be.
Canaparo: Which is why-
Doescher: Yeah, go ahead.
Canaparo: Which is why I say, this is an administration run by Twitter, and not real people. Because, there are plenty of people on the left, who don't think this is a good idea. In fact, I think the vast majority of people think this is nonsense. But you get a very tiny, but very powerful, minority of very far left people, running this administration, and running college campuses, who are perfectly fine with this.
Doescher: Yeah. Yeah. Well, I mean, is there any pushback to this? Or are they just going to get away with it, and we're going to have to deal with it until another administrative comes in? Is that how this is? Or is Congress stepping in? How does this look?
Canaparo: I mean, Congress could step in, and should step in-
Canaparo: ... but it won't. What we've seen over history, is that Congress is very happy to give the Executive agencies the power over all of this kind of stuff, because it spares Congress from having to take any responsibility. Which is really a shame. But are two avenues of pushback. Number one, the Biden administration, when it promulgates these new rules, is going to have to comply with something called, the Administrative Procedure Act. And it's a rule, it's a law, that sets a lot of procedures about how an administration creates rules. And it's procedure, it's ticky tacky. The administration can get around it. But, the Biden administration has proved itself extremely sloppy about complying with the APA. So, I imagine that there will be probably, a couple rounds of successful challenges, saying that, you rushed the promulgation of these rules. But that's only a delay.
Canaparo: But there has been some success in the courts, where the courts will get these cases. Somebody gets suspended, for one of the cases, for something like this, and goes to federal court, and says, "I was denied due process." Those cases are actually difficult to make. Because, Title IX, Congress, when they passed the law, gave schools wide latitude to promulgate rules, which don't necessarily, comply with what you, and I, and normal people, consider to be due process standards. But some of those challenges, in the most egregious ones, are having success. And not only do they force colleges to reevaluate their lax rules, but they also, sometimes, impose significant financial costs on colleges. So if students win more of these, that creates a disincentive for colleges to promulgate rules like this. But the problem is, if students win more of these lawsuits, that means that they're losing more of these hearings in colleges, in the first place. And that's a real harm, from the beginning.
Doescher: GianCarlo, This has been great. I really appreciate you coming in here, and doing this episode with us.
Canaparo: My pleasure.
Doescher: And that's it, for another episode of Heritage Explains. Thank you so much for listening. I've gone ahead and linked to GianCarlo and Stephanie's piece in the show notes. So please, head over and check it out, if you want a little bit more context. Also, subscribe to us, like us, share us, comment, whatever you want to do. We love the engagement, and we thank you for it. We'll be back next week, with a brand new episode.