Biden Wants to Bring Back the Due Process Double Standard

When then-candidate Joe Biden was accused of a violent sexual assault by a former staffer, Tara Reade, he claimed that the allegation wasn’t true. When it was him being accused, Biden didn’t want the public to simply “believe all women.” Instead, in his official statement, he called on news organizations to examine and evaluate inconsistencies in Reade’s account. He said her version of events “should be subject to appropriate inquiry and scrutiny.”  

But is Biden in favor of due process for me, but not for thee?

Now, as President, Biden is questioning whether students accused of sexual harassment deserve the same right to examine, scrutinize, and challenge the allegations against them.

On March 8, 2021, Biden issued an Executive Order calling on the Department of Education to review regulations enacted under Secretary Betsy DeVos. Those regulations, announced last year on May 6, 2020, enshrined, for the first time, protections against sexual harassment into Departmental regulations, and offered numerous new protections for survivors of sexual harassment.

They also took a major step forward to enhance due process protections for both accusers and accused students, like requiring schools to engage in robust investigations, and allowing both parties the right to cross-examine witnesses. The rules stood up in court, despite a coordinated attack by the ACLU and other activist groups in front of judges in Maryland, Washington, DC, and New York. The regulations even won praise in some unlikely circles, with some noticing that, under earlier guidance issued during the Obama Administration, many black male athletes had been accused of sexual harassment and not given appropriate due process before being found guilty.

But the regulations have a target on their back now that Biden is in the White House, from groups who say that due process procedures only make it harder for victims of sexual harassment to come forward. Even though the regulations have survived every court challenge to date, Biden’s Executive Order has now instructed the Department to consider “suspending, revising, or rescinding” them.

Put aside for a moment the matter of whether Biden—much less the Department of Education—can “suspend” validly enacted federal regulations. The more important question is whether we’ll see the gutting of due process protections and the regulations more broadly—which offer new rights to both sides in any case of alleged sexual harassment—and the emergence of a policy requiring that all accusers are to be believed, regardless of circumstances.

Put simply, Biden is entitled to have the allegations against him subject to investigation and scrutiny; why aren’t the same rights given to students on campus?

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