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Biden Administration’s Proposed Title IX Regulations Public Comment Period Set to Close Today: 3 Days After Falsely Accused Day 2022

Litigation By Binnall Law Group - 2022/09/12 at 10:39pm

By: Ben North

         This year’s Falsely Accused Day, September 9, came only days before the public comment period is set to close – today – for the Biden Administration’s Proposed Title IX Regulations. On Falsely Accused Day, we remember that the capacity for dishonesty is part of the human condition and why it is important to trust the evidence in any dispute between two people. Whenever systems are arranged so that parties to a dispute have no power to advocate for themselves, the risk and incentive for false accusations increase. Unfortunately, that is exactly the kind of system the Biden Administration wants to create on campus: one in which there is little incentive against false accusation and where the school holds all the cards.

            Human beings respond to incentives. For some people, those incentives can cause them to do terrible, immoral things, including destroying someone else’s reputation for personal gain. Every person has within them the capacity to do this kind of harm. It is for this reason that we have systems in place to discern whether an accusation of wrongdoing has merit before we mete out punishment. We must be sure the person is guilty before we are willing to use institutional power to harm them in retribution. This conclusion only follows from the understanding that sometimes, accusations are meritless. Sometimes, people lie.

            We therefore need a system that incentivizes truthful accusations of wrongdoing while disincentivizing false accusations. We need a system that trusts the evidence in each case rather than relying on biases or prejudice.

Perhaps the last thing one would do in constructing such a system is expressly state that no one will be punished for bringing a false accusation or making a false statement. Yet, this is exactly what the Biden Administration proposes in its new Title IX Rule. At Proposed 34 CFR §106.45(h)(3), the Biden Administration plainly encourage false accusations by preventing schools from “disciplin[ing] a party, witness, or others participating in a recipient’s grievance procedures for making a false statement” during the Title IX process.

            Clearly, the current Administration does not appreciate the risk posed by false accusations. Granting blanket amnesty for even provably false accusations plainly encourages them. It fails to provide any incentive against false accusations. Such a rule does not follow from the same understanding of human nature; rather, it must be premised on an idea that a particular category of people simply does not lie. This is nonsense. Every human being has the capacity to lie. Students deserve better than to be thrown into a system that plainly encourages lies and false accusations.

To that end, please consider making a public comment to the Biden Administration at https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal. Encourage the Administration to create a fair system that protects against false accusations. Binnall Law Group will be doing so because we care about the truth.