The Title IX Juggernaut
There is little that any private or public university can do itself to stop the Title IX juggernaut, when even the federal government’s power to investigate imposes massive costs on private institutions, both in dollars and in reputation. The much-needed legal reforms must be done at the ground level so as to emphatically upend the coercive power of any guidance. The simplest way to do this is for courts to back off their current view that no individual can challenge a guidance on its face before facing its application. Any party that is subject to a guidance should be in a position to demand “de novo” review of the guidance, as I have argued elsewhere, which affords no deference to any procedures down below.
Government agencies are all too quick to presume that private parties are bad actors that need to be subject to stringent and relentless oversight. But as the sad saga of Grant Neal demonstrates, the second and more urgent truth embodies what Lord Acton wrote in 1887: “Power tends to corrupt, and absolute power corrupts absolutely.”