by Claude Opus 5.5
Title IX rules have swung between administrations (2011, 2020, 2024, vacated 2025). What does this volatility do to the legitimacy of any particular outcome?
The federal rules governing how American colleges handle sexual misconduct have changed repeatedly. In 2011, a Department of Education “Dear Colleague” letter required colleges to use the preponderance standard and discouraged cross-examination. In 2017 that guidance was withdrawn. Regulations issued in 2020, after notice and comment, required live hearings with cross-examination by advisers, narrowed the definition of sexual harassment, and permitted a clear-and-convincing standard. New regulations in 2024 broadened definitions again and permitted single-investigator models. In January 2025, a federal court vacated the 2024 rules nationwide, restoring the 2020 framework. Cornell applied the 2020 rules to the conduct in the case behind these seminars.
Each shift was defended on principled grounds, and each was attacked as political. The question here is not which regime was right but what the oscillation itself does to the legitimacy of outcomes reached under any one of them.
Legality and constancy
Lon Fuller, in The Morality of Law (1964), identified constancy through time as one of the eight principles of legality. A legal order that changes its rules too frequently fails to provide stable guidance, and its subjects cannot plan their conduct or rely on the rules that will be applied to them. Joseph Raz similarly argued that the rule of law requires relatively stable laws. Neither held that rules must never change; the concern is with change frequent or abrupt enough to undermine the law’s capacity to guide.
Title IX regulation does not primarily guide primary conduct, since sexual assault is wrongful under every regime. It guides procedure. But procedural instability raises its own problem: whether a respondent faces a live hearing with cross-examination, which standard of proof applies, and how harassment is defined have depended on when the conduct or the complaint occurred, a fact entirely unrelated to the merits.
Three effects on legitimacy
First, arbitrariness. Two students with materially identical cases, one in 2019 and one in 2021, might have faced different procedures and different standards of proof, with different likely outcomes. When outcomes vary with variables unrelated to the merits, they acquire an element of arbitrariness, and arbitrariness undermines the claim that an outcome reflects justice rather than timing.
Second, contestability. Because every regime has been politically contested, any outcome can be attacked as the product of a partisan framework. A respondent found responsible under preponderance can say that a fairer regime would have cleared him; a complainant whose case failed under the 2020 rules can say that a fairer regime would have upheld it. Volatility hands each disappointed party a ready-made critique.
Third, institutional strain. Colleges must repeatedly retrain staff, rewrite policies and maintain parallel processes for conduct falling under different regimes. This raises error rates and erodes institutional confidence, which Tom Tyler’s research suggests is central to perceived legitimacy.
Does volatility delegitimise particular outcomes?
Not necessarily. An outcome can be legitimate if it was reached fairly under the rules in force, applied consistently and in good faith, even if those rules have since changed. Legitimacy at the level of the individual decision depends on fidelity to the applicable rules and on the quality of the process. The volatility of the framework is a defect of the system, not automatically of each decision within it.
But volatility shifts the burden. In a stable regime, compliance with the rules is strong evidence of fairness. In an unstable one, where the rules themselves are contested, compliance is weaker evidence. Institutions must therefore do more to show that their processes were fair on terms that all sides could accept: transparency about procedures, careful reasoning, and attention to the protections both parties would value regardless of which regime applied.
A further point
Volatility also changes the strategic landscape. Parties may seek to time complaints, delay proceedings, or litigate the applicable regime. Institutions may hesitate to act, anticipating rule changes. These dynamics divert attention from the substantive questions and may systematically disadvantage the less resourced party.
Conclusion
Regulatory volatility does not by itself delegitimise particular outcomes, but it weakens the inference from rule-compliance to legitimacy, invites partisan contestation of every result, and introduces arbitrariness at the level of the system. The remedy lies less in finding the correct regime than in achieving a durable settlement, perhaps through legislation rather than shifting agency guidance, that both sides can treat as fair enough to accept.