Title IX Uncategorized

Trump Administration Rollbacks Protect, Rather than Endanger, Civil Rights

The Congressionally-appointed U.S. Commission on Civil Rights, often labeled a “watchdog” group, has raised concerns about Secretary Betsy DeVos’ Department of Education and its enforcement of civil rights statues. But in reality, DeVos’ department is returning to long-held interpretations of civil rights guarantees such as Title IX and racial equity in school discipline, after President Obama’s administration pushed them far beyond their boundaries. Using his infamous “pen and phone,” President Obama often pushed the boundaries of statutory interpretation, moving beyond language designed to protect the equal rights of women and racial minorities to advance a far-left agenda that has had serious negative consequences on the ground.

Title IX guidance from the Obama administration has spurred the spread of kangaroo court-style sexual misconduct “trials” in universities. Just last month, a freshman at UC Davis spent months of his life and $12,000 defending himself in a Title IX court for a make-out session that was clearly not only consensual, but mutual. An African-American student is suing Brown University for discrimination after the university barred him from campus in which a girl “bit, choked, and pinned him,” but later filed a Title IX claim. The Obama guidelines produced a system so absurd that the roles of victim and perpetrator in a drunken hookup can be assigned by the order in which students report the incident.

Americans recently watched these reputation-destroying new norms metastasize onto the political scene in the Kavanaugh hearings, and poll results indicate they did not like what they saw. A large, bipartisan majority of 75 percent disagreed with the way the accusations against then-Judge Kavanaugh were handled by the Democrats, and almost 70 percent agree that false accusations are some type of problem in the workplace, directly contradicting the “believe all women” slogan of campus-style feminism.

Furthermore, having the opportunity to observe what was for all intents and purposes an Obama administration-endorsed Title IX “trial” play out on the national stage may have done long-term damage to professional and personal relationships between the sexes. In a new survey, 40 percent of men would rather be falsely accused of murder than sexual assault, compared with just 22 percent who preferred the latter, almost certainly because almost 60 percent of all respondents, men and women, said that men accused of sexual misconduct do not have the benefit of being presumed innocent absent evidence.

Are these the “civil rights” the U.S. Commission is concerned DeVos is not enforcing sufficiently? If so, Americans are indicating by wide margins that they would prefer the Department of Education focus on bringing to justice violators of the actual rights that Title IX is intended to protect, rather than engaging in witch hunts that upend other important rights-protecting norms like the presumption of innocence and cross-examination of accusers.

Likewise, investigations into school districts for racial disparities in discipline rates has produced not just bad policy, but arguably tragedy.

While specific incidents of suspected racial bias in public schools should absolutely be investigated, once again, the Obama Department of Education issued overly-broad guidance that strongly incentivized schools to move away from traditional discipline practices. The result in many districts has been that students who repeatedly engage in violent behavior have been slipping through the cracks. Most famously, the Parkland school shooter had no criminal record despite multiple potentially criminal behavioral incidents, due to the reluctance of the district to bring formal disciplinary charges or involve law enforcement. Those same Parkland policies were praised and pushed by the previous administration, with dubious statutory authority, in the name of “civil rights.”

Civil rights statutes are meant to ensure that students of color have the same opportunities to receive a public education as white students, not to micromanage the on-the-ground discipline decisions of teachers and incentivize districts to accept lax, sometimes dangerous, discipline standards. When the Trump administration undoes some of these attempts to push social policy well beyond the boundaries of civil rights law, it is not threatening rights in this country, but ensuring that federal law is enforced properly.

Two Commission on Civil Rights appointees voted against the politicized resolution condemning DeVos, and some speakers highlightedthe normalcy of the Department’s pushback against overbroad interpretations. “Conservatives, including conservative civil rights lawyers, tend to feel bound by statutory and constitutional text. As such, advocacy groups and others that want, in the absence of statutory authority, to advance issues such as transgender rights, are disappointed,” said Robert Driscoll, a former DOJ Civil Rights Division deputy assistant attorney general under the Bush administration.

DeVos’ more narrow interpretations of federal law will help to reverse some of the unintended consequences of the previous administration’s overreach. That the Department of Education is pulling back from some of the most extreme interpretations of the Obama era is not cause to worry that it is abandoning its obligation to enforce civil law statutes. Instead, DeVos’ insistence on staying within the boundaries of reasonable Congressional intent instead of legislating via administrative fiat is a welcome return to Constitutional governance.



The Good, the Bad, and the Ugly: SAVE Spotlights Media Coverage of Proposed Title IX Regulations, Nov. 17-25

Contact: Rebecca Stewart

Telephone: 513-479-3335


The Good, the Bad, and the Ugly: SAVE Spotlights Media Coverage of Proposed Title IX Regulations, Nov. 17-25

WASHINGTON / November 26, 2018 – In a continuing effort to promote balanced and fair media coverage of the recently proposed campus sexual assault regulations (1), SAVE has identified three articles published during the past week that reflect varying standards of journalistic rigor.

In the “Good” category, SAVE has selected “New Title IX Proposal Would Restore Fairness in Sexual-Misconduct Cases,” authored by Justin Dillon and published in the Chronicle for Higher Education (2). The author is sympathetic to the concerns of both parties. Regarding the needs of accusers, for example, he notes the new proposed rules would “return agency to the accuser. Mediation and restorative justice would be on equal footing with a full-blown Title IX investigation. Accusers could choose which form of resolution would most help them.”

In the “Bad” category, SAVE has identified “Betsy DeVos’ Sexual Assault Rules Would Let the Accused Cross-Examine Accusers,” written by Adam Harris and published in The Atlantic (3). The purpose of any adjudication system is to evaluate the veracity of an allegation, and it is widely recognized that cross-examination is one of the best methods for the ascertainment of truth. While Harris recognizes this fact, he inexplicably places higher priority on encouraging reporting than evaluating whether an accusation is true.

In the “Ugly” classification, SAVE has chosen “With New Title IX Rules, DeVos Sets up a Rigged Game,” penned by Anurima Bhargava and published at CNN (4). Bhargava is apparently unaware that identified victims of campus sexual assault have filed hundreds complaints alleging mistreatment by campus officials. In some cases, they have charged that campus officials’ mishandling of the case was more traumatic than the original sexual assault (5).

Bhargava cites the 2-10% false rape allegation statistic provided by an advocacy organization, ignoring a scholarly article that reported much higher numbers (6).  By repeatedly questioning DeVos’ motives and using emotionally charged language (“rigged game”), Bhargava writes as a committed advocate, not as an objective observer.

In order to encourage high-quality reporting of the proposed Title IX regulation, SAVE will continue to identify articles that reflect standards of objectively, fairness, and accuracy, and will publicize articles that do not meet minimum journalistic standards.



‘Terribly Mistaken:’ SAVE Urges Media to Cover Title IX Story in a Balanced, Objective Manner

Contact: Rebecca Stewart

Telephone: 513-479-3335


‘Terribly Mistaken:’ SAVE Urges Media to Cover Title IX Story in a Balanced, Objective Manner

WASHINGTON / November 21, 2018 – Following a “terribly mistaken” ABC report that made “patently false claims” about the newly released Title IX regulation, SAVE is urging media representatives to assure their coverage of the campus sexual assault issue is balanced, objective, and fair.

On November 16, the Department of Education published its proposed regulation for campus sexual assault.

The following day, Anne Flaherty of ABC News published an article about the new regulation that stated, “One of the biggest changes to the rule would be a new definition of sexual harassment….The new rule would define sexual harassment as unwanted sexual conduct that is ‘so severe, pervasive and objectively offensive that it denies a recipient’s education program or activity.’” Flaherty mistakenly concluded, “That definition would be significantly more difficult to prove because the victim would have to prove the misconduct prevents them from returning to school.”

In response, commentator Robby Soave highlighted the flaw of that conclusion: “The new standard does not require victims to show that they can’t return to school. Indeed, it doesn’t require them to leave school in the first place. What this new standard says is that severe, pervasive, objectively offensive sexual harassment that negatively impacts a student’s ability to attend class is a form of discrimination.”

Legal expert David French characterized the ABC claim as “terribly mistaken,” and described how the flawed ABC conclusion had been disseminated across the internet. French also took issue with ABC’s attribution of the proposed changes to a “small group of men’s rights groups,” ignoring the fact that several groups of law professors have written letters strongly critical of the current system of campus adjudications.

SAVE notes that complainants should not be described as a “victim” until after a finding of “responsibility” or “guilt” has been rendered. In a lawsuit against Brandeis University, Judge Dennis Saylor ruled, “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

In order to encourage high-quality reporting of the proposed Title IX regulation, SAVE is identifying news stories and editorials that reflect standards of thoughtfulness, fairness, and accuracy:

Conversely, SAVE will publicize articles that do not meet minimum journalistic standards.

A 2017 YouGov poll revealed strong support for the restoration of due process in campus sexual assault cases. The survey queried whether “Students accused of crimes on college campuses should receive the same civil liberties from their colleges that they receive in the court system.” Among the 1,200 persons responding, 65% of Democrats, 77% of Republicans, and 67% of Independents expressed agreement with the statement.


Thoughtful Media Accounts on Title IX Regulation Carry the Day

The SAVE Statement on the Proposed Title IX Regulation calls on “all stakeholders in this important issue to engage in thoughtful and reasoned debate how to restore due process and fairness on college campuses.” To this end, SAVE has identified the following news stories and editorials that are accurate, thoughtful, and fair:

  1. David French (National Review): Just How Easy Should It Be to Destroy a Young Man’s Life? – 1/30/19
  2. Meg Mott (New England Public Radio): New Title IX Rules Would Empower Both the Accused and the Survivors – 1/16/19
  3. Scott Greenfield (Simple Justice): The “Survivors” Last Stand – 1/11/19
  4. Inez Stepman (The Hill): Changes to Title IX Enforcement Are Common Sense – 1/9/19
  5. Curt Levey (Fox News): Education Secretary DeVos’s New Rules for Title IX and Sexual Assault Will Restore Fairness Across the Board – 1/4/19
  6. Wendy McElroy (The Hill): The New Title IX Regulation Helps Women – 1/3/19
  7. Tom Ciccotta (Breitbart News): Feminist Professor Says Betsy DeVos Title IX Guidelines Benefit Survivors – 1/3/19
  8. KC Johnson (The Regulatory Review): Changes to Universities’ Sexual Assault Tribunals May Be Here to Stay – 1/2/19
  9. Nicole DeSmet (Burlington Free Press): Title IX College Sexual Assault Rule Changes; What You Need to Know; How to Act – 12/21/18
  10. Peter Wallison (Real Clear Politics): DeVos Rule on Sexual Harassment Restores Primacy of Law – 12/20/18
  11. Meg Mott (Inside Higher Ed): The New Title IX Guidelines Benefit Survivors – 12/17/18
  12. Robby Soave (The Times-News): Title IX Changes Are Needed – 12/16/18
  13. Courier Editorial Board (The Courier): Campus Sex Assault Rules Need Revisions – 12/16/18
  14. Editorial Board (The Washington Post): What Betsy DeVos’s New Title IX Changes Get Right – and Wrong – 12/14/18
  15. Wendy McElroy (The Hill): A Sea Change for Sexual Conduct on Campus – 12/13/18
  16. KC Johnson and Stuart Taylor Jr. (The Weekly Standard): It’s Time for Republicans to Show They Truly Care About Due Process – 12/12/18
  17. Greg Piper (The College Fix): Feminist Law Professor Supports DeVos on Title IX because of “Troubling Racial Dynamics” in the System – 12/6/18
  18. Stacey Lennox (The Resurgent): If You Care About Due Process for College Age Men, Click This Link – 12/6/18
  19. Shikha Dalmia (Reason): Betsy DeVos’ Title IX Campus Reforms Advance a Liberal Cause – 12/4/18
  20. Lara Bazelon (New York Times): I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms – 12/4/18
  21. Robby Soave (Inside Sources): Point: Title IX Reforms Are Contentious, but Necessary – 12/3/18
  22. Shikha Dalmia (The Week): In Defense of Betsy DeVos’ Title IX Plan – 11/29/18
  23. Lindsay Marchello (Higher Education): ACLU’s Opposition to Title IX Reform Betrays Their Claims to Defend Civil Rights – 11/27/18
  24. Andrew Kreighbaum (Inside Higher Ed): What the DeVos Title IX Rule Means for Misconduct Off Campus – 11/27/18
  25. Derek Newton (Forbes): Betsy DeVos is Making the Right Choice on Sexual Assault Rules – 11/25/18
  26. KC Johnson (Minding the Campus): Finally, Due Process Near for College Males – 11/23/18
  27. Heather MacDonald (City Journal): Feminists’ Undue Process – 11/23/18
  28. Erika Sanzi (The Hill): With Title IX Rewrite, DeVos Gets It Right for Accusers and Accused – 11/22/18
  29. Cathy Young (Arc Digital Media): Sex, Lies, and Campus Tribunals – 11/22/18
  30. Christine Flowers (Philadelphia Inquirer): Betsy DeVos’ New Rules for Handling Campus Sexual Assault Provide Much-Needed Balance – 11/21/18
  31. Franczek Radelet (JD Supra): Proposed Title IX Regulations Raise Many Questions, Particularly for K-12 Schools – 11/21/18
  32. Editorial Board (Wall Street Journal): Reviving Due Process on Campus – 11/20/18
  33. Greg Piper (The College Fix): Rape-Culture Activists Hate Cross-Examination. They May Have to Worry About the Supreme Court – 11/20/18
  34. Ramesh Ponnuru (Bloomberg): Betsy DeVos is Protecting Civil Liberties on Campus – 11/20/18
  35. Ashe Schow (Daily Wire): New Campus Sexual Assault Rules Will Help Stifle Current Moral Panic – 11/20/18
  36. Daily News Editorial Board (Daily News): Lesson Learned: Betsy DeVos (mostly) Gets Title IX Rules Right – 11/19/18
  37. Justin Dillon (Chronicle for Higher Education): New Title IX Proposal Would Restore Fairness in Sexual Misconduct Cases – 11/19/18
  38. Conor Friedersdorf (The Atlantic): The ACLU Declines to Defend Civil Rights – 11/19/18
  39. Lakshmi Singh (NPR): Education Secretary Proposes Enhanced Protections for Those Accused of Sexual Assault on Campus – 11/18/18
  40. KC Johnson and Stuart Taylor Jr. (Wall Street Journal): DeVos Keeps Her Promise on Campus Due Process – 11/18/18
  41. Tiana Lowe (Washington Examiner): The Good, the Bad, and the Ugly of New Title IX Regulations – 11/17/18
  42. Anne Flaherty (ABC): Betsy DeVos Pitches New Protections for Students Accused of Sexual Assault – 11/17/18
  43. Adam Harris (The Atlantic): Betsy DeVos’s Sexual Assault Rules Would Let the Accused Cross-Examine Accusers – 11/17/18
  44. Alice Lloyd (The Weekly Standard): Will Colleges Actually Heed the New Title IX Regulations? – 11/17/18
  45. Laura Meckler (Washington Post): Betsy DeVos Releases Sexual Assault Rules She Hails as Balancing Rights of Victims, Accused – 11/16/18
  46. Collin Binkley (Associated Press): DeVos Proposes Overhaul to Campus Sexual Misconduct Rules – 11/16/18
  47. Erica Green (New York Times): Sex Assault Rules Under DeVos Bolster Defendants’ Rights and Ease College Liability – 11/16/18
  48. Teresa Watanabe (Los Angeles Times): Betsy DeVos Moves to Strengthen the Rights of the Accused in Campus Sexual Misconduct Cases – 11/16/18
  49. Sarah Brown and Katherine Mangan (Chronicle for Higher Education): What You Need to Know About the Proposed Title IX Regulations – 11/16/18
  50. Erica Green (New York Times): Sex Assault Under DeVos Bolster Defendants’ Rights and Ease College Liability – 11/16/18
  51. Kaitlyn Schallhorn (Fox News): Education Department Unveils New Title IX Guidance for Campus Sexual Assault: Here’s What Would Change – 11/16/18
  52. David French (National Review): Betsy DeVos Strikes a Blow for the Constitution – 11/16/18
  53. Robby Soave (Reason): ABC Makes Patently False Claim About New Title IX Rules – 11/16/18
  54. Robby Soave (Reason): Betsy DeVos Formally Unveils New Title IX Rules: 3 Ways They Will Strengthen Due Process on Campus – 11/16/18
  55. Richard Vedder (Forbes): Doing Things Right: Betsy DeVos, Title IX and Due Process – 11/16/18
  56. David French (National Review): ABC News Makes a Serious Mistake – 11/16/18

SAVE Statement on the Proposed Title IX Regulation

The purpose of campus disciplinary committees is to impartially investigate a complaint of sexual misconduct, determine the truthfulness of the allegation, and impose appropriate sanctions when indicated. The procedures that are followed to assure an accurate determination and just outcome are referred to as “due process.” Due process protects the rights and interests of both the complainant and the accused.

In 2011 the federal Office for Civil Rights issued a Dear Colleague Letter on Sexual Violence that served to remove many due process protections.[1] Not surprisingly, men and women filed hundreds of lawsuits against their universities and complaints with the OCR during the subsequent years.

In one recent case, Iowa State University agreed to make payments of more than $400,000 to a female student and to its former Title IX coordinator for gross mishandling of credible allegations of sexual assault.[2]

In another recent case involving the University of California-Santa Barbara, a male student filed a lawsuit because his accuser recanted the allegation. Superior Court Judge Thomas Anderle ruled the university’s conduct was “arbitrary and unreasonable,” and ordered the university to allow the student back on campus.[3]

The SAVE report, Six Year Experiment In Campus Jurisprudence Fails to Make the Grade, documents dozens of other cases where complainants and the accused were shortchanged by the deeply flawed procedures of campus “Kangaroo Courts.”[4]

SAVE welcomes the release of the new Title IX regulations, and calls on all stakeholders in this important issue to engage in thoughtful and reasoned debate how to restore due process and fairness on college campuses.







What You Need to Know About the Proposed Title IX Regulations

Students accused of sexual misconduct would gain greater protections and colleges investigating complaints could face reduced liability under sweeping new regulations proposed on Friday by the U.S. secretary of education, Betsy DeVos.

Pool, Getty Images
Under draft regulations proposed by the Education Department under Betsy DeVos, the rights of accused students would be strengthened and colleges’ liability would be lessened. But it’s unclear when final rules will be issued and if they will follow the draft language.

The long-awaited rules would replace the Obama administration’s Title IX guidance, which had called for more-aggressive enforcement of the 1972 law mandating gender equity among colleges that accept federal money.

DeVos rescinded that guidance in 2017 and promised that formal rules would follow. The proposed regulations, released on Friday but not yet officially published in the Federal Register, won’t take effect until the public is given 60 days to weigh in.

Many of the changes had already been made public in reporting by The New York Times,which obtained a draft of the rules.

Here are five things you need to know about the regulations:

A person accused of sexual misconduct would be guaranteed the right to cross-examine the accuser. This provision marked the biggest change from the draft that had been leaked in August. The questioning would have to be done in a live hearing by a lawyer or other adviser, but the parties could be in separate rooms, using technology if needed. The Obama-era guidance had discouraged direct cross-examination because of its potential to retraumatize victims.

Colleges’ responsibilities to investigate would be limited to cases in which there are formal complaints and the alleged incidents happen on campus or within an educational program or activity. Critics point out that many alleged incidents of sexual misconduct happen at apartments that are located just off campus, and it’s not clear those would have to be investigated.

The definition of sexual harassment colleges are required to act on would be narrower.The new rules would define sexual harassment to include “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Obama administration defined harassment as “unwelcome conduct of a sexual nature.”

Colleges would have the option of using a higher standard of proof. When deciding whether sexual misconduct occurred, the Obama-era guidance told colleges to adopt a “preponderance of the evidence” standard, which means that it’s more likely than not that the misconduct had occurred. The new rules would allow colleges to apply either that minimal standard or the higher “clear and convincing evidence” threshold. Both are less stringent than the “beyond a reasonable doubt” standard usually needed for criminal convictions.

Colleges would have more leeway to use mediation and other informal resolution procedures. Previous guidance had said that mediation — versus a formal investigation and adjudication process — was not appropriate in cases involving an alleged sexual assault. The concern was that alleged victims might feel pressured by their colleges to participate and that the process could be traumatizing. Proponents said it could appeal to students who don’t want the person who assaulted them suspended or expelled. The proposed regulations say colleges may opt for an informal resolution at any time, provided that both parties voluntarily agree to it.

The document spells out specific measures colleges should take for students whether or not they file formal complaints. Those could include counseling, deadline extensions, no-contact orders, and changes in class schedules.

The changes proposed in the 149-page document would save an estimated $286 million to $368 million over the next decade, the Education Department contends, and would ensure “fair, reliable procedures that provide adequate due-process protections for those involved in grievance processes.”

Under the Obama-era guidance, colleges were not sure whether the guidelines were legally binding, the new regulations say. Some felt that “those guidance documents pressured schools and colleges to forgo robust due-process protections; captured too wide a range of misconduct, resulting in infringement on academic freedom and free speech, and government regulation of consensual, noncriminal sexual activity; and removed reasonable options for how schools should structure their grievance processes to accommodate each school’s unique pedagogical mission, resources, and educational community.”

Under the previous guidance, the document says, “hundreds of students have filed complaints with OCR [the department’s Office for Civil Rights] alleging their school failed to provide a prompt or equitable process in response to a report of sexual harassment, and over 200 students have filed lawsuits against colleges and universities alleging their school disciplined them for sexual misconduct without providing due-process protections.”

Reaction to the regulations was swift, with ranking Democrats in the House and Senate condemning the proposals as undermining support for sexual-harassment victims.

Senator Patty Murray


The Trump Administration is trying to take another step toward sweeping the scourge of sexual assault under the rug, weakening protections for students and survivors, and allowing colleges and universities to shirk their responsibility to keep students safe.

Despite the argument that the regulations will simplify matters for colleges, “it opens up all sorts of gray space for campuses,” said Peter F. Lake, who leads the Center for Excellence in Higher Education Law and Policy at Stetson University.

“The big winner here is for lawyers suing schools,” he said. “It could easily lead to a flood of litigation.”

Others, including the Foundation for Individual Rights in Education, a free-speech advocacy group, said the rules would make the adjudication process fairer for everyone involved.



The proposed regulations include a number of important procedural protections that will improve the integrity of the process for everyone.

FIRE looks forward to offering public comment and working toward final regulations that are fair and just for all parties.

To some, the most controversial part of the new regulations is the requirement that accused students be allowed, through a third party, to cross-examine their accusers at a live hearing.

The rules would stipulate when it is appropriate to ask about a person’s sexual history and generally forbid questions that are harassing or irrelevant.

Given a recent federal-court ruling, college officials were already on notice that they needed to consider how to incorporate meaningful cross-examination into their processes, said Courtney Bullard, a former general counsel at the University of Tennessee at Chattanooga who now works in private practice.

At many institutions, especially small colleges where there is a limited pool of hearing panelists, cases are handled by a single investigator — usually an administrator or an outside lawyer — who conducts the interviews, writes a report, and issues a finding about whether campus policies were violated. The current regulations would not allow that.

There are pros and cons to cross-examination, she said. She’s concerned about cases in which one student has a lawyer as an adviser and the other does not.

“Having a student cross-examined by an attorney is just difficult to watch,” she said. “It doesn’t feel right in an educational setting. It doesn’t feel appropriate.”

Jeffrey J. Nolan, a lawyer who advises colleges on Title IX issues, said that requiring cross-examination “could affect the willingness of people to report sexual assault, if they picture themselves in a courtroom being yelled at about their sexual history the way you see on TV shows.”

Allowing an accused person to cross-examine the accuser, even through a lawyer, is “a horrible idea,” said Colby Bruno, senior legal counsel for the Victim Rights Law Center.

“Rape is about power and control and not about sexual desire,” she said. “Therefore, it is a bad idea to give the person with the power even more power to intimidate and hurt the victim.”

Carly N. Mee, senior staff attorney for the advocacy group SurvJustice, sees potential problems in trying to put the accused and accusers in different rooms in order to avoid face-to-face questioning. She has represented accusers who were required to dial in on Skype while the accused was in the hearing room, only to be frustrated when videos failed and sound quality was poor.

She sees the proposed changes as part of a larger, troubling pattern in the new regulations. “These changes are designed to flip Title IX on its head and give rights to accused students when Title IX was supposed to be protecting those experiencing sexual discrimination,” Mee said.

But advocates for accused students say the deck is stacked against them when they can’t question their accusers. Cynthia Garrett, a lawyer and leader of an advocacy group called Families Advocating for Campus Equality, said cross-examination is critical because it allows parties and decision makers the chance to observe responses in real time, observing inconsistencies in testimony and assessing a witness’s demeanor.

When questions are funneled through a hearing-panel member or investigator, “sometimes very few of the questions are actually asked, those that are asked are rephrased in a manner that undermines the effectiveness of the question, and almost never are follow-up questions asked,” she said.

Raising the Bar for Investigations

Other aspects of the proposed regulations — such as the narrower sexual-harassment definition, the choice of which standard of evidence to use, and the language about “formal complaints” — remain similar to the draft document that was leaked in August to the Times.

The new rules could raise the bar for when a college is required to open an investigation, said Taylor Sinclair, director of Title IX for the Nebraska State College System. That doesn’t mean that colleges won’t deal with complaints that no longer meet the threshold.

Under the new rules, Title IX officers would probably spend more time educating people about navigating relationships and establishing boundaries, instead of investigating, she said. More might turn to the kinds of informal remedies that are already used in many cases.

“It changes the lens through which we look at misconduct and how the college decides who’s a victim and who’s not,” she said.

She worries, though, that when some victims are told that their complaint doesn’t meet the threshold, they’ll disappear. Some might not come forward at all.

“We’re going to miss opportunities to help students, to solve problems, if we overlook these claims,” she said. She’d like to see a definition that’s somewhere in between the Obama-era “unwelcome conduct of a sexual nature” standard and the newly proposed one.

Even though colleges may be allowed to use a higher standard to determine whether a person has been a victim of sexual misconduct, many that use the preponderance-of-evidence standard are likely to stick to it because of the backlash they could face, several Title IX lawyers interviewed said.

Changes in Mandatory Reporting

Another change that has already generated a lot of debate is that colleges would be legally responsible for handling only those formal complaints that are made by an official who has the ability to remedy the situation. That doesn’t include reports from professors, resident advisers, and others.

Over the last few years, many colleges have adopted policies that designated nearly every campus employee as a mandatory reporter of sexual misconduct who must alert the Title IX office whenever they hear about a possible incident.

Some faculty members have criticized the policies because they felt they were forced to disclose confidential conversations with students.

But if colleges respond by designating fewer people as mandatory reporters or limiting when they’re required to contact the Title IX office, that would shrink the pool of people combating sexual violence, some worry.

Mandatory-reporting policies often help Title IX coordinators identify patterns of misconduct, supporters say. If three people tell three different professors about incidents involving the same student, and the faculty members fulfill their obligation to report to the Title IX office, administrators can spot the trend and react.

From a legal-liability standpoint, campuses would be better off if there were fewer mandatory reporters, said Bullard, the former general counsel at Chattanooga. Colleges would no longer be liable if someone told a faculty member about an incident and that faculty member didn’t report it to the Title IX office.

Nowadays, however, many students have expectations about what’s going to happen when they disclose an alleged assault, Bullard said. A culture of mandatory reporting has taken hold on many campuses. “It’s tough to untrain people,” she said.

“When a student tells a campus administrator something, they ultimately think that person has the ability to fix their problem,” she added. “And then later, they’re upset about it because they feel like they told someone who has the ability to fix the issue.”

A ‘Good Faith’ Approach

The colleges that Bullard works with are always “hungry for guidance,” she said. They say: “Give me something solid to rest my decisions on.” Ultimately, she said, that’s what these regulations might provide, which colleges would welcome.

The proposed regulations, she said, appear to take more of a good-faith approach, in which if campus administrators follow their policies and act in good faith, they won’t face a serious reprimand from the federal government.

“The end game is, it should take some of the pressure off of institutions,” she said. “But in the middle of all that, it’s going to be yet another re-evaluation. This is what they’ve been doing since 2011.”

Bisi Okubadejo, a lawyer who worked for the Department of Education’s Office for Civil Rights during both the Bush and Obama administrations, isn’t convinced that the new regulations would reduce colleges’ liability.

Okubadejo, who now advises colleges about their obligations under Title IX, said more accused students might sue if the protections the new rules call for aren’t provided by their campuses.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at


Betsy DeVos releases sexual assault rules she hails as balancing rights of victims, accused

Education Secretary Betsy DeVos on Friday released her long-awaited rewrite of rules governing campus sexual harassment and assault allegations, narrowing the cases schools must investigate and giving the accused more rights.

The proposal came under immediate fire from women’s rights groups and Democrats, who said the rules would allow assailants and schools to escape responsibility for harassment and assault and would make college campuses less safe for women.

But others said the proposal restores balance in a system that had been skewed too far in favor of the accusers.

DeVos said she had worked to strike a balance while creating a more transparent and reliable process.

“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas,” she said.

Under the proposal, fewer allegations would be considered sexual harassment and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Schools could choose a higher legal standard for considering evidence.

The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct. They land at a time when the #MeToo movement brought increased public scrutiny and accountability to harassment and assault. This proposal, by contrast, pushes the pendulum in the reverse direction.

“I am dismayed with the Trump administration’s cruel proposal that will have the effect of putting power in the hands of abusers & dissuading survivors from coming forward,” John B. King Jr., who served as education secretary in the Obama administration, said on Twitter.

The most divisive aspect of the proposal may be allowing attorneys for the accused to cross-
examine accusers.

The proposed rule goes too far in incorporating legal concepts into a school disciplinary setting, argued Terry Hartle, a senior vice president at the American Council on Education, which represents university presidents.

“This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing,” he said. “We are not courts. I’m not sure we should try to act like courts.”

But advocates for the accused called this an essential change that could help counter inherent bias among college administrators who investigate incidents.

“Cross-examination is the most effective method to get to the truth,” said Kimberly C. Lau, who leads the college discipline practice at the law firm Warshaw Burstein.

The regulations stem from a 1972 law known as Title IX that bars sex discrimination at schools that receive federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools.

Unlike less formal Obama-era guidance that is being replaced, the new plan is a proposed regulation that will be subject to public comment and, once finalized, carry the force of law.

Critics said the Obama approach was confusing for universities and improperly made outside the formal rulemaking process.

Using guidelines “allowed the Obama Department of Education to essentially make up rules that had no basis in any relevant statute or Supreme Court opinion,” said David Bernstein, executive director of the Liberty & Law Center at the Antonin Scalia Law School at George Mason University.

Overall, the proposed regulation describes what constitutes sexual harassment or assault for the purpose of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations and how a school must respond.

Citing Supreme Court precedent, the proposal puts forth a narrow definition of harassment. Obama-era guidelines held that harassment was “unwelcome conduct of a sexual nature.” The proposed regulation defines it as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”

The regulation also limits the circumstances that would mandate a school respond to an incident. The school must have “actual knowledge” of the allegations. At colleges and universities, that means the incident must have been reported to “an official with authority to take corrective action,” including the school’s Title IX coordinator. For K-12 schools, the report could go to any teacher.

In addition, the incident must have occurred within a school’s own programs or activities. That could include off-campus incidents if it were, for instance, in a building owned by the school, or at an event the school funded, sponsored, promoted or endorsed.

Once a school knows about an allegation, it is required to take it seriously. But the regulation specifies that it will be punished by the Education Department only if its actions are “clearly unreasonable in light of the known circumstances.”

The regulation also specifies that even if no formal complaint is filed, the school must offer the accuser supportive measures. It says colleges and universities doing this have a “safe harbor” from a later finding that they had failed to act. Elementary and secondary schools, however, may be required to file a formal complaint even if the victim does not want one, given “the need to protect younger students.”

In investigating complaints, schools are required to implement a range of due-process procedures, including a presumption of innocence, the opportunity to present witnesses and evidence, and the right to an adviser or attorney at all phases of the process.

Hearings are optional for K-12 schools, but for colleges and universities, a final decision must be made at a hearing. Cross-examination must be allowed but conducted by advisers or attorneys, not by the parties themselves. The regulation also provides “rape shield protections,” such as a bar on questions about an accuser’s sexual history.

Schools would be allowed to choose the standard they will use between “preponderance of the evidence” or the higher bar of “clear and convincing evidence.” But a school may not use the lower standard if it relies on the higher one for allegations against employees, including faculty members.

In addition, the regulation would require that the final determination in a case be made by someone who did not conduct the investigation, nullifying arrangements often used in which a single investigator does both.

Those procedural changes are important, said attorney Andrew Miltenberg of New York, who has represented more than 100 students accused of sexual misconduct. But he predicted that most universities will maintain the lower evidentiary standard in response to campus pressures.

“I think most universities are going to stay the course for fear of becoming ground zero for activists to say, ‘Look how terrible rape victims are being treated at this university,’ ” he said.

He said, though, that the new sexual harassment definition, requiring the behavior to be both severe and pervasive, “may be a little too restrictive.”

Suzanne Taylor, the University of California’s interim systemwide Title IX coordinator, said the new rules will “reverse decades of well-established, hard-won progress toward equity” but said the UC system would remain “steadfast in its commitment to combating sexual violence.”

Nick Anderson contributed to this report.

Title IX

ABC Makes Patently False Claim About New Title IX Rules

LEAH MILLIS/REUTERS/NewscomABC has badly mischaracterized Education Secretary Betsy DeVos’ proposed changes to Title IX, the federal statute dealing with campus sexual misconduct.

“One of the biggest changes to the rule would be a new definition of sexual harassment,” writes ABC’s Anne Flaherty. “Under Obama, it was defined it as ‘unwelcome conduct of a sexual nature.’ The new rule would define sexual harassment as unwanted sexual conduct that is ‘so severe, pervasive and objectively offensive that it denies a recipient’s education program or activity.’”

So far, her description is correct. (For more on why such changes are good for students’ due process and free speech rights, read this post.) But what comes next is totally false:

That definition would be significantly more difficult to prove because the victim would have to prove the misconduct prevents them from returning to school.

Unfortunately, ABC’s mischaracterization of the standard is already being parroted by the Daily Kos. This is how fake news spreads.

If would be great if a civil-liberties-minded organization in good standing with the left could step up and explain why Title IX reform is necessary and long overdue. Unfortunately, the American Civil Liberties Union has opted to go another route.

Photo Credit: LEAH MILLIS/REUTERS/Newscom

Associate Editor Robby Soave, a 2017–2018 Novak Fellow at the Fund for American Studies, is the author of a forthcoming book about campus activism in the age of Trump.

Lawsuit: Purdue accused of ‘chilling’ retaliation on women who reported sexual assaults

In a federal lawsuit filed Tuesday, two former students claim they were kicked out of school after Purdue couldn’t find enough evidence in their sexual assault reports


(Editor’s note: Purdue released a statement Thursday, after this initial count published. This version has been updated to reflect Purdue’s reaction.)

WEST LAFAYETTE, Ind. — Two former Purdue University students say the university kicked them out of school after investigators retaliated when they couldn’t find enough evidence to back claims that the women had been sexually assaulted, according to a federal lawsuit filed Tuesday.

The suit, filed under the pseudonyms of Mary Doe and Nancy Roe, claims that Purdue is working under a policy – “either written or unwritten” – in which “women who cannot prove their claims to the satisfaction of Purdue decision-makers face discipline up to expulsion.”

The suit, filed in the U.S. District Court in Indiana’s Northern District, names Purdue, along with Katie Sermersheim, Purdue’s dean of students, and Alyssa Rollock, vice president for ethics and compliance at the university.

“I suspect there’s been some sort of overreaction over there to the way they were criticized for handling complaints,” said Jeff Macey, an Indianapolis attorney representing the two women and their claims that Purdue violated federal Title IX protections for victims of sexual assault.

“But the school cannot be expelling or otherwise disciplining women if the investigation doesn’t come out in their favor,” Macey said. “And I’m afraid that’s what’s happening there. And that’s just a real chilling, chilling effect on victims who are complaining under the Title IX processes the university has set up.”

Tim Doty, a Purdue spokesman, said on Wednesday that university officials had not been served with the lawsuit. On Thursday, Doty released a statement from the university.

“To the extent the case challenges the university’s handling of complaints under our anti-harassment policy and procedures, we stand by our commitment to provide a safe and secure environment for all members of our community,” Doty said. “These are often difficult matters to investigate and decide, but we are confident in our processes and believe they afford all students with broad and appropriate protections, whether they are raising allegations of sexual misconduct or responding to them. Fair application of our policy necessarily entails ensuring all parties participate in the process in good faith by providing truthful information to assist the university in making its determinations.”

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The lawsuit claims the women didn’t know each other and that their reports of sexual assaults were not related. The suit also claims the reports about sexual assault were made about different men. Macey declined to answer questions about how they wound up in the same lawsuit.

The women initially were expelled from Purdue, with their discipline reduced to two-year suspensions.

Macey said the women, now 20 and 21, were treated “as if they were the accused harassers” by investigators who “made discriminatory assumptions” about their behavior, while dealing out smaller punishments to the men in each case.

Here are the particulars, as claimed in the lawsuit.

► Doe, a freshman at the time, reported on Oct. 10, 2017, to the Purdue University Police Department that she’d been assaulted in her residence hall room by a male student who had already landed on the university’s persona non grata list, banned from campus “because of his conduct directed against a different female student.”

The suit claims the Purdue police reported the incident to the university, which launched its own investigation. The suit does not say why Purdue police turned the investigation over to the university.

The suit claims Doe spoke with a university investigator at the start, but then quit participating. The investigation went on, according to the suit. The suit claims that the investigation turned, treating Doe – without her knowledge – as the target.

“Contrary to its own policy,” the suit claims, “defendants made credibility findings against Doe based on her decision to not participate in the investigation.”

The university eventually alleged that Doe fabricated her account of the assault and expelled her, before reducing the punishment to a two-year suspension on Feb. 22, 2018.

► Roe, a junior at the time, said she was sexually assaulted April 17, 2017, in her dorm room, after a male student walked her home from a party at a fraternity. The suit claims she was intoxicated and incapable of giving consent for sexual intercourse. The suit claims the man sexually assaulted her, making audio recordings of what was happening.

The suit says that Roe became concerned about what might have happened the night before when she discovered bruising on her neck after going to class the next day. That’s when she sought medical treatment and reported the incident to the university. After Purdue investigated, the suit said, Roe was accused of reporting the assault maliciously and expelled her. Her expulsion also was reduced to a two-year suspension on Oct. 17, after she appealed.

The suit claims that when Purdue found out that the fraternity member in Roe’s case had recorded her without her consent, it assigned him a 10-page paper as a punishment. The topic of the paper was not mentioned.

Macey said the initial intent of the lawsuit is to get the two women reinstated at Purdue.

“This has really derailed their education careers,” Macey said.

Beyond that, he said, Purdue should be on notice about how it handles sexual assault investigations.

“Just because Purdue doesn’t believe you doesn’t mean you’ve maliciously set out to harm somebody, which is my understanding of what the standard is for expulsion,” Macey said.

“You don’t want a situation where you have someone risking their academic career to even raise a complaint. And it appears Purdue’s moved in that direction. And to that extent, that’s the policy we’re challenging.”

Reach Dave Bangert at 765-420-5258 or at Follow on Twitter: @davebangert.


Investigation: Charges for Iowa State Title IX litigation top $416,000

Editor’s Note: This is part three of an investigation to track the amount of money charged in recent Title IX cases against Iowa State. Part one was published Feb. 16, 2016, part two was published May 29, 2018.

More than $400,000 has been spent since 2016 as a result of Title IX lawsuits against Iowa State. Students and taxpayers have helped foot the bill.

Iowa State had four Title IX suits filed against it by two former students and the former Title IX coordinator, since 2016. Iowa State retained services from Husch Blackwell, a law firm operating out of Kansas City, Missouri.

University counsel Michael Norton was a partner at Husch Blackwell for 12 years before starting at Iowa State.

As of Oct. 25, 2018, $416,016.88 has been spent on the four Title IX suits.

The money going to Husch Blackwell is paid out from the general university budget, which in 2016 was composed of 58.9 percent tuition.

The settlements paid to former student Taylor Niesen and former Title IX director Robinette Kelley come from the state litigation fund, paid for by an Iowa General Fund appropriation. The fund was composed of 91.9 percent tax dollars in 2017, according to the Iowa Legislature.

Niesen received $47,500 in May 2018. The firm representing Niesen received $32,500 of the settlement, and she received $15,000. Kelley received $125,000 in August 2018. Kelley received $75,000 of the settlement and the firm representing her received $50,000.

Melissa Maher v. Iowa State Et Al., the only case that has not ended in a settlement, was dismissed by the Chief U.S. Magistrate Judge Helen Adams on Feb. 14, 2018. Maher, a former Iowa State Student, and her attorney Andrew Zbaracki have since appealed the dismissal.

The Maher case is now listed as being in the Eighth Circuit U.S. Court of Appeals. Zbaracki told the Daily the court has yet to set a date for oral arguments.

While the total paid to Husch Blackwell may be eye-popping in an era of increased tuition and decreased funding to higher education, Norton said the price and service provided by Husch Blackwell has been satisfactory.

Norton told the Iowa State Daily in February 2018 there is not a limit at which Iowa State will no longer contract Husch Blackwell for legal services.

Norton provided the Daily with a statement through John McCarroll, executive director of public relations at Iowa State.

“When sued, the University has a legal obligation to respond and to present a defense,” Norton said. “Even more importantly, the University defends itself in litigation to protect the assets of the University, which are public assets.”

Norton explained the costs of representation are due to hiring outside representation. In recent Title IX cases, Iowa State has hired Husch Blackwell, Norton’s former firm.

“In complex cases, as in the case of Title IX litigation, where the Attorney General’s office requires additional substantive support or where a conflict exists, such as in the Kelley state litigation, outside litigation counsel must be hired,” Norton said. “There is no other alternative. In the Title IX cases, the University engaged nationally recognized experts in Title IX issues who have represented institutions of higher education across the county in complex litigation.”

The hourly rate of $305 Iowa State is paying Husch Blackwell is “extremely reasonable,” Norton said.

“Moreover, the University has received excellent value for the amount spent,” Norton said. “The partnership between the Office of University Counsel, the Attorney General’s Office, and [Husch Blackwell] has resulted in the favorable resolution (through judicial opinion or settlement) of all pending Title IX litigation.

“The University currently has no active Title IX litigation cases.”

Norton criticized the Daily’s reporting of the total spent. The Daily has included settlements paid to plaintiffs suing the university in reporting.

“Reporting that the ‘total spent’ is $416,000 is misleading,” Norton said. “The University has spent roughly $244,000 in legal fees and expenses. (This is approximately $40,000 more than the amount [the Daily] reported in a similar story earlier this year.) The remaining amount is settlement payments. The University did not pay these settlements. Rather, these payments were made from the state litigation fund, and the State Appeals Board approved the specific settlement payments.”

Although Norton claims the Daily’s reporting is misleading, in the story he is referencing, published May 29, 2018, the Daily accurately reported on where the settlement funds came from. The May 29 story contained the following excerpt as the first two paragraphs in the story:

“Iowa State has been charged $205,492.17 by Husch Blackwell to defend the university in three Title IX related lawsuits, a state discrimination lawsuit and to provide general advising in Title IX litigation.

An additional $47,500 was spent from the state litigation fund approved by the state board of appeals to settle the Taylor Niesen vs. Iowa State case.”

Note: Emily Berch contributed reporting about the state of the Maher appeal in this article.