Campus Sexual Assault

Harvard Law School Professors Evaluate Department of Education’s Proposed Rule for Title IX Enforcement

January 30, 2019
Feminist Harvard Law School Professors Evaluate Department of Education’s Proposed Rule for Title IX Enforcement
Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.”
They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct
and after a process that is fair to all parties.”
With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of
proof, the rejection of the single -investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants.
The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into
account the complainants’ as well as the respondents’
interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.”
Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault,  and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
To access the Comment, go to:
Inquiries please contact:
Jeannie Suk Gersen,
Nancy Gertner,
Janet Halley,
Domestic Violence

Are We on the Verge of Defining Every Man and Woman in America as an Abuser?

January 30, 2019

Over-criminalization is seen as a major problem in America. Our nation has the highest incarceration rate of any country in the world. In response, Congress approved the FIRST STEP Act last year. And discussions how to address the opioid crisis repeatedly emphasized the need for mental health treatment, not incarceration of offenders.

So what about domestic violence? Many persons believe domestic violence also has become over-criminalized:

  • Overly broad definitions: The most common example has been to define “violence” in terms of its alleged psychological impact.
  • Mandatory arrest laws: In most cases, the victim says, “I don’t want him (or her) to be arrested, I just want the abuser to get help!”
  • No-drop prosecution policies: No-drop policies require prosecutors to pursue the case, despite the wishes of the victim. In about four-fifths of cases, the person who requests police assistance later recants or drops the charges.

As a result, victims have become reluctant to call the police for help. The harmful impact of such policies is especially worrisome in African-American communities.

In recent years, feminist groups have become increasingly critical of VAWA’s over-reliance on criminal approaches. As early as 2003, the Ms. Foundation for Women noted, “Unfortunately, when state power has been invited into, or forced into, the lives of individuals, it often takes over.”[1]

More recently, University of Maryland law professor Leigh Goodmark has launched a campaign to educate the public and lawmakers about the problems of over-criminalization. In her recent book, “Decriminalizing Domestic Violence,” she calls for a balanced approach recognizing that domestic violence also needs to be viewed as an economic, public health, community, and human rights problem.[2] And dozens of professors, attorneys, and others have endorsed a series of principles designed to rein in the over-criminalization of domestic violence.[3]

H.R. 6545

In July 2018, Rep. Sheila Jackson Lee introduced her VAWA reauthorization bill, H.R. 6545. The centerpiece of her bill is this expanded definition:

Domestic Violence – The term ‘domestic violence’ means a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain “power and control” over a victim…[emphasis added]

Think about this in personal terms:

  • Verbal abuse: Have you ever called, or attempted to call, your partner a derogatory name?
  • Emotional abuse: Have you ever given your partner the “silent treatment”?
  • Economic abuse: Have you ever told, or attempted to tell, your partner to stop over-spending the credit card?
  • Technological abuse: Have you ever sent an annoying email?

Does this trivialize the problem of real domestic violence? Will this serve to overwhelm our criminal justice system with minor cases? Won’t this open the door to a cascade of false allegations?

Is this really where we want to take the domestic violence debate in our country?


[1] Ms. Foundation for Women. Safety and Justice for All. 2003.

[2] Leigh Goodmark, Decriminalizing Domestic Violence. University of California Press, 2018.

[3] Coalition to End Domestic Violence, Fourteen Principles for VAWA Reform.

Domestic Violence

Gaslighting and the Under-reporting of Psychological Abuse

January 29, 2019

The federal government shows that statistically men and women abuse at equal rates.  The difference is that Men are more likely to use physical abuse while women are more likely to use a deadly weapon and poison.  Both use Psychological abuse and Domestic Violence by Proxy at an equal rate.  And while this is statistically correct, there is  major issue.  Most men do not report abuse because they are afraid of it being turned around on them or being called weak for allowing a woman to abuse them.

For over two decades I have been working with survivors of psychological abuse and physical abuse.  Statistically, I have an equal number of men and women that I work with who are victims.  These men and women I work with are 99% psychologically abused with 25% of them being physically abused.  And 99% of them being accused falsely of some kind of physical abuse.  Gaslighting, which is defined as the “manipulation of someone by psychological means into questioning their own sanity,” is one of the biggest ways someone can be abused.

Psychological abuse is actually more damaging than physical because it cannot be seen and thus is less likely to get addressed.  And when less likely to be treated, it escalates to serious issues.  Someone who is gaslight constantly has only one of two choices to turn to in their life.  They either become extremely critical and down on themselves or they become sociopathic and abuse themselves.  The one thing they both have in common is extreme low self-esteem and sense of self-worth.

To get proper statistical data on how many men are abused, one only needs to go to an Emergency room.  Ask any medical staff member in an ER and they will tell you that they have just as many men who are abused coming in for treatment as women.  The difference is that the men will not allow them to report the incident.  This is a serious issue as their lack of reporting creates issues in determining solutions for Domestic Violence.

Probably one of the biggest red flags is when a person claims that they are all good and perfect and the other person is all bad.  When we talk in black and white as if there is no middle in-between, that is a huge red flag that the reporter of the abuse is possibly lying.  When we meet a person who we become involved with, there was clearly a positive attraction and therefore should be at least one good memory amongst all of the abuse.  For someone to say that one person is all good and the other is all bad, is the signs of a narcissist.  Even truly abused people will tell you something positive about their abuser, because otherwise, why did they stay with them for so long.

This is especially true if the reporting person is cunning and sociopathic enough to convince all the other authorities that the person they are reporting is a liar, crazy, insane and that the professionals should not even talk to them.  In my over two decades of work and research this is a huge red flag of narcissism and that psychological abuse is occurring.  Women are equally as likely to use psychological abuse as men.  And unless someone is trained to recognize it, they fail at their job and cause more harm.

But I can also tell you story after story after story of cases where true abuse was completely ignored because the narcissist was able to convince the professionals that it never happened.  Their ability to control a situation using gaslighting and psychological abuse is exceptionally dangerous.  And I can tell you story after story of false allegations of abuse, that were easy to prove never happened but the professionals were not trained or educated enough in the art of deception by a narcissist.

Until society gets this correct and stops allowing for the false allegations due to improperly trained and educated professionals who cannot recognize false and true allegations or even psychological abuse, there will be no end to it.  And until reporters do true and honest reporting, society cannot even begin to get it right or to understand it.


#MeToo-Inspired Ad Campaign Draws Sharp Criticism

January 26, 2019

In January, Gillette introduced a new advertising campaign. “The Best a Man Can Get,” which addressed issues of harassment, bullying, and men’s mental health. The ad also promoted the idea that men can and need to do better when it comes to holding each other accountable.

The campaign proved to be highly controversial, triggering a boycott effort and numerous editorials. Following is a selection of these articles published as of January 25, 2019:

  1. Armin Brott: Talking About “Toxic Masculinity” – When Is It Okay to Be a Bigot?
  2. Cathy Young: Is masculinity really toxic or is it unfairly under assault?
  3. Kay Hymowitz: What’s Really Toxic Is “Toxic Masculinity”.
  4. Matt Vespa: This Company Just Took Gillette’s Nonsense Toxic Masculinity Ad Campaign to The Woodshed.
  5. Babylon Bee: Striking Blow Against Toxic Masculinity, Man Graciously Allows Wife To Shovel Driveway.
  6. Brent Bozell and Tim Graham: Gillette’s Sexist Sermonizing to Men and Women.
  7. Charles Taylor: Why Gillette’s New Ad Campaign Is Toxic.
  8. DC Larson: Surprise: Genius behind man-hating Gillette ad is a radical feminist.
  9. Matt Walsh: 3 Reasons Why Gillette’s ‘Toxic Masculinity’ Ad Is Incredibly Stupid And Degrading.
  10. Damian Reilly: Masculinity isn’t toxic – corporate moralizing is.
  11. Janice Fiamengo: The Gillette Ad – No Joke.
  12. James Barrett: Backlash Builds Against Gillette Over ‘Toxic Masculinity’ Campaign.
  13. Janice Fiamengo, Paul Elam, and Tom Golden: Regarding Men.
  14. Karol Markowicz: That idiotic Gillette ad may have turned the tide on ‘toxic masculinity’.
  15. OAN: Dear Gillette, Men Are Not the Problem!
  16. Isaac Stanley-Becker: Gillette ad takes on ‘toxic masculinity’ in #MeToo-era rebrand, provoking a backlash.
  1. Michael Gurian: Blaming Masculinity Will Only Make The Male Crisis Worse.
  2. Michael Bartiromo: Gillette’s ‘We Believe’ ad focusing on ‘toxic masculinity’ gets mixed response, sends upset customers to seek other brands
  3. Charles Taylor: Why Gillette’s New Ad Campaign Is Toxic.
  4. Piers Morgan: I’m so sick of this war on masculinity and I’m not alone – with their pathetic man-hating ad, Gillette have just cut their own throat.
  5. Frank Camp: Watch Company Launches Response To Gillette ‘Toxic Masculinity’ Ad; It Goes Viral.
  6. Leslie Eastman: Egard Watch Company video counters Gillette’s “Toxic Masculinity” ad.
  7. The Conservative Woman: Does “toxic masculinity” target ALL males?
  8. Barbara Kay: Toxic Masculinity in advertising: Keeping women scared and men shamed

Proposed Title IX Regulations Target Sex Bias on College Campuses

January 24, 2019

“A recipient’s treatment of the respondent may constitute discrimination on the basis of sex under Title IX.”[1]

Docket No. ED-2018-OCR-0064, RIN 1870–AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

Supplemental Comment submitted by Stop Abusive and Violent Environments (SAVE)

On November 29, 2018 the Department of Education issued proposed Title IX regulatory changes.[2] Although these proposed regulations often have been referred to as “due process” regulations, it is clear that these regulations, once implemented, will help remedy widespread sex bias against male students at colleges and universities.

This Comment discusses the broader problem of sex discrimination in the arena of campus sexual assault, examining the barriers faced by male students in reporting and defending themselves against sexual assault allegations. The Appendix of this Comment features a listing of 38 judicial opinions issued 2014 to 2018 that upheld a male accused student’s sex discrimination cause of action in a campus sexual assault action.


Sex discrimination can assume many guises, even within a single case. In Wells v. Xavier Univ., the judge recognized that anti-male bias resulted in an unfair process: “[Wells’] Complaint, however, recounts Defendants having rushed to judgment, having failed to train UCB members, having ignored the Prosecutor, having denied Plaintiff counsel, and having denied Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male accused of sexual assault.”

Discrimination against male student was also demonstrated in 2014, in adjudication of a Duke University female student’s complaint alleging that she was too intoxicated to give consent. Duke found the male respondent guilty and a federal lawsuit ensued. During a hearing in federal court, Duke’s dean was asked whether both students could have assaulted one another since both were heavily intoxicated. The dean responded no and stated, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”[3]

This admission by the dean demonstrated that Duke was in violation of Title IX.

The discriminatory impact of policies such as those above violates Title IX, whether or not the school was expressly motivated by anti-male bias. In Doe v. Columbia Univ., the Second Circuit Court of Appeals appropriately observed,

“A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.” (emphasis added).


According to the CDC National Intimate Partner and Sexual Violence Survey, similar percentages of men and women (Men: 5.3%; Women: 5.6%) experience sexual violence other than rape each year.[4] Of the 25.1 million men who have experienced sexual violence in their lifetimes:[5]

  • 5.4 million were forced to penetrate
  • 6.8 million experienced sexual coercion
  • 13.3 million had unwanted sexual contact

Similarly, among college populations, large percentages of male students are known to have been victimized. According to an American Association of Universities survey at 27 institutions of higher education, 40.9% of undergraduate heterosexual males have experienced sexual harassment, intimate partner violence, or stalking, compared to 60.5% of undergraduate heterosexual females.[6]

According to the National Alliance to End Sexual Violence, “About 14% of reported rapes involve men or boys, 1 in 6 reported sexual assaults is against a boy, and 1 in 25 reported sexual assaults is against a man.”[7] Though it may not be apparent, “Male victims experience similar effects of sexual violence as female victims such as shame, grief, anger and fear…Men and boys who have been sexually victimized have a right to a full range of recovery services in settings that fully support their needs.”[8]

But on campus, male students are “Up Against A System That’s Not Designed To Help Us.”[9] In one survey, 475 undergraduate students “believed that campus resources are more helpful for female than male survivors.”[10] MaleSurvivor notes:

For many boys and men the harm of the initial betrayal of sexual abuse is compounded by the lack of a compassionate response from friends, family, and their community. In addition, toxic stereotypes about masculinity create powerful disincentives to disclosure by men of their pain and suffering. As a result, it is not uncommon for a male survivor to ignore, repress, or avoid disclosure and help-seeking for years – sometimes decades.[11]

Nevertheless, campus processes, websites and training materials are permeated with female -victim centric information, while wholly ignoring the possibility that men may also be sexual assault victims.

Proposed Title IX Regulations

The proposed Title IX rules attempt to resolve sex discrimination against men and treat students equally in several ways.

Section 106.30: General

“. . . [D]efines “supportive measures” as non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed . . . [S]uch measures are designed to restore or preserve access to the recipient’s education program or activity, without unreasonably burdening the other party; protect the safety of all parties and the recipient’s educational environment; and deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, . . . and other similar measures . . .”[12]

Section 106.45(b)(1): General Requirements for Grievance Procedures

“. . . [G]rievance procedures must . . . [r]equire that a recipient ensure that coordinators, investigators, and decision-makers receive training on the definition of sexual harassment and how to conduct an investigation and grievance process . . . that protect the safety of students, ensure due process protections for all parties, and promote accountability; and that any materials used to train coordinators, investigators, or decision-makers not rely on sex stereotypes and instead promote impartial investigations and adjudications of sexual harassment . . .”[13]

Indeed, in court decisions involving the University of Pennsylvania, University of Mississippi, and Drexel University, judges ruled the institutions’ use of seemingly biased training material might have violated Title IX.


A 2015 survey of college students revealed that “Students perceived that barriers to disclosure were more likely to prevent men than women from telling someone they were assaulted and seeking help.”[14] One of these barriers is campus disciplinary committees that refuse to consider allegations of sexual assault when they are made by a male student.

Relevant Case Law

In several lawsuits filed by male accused students, institutions failed to investigate evidence developed during the course of the institution’s own investigation that the accused student was a victim of sexual misconduct according to school policies: Rollins College (2017), Miami University, Amherst College, Williams College, and Drake University.

Rollins College

On January 16, 2019 U.S. District Court Judge Roy Dalton allowed a lawsuit against Rollins College – the second against the institution within two years — to move forward under the theories of breach-of-contract and selective enforcement.[15]

According to the male accused student, his female accuser had taken advantage of him sexually while he was inebriated. During its investigation, the college ignored evidence in favor of the male and overlooked contradictions in the woman’s testimony.[16]

The judge determined that the complaint raised the possibility that Rollins had effectively discriminated against the male student by: rejecting testimony from his witnesses “based, in part, on the male witnesses’ fraternity associations,” while allowing testimony from his accuser’s sorority witnesses; “excus[ing] any inconsistencies” in her testimony concerning whether she had “verbalized consent;” and made “irrelevant, inflammatory, and conclusory statements” about the accused. Rollins College prejudged the male accused student as guilty in order “to protect its image,” according to Judge Dalton.

in the Rollins College case the Title IX office maintained a web page that predominantly displayed the words “Rollins, It’s On Us. We are proud to support the national ‘It’s on Us’ campaign to stop sexual assault. To learn more, click here.”[17] Clicking on the link takes the viewer to the website of the It’s On Us campaign, which is designed to promote “a culture of consent, bystander intervention, and survivor support.”[18] Rollins’ It’s On Us webpage features the following statements focused on women as potential victims of sexual assault:

  • “Only 20% of female student victims, age 18-24, report to law enforcement”
  • “Among college women, 9 in 10 victims of rape and sexual assault knew their offender”

Rollins’ It’s On Us page does not include mention of how many male student victims report to law enforcement or knew their offender. Neither does the Rollins’ Title IX page provide any information specific to male victims of sexual assault.

In his ruling, Judge Dalton relied on federal appellate court decisions in lawsuits against Columbia University[19] and Miami University of Ohio[20] involving allegations of sex discrimination. The Columbia University appellate court decision was notable because it overruled a lower court decision that, if allowed to stand, would have made it nearly impossible for male victims of sexual assault to make viable complaints to campus sex tribunals.[21] The Columbia University court determined that a plaintiff can defeat a motion for summary judgment if his or her complaint meets the minimal burden of showing discriminatory intent.[22]

Judge Dalton found sufficient evidence to allow the male accused student’s lawsuit to go forward based on Rollins College’s refusal to even consider the possibility that the female was the sexual aggressor, its biased investigative process, and its subsequent decision to expel the male student.

Proposed Title IX Regulations

Section 106.45(a): Discrimination on the Basis of Sex

“. . . [A] recipient’s treatment of a complainant in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex, and also states that a recipient’s treatment of the respondent may constitute discrimination on the basis of sex under Title IX.”[23]

Section 106.45(b)(1): General Requirements for Grievance Procedures

“. . . [G]rievance procedures must . . . Treat complainants and respondents equitably . . .; [r]equire an investigation of the allegations and an objective evaluation of all relevant evidence . . . and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness . . .; and that a ensure . . . that any materials used to train coordinators, investigators, or decision-makers not rely on sex stereotypes . . .”[24]


Biased investigations against male students have become a serious problem in campus sexual assault cases. The following strategies are three investigative approaches used by universities, which have resulted in discrimination against men:

  1. Start By Believing program materials instruct sexual assault investigators to:
    1. Focus on witness statements “that corroborate the victim’s account.”
    2. Make sure the incident report does “not look like a consensual sexual experience.”[25]
    3. Make the complainant “appear more innocent.”[26]
    4. Tell the accuser, “I am sorry this happened to you. I’m an advocate, and I’m here to help.”[27]
    5. Collect any “information necessary to undermine” “potential defense strategies.”[28]
  1. Training materials developed by the national consulting firm Margolis Healy:[29]
    1. Consistently use the term “victim,” not complainant.
    2. Refer to the accused student using the gendered pronoun, “he.”
    3. Advise investigators to turn “He said, she said” into “He said, they said,” meaning the investigator should interview multiple witnesses to corroborate the complainant’s version of events, but not interview witnesses for the defense.
  1. The University of Texas School of Social Work’s Blueprint for Campus Police has two tables[30] that coach investigators how to thwart defense strategies, and discusses factors that are traditionally suggestive of innocence, but interprets them as indicative of guilt:
    1. “The alleged perpetrator knows what happened and therefore, appears to make more sense, which can be mistaken for credibility.”[31]
    2. “Studies have consistently shown that detecting deception is difficult, so officers may not realize when a perpetrator is lying.”[32]

These policies discriminate against men because the vast majority of respondents in Title IX proceedings are men. In fact, we have seen less than a handful of cases in which women have been accused, while there have been thousands of Title IX adjudications.

Furthermore, when school officials assume a female complainant is the victim and the accused male the perpetrator, then discount or ignore exonerating evidence, and refuse to consider male, the process necessarily favors women over men. As discussed above, in Doe v. Columbia Univ., the Second Circuit Court of Appeals held that, though the school’s intent in adopting its policies may not have been specifically to discriminate against men, any “policy of bias favoring one sex over the other” constitutes sex discrimination.

Relevant Case Law

Over the years, hundreds of lawsuits have been filed against universities by accused men alleging a broad range of investigational biases and errors, based on the types of policies described above.[33] In five decisions, judges affirmed the accused students’ allegations of investigational deficiencies stemming from sex bias: Columbia University, Lynn University, Syracuse University, Hobart and William Smith Colleges, and Cornell University.

In each of these cases (with minor variations), the accused male student presented credible evidence of non-responsibility, e.g., witnesses contradicting the accuser at Columbia, a contemporaneous video of the sexual encounter at Lynn University, or a toxicology report at Cornell undermining the accuser’s claims of incapacitation. In each case the university essentially ignored exonerating evidence because of preconceived notions about how men and women behave (ie., Duke, as discussed above) and/or to allegedly preempt criticism from campus activists, the media, or the federal government that the institution was being insufficiently tough on sexual assault.

This issue was on display in Doe v. Amherst College after a federal district court denied Amherst’s Motion for Judgment on the Pleadings.[34]

In Amherst, the male plaintiff (Doe) had been incapacitated when the female complainant gave him oral sex. However, the school found the male student repsponsible for sexual assault. It was not until the accused filed his lawsuit that discovery revealed text message that proved his claim thast he was the victim.

The plaintiff in Amherst asserted several causes of action, including that the school had violated Title IX based on selective enforcement and deliberate indifference:

In order to prevail on a selective enforcement claim, Doe was required to to establish that his gender was a “motivating factor behind either the College’s decision to pursue disciplinary action . . . or its decision as to the severity of punishment . . .”[35] The Court found that the accused student plaintiff  had met his burden on this claim, because he had alleged that Amherst encouraged the female complainant to file her complaint but did not do the same for him. Amherst did not even investigate his allegations despite his repeated allegations that he had had been “blacked out” when the female complainant initiated sexual activity with him.[36]

The plaintiff’s deliberate Indifference claim required him to show that Amherst was deliberately indifferent when handling his sexual harassment claim. The court found the male student had met this burden after he asserted that the female complainant initiated sexual activity with him while he was incapacitated. According the Court, “the College did not take even minimal steps to determine whether [the plaintiff] should have been viewed as a victim under the terms of the policy.”[37]

Proposed Title IX Regulations

The proposed Title IX regulations include two provisions designed to reduce investigative bias:

Section 106.45(b)(1): General Requirements for Grievance Procedures

“[G]rievance procedures must . . . [t]reat complainants and respondents equitably; an equitable resolution must . . .; [r]equire an investigation of the allegations and an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence – and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.”[38]

Section 106.45(b)(3): Investigations of a Formal Complaint

“[W]hen investigating a formal complaint, a recipient must . . . “[p]rovide both parties an equal opportunity to inspect and review evidence . . . so that each party can meaningfully respond to the evidence prior to conclusion of the investigation . . . [and] [c]reate an investigative report that fairly summarizes relevant evidence and, at least ten days prior to a hearing . . . , provide a copy of the report to the parties for their review and written responses.”[39]


In many cases, flawed adjudications are a direct result of the use of a single-investigator model in which the same college official serves as the investigator and adjudicator. Sex-biased adjudications have been well documented by accused male student lawsuits.

Relevant Case Law

In six decisions, the judge ruled the institution purportedly found all accused male students responsible for engaging in sexual misconduct (or) employed Title IX officials who were openly biased against male students: University of Oregon, Penn State University, University of Cincinnati, Muskingum University, University of Chicago, and Washington and Lee University.

Proposed Title IX Regulations

Section 106.45(b)(1): General Requirements for Grievance Procedures

“[G]rievance procedures must . . . [t]reat complainants and respondents equitably; an equitable resolution must . . .; [r]equire that any individual designated by a recipient as a coordinator, investigator, or decision-maker not have have a conflict of interest or bias for or against complainants respondents generally or an individual complainant or respondent; and that a recipient must ensure that coordinators, investigators, and decision-makers receive training on the definition of sexual harassment and how to conduct an investigation and grievance process – including hearings, if applicable – that protect the safety of students, ensure due process protections for all parties, and promote accountability . . .”[40]


Cynthia Garrett, Esq. did the final case review and analysis of the report.



  1. Wells v. Xavier Univ., 7 F.Supp.3d 746 (S.D. Ohio 2014)
  2. Harris v. St. Joseph’s Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 13, 2014)
  3. Doe v. Salisbury Univ., 107 F.Supp.3d 481 (D. Md. 2015)
  4. Doe v. Washington and Lee Univ., 2015 U.S. Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015)
  5. Doe v. Salisbury Univ., 123 F.Supp.3d 748 (D. Md. 2015)
  6. Doe v. Brown Univ., 166 F.Supp.3d 177 (D.R.I. 2016)
  7. Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 161297 (N.D.N.Y. Feb. 24, 2016)
  8. Marshall v. Indiana Univ., 170 F.Supp.3d 1201 (S.D. Ind. 2016)
  9. Doe v. Bd. of Regents of the Univ. Sys. of Ga., No. 15-cv-04079 (N.D. Ga. April 19, 2016)
  10. Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016)
  11. Collick v. William Paterson Univ., 2016 U.S. Dist. LEXIS 160359 (D.N.J. Nov. 17, 2016)
  12. Doe v. Lynn Univ., 235 F.Supp.3d 1336 (S.D. Fla. 2017)
  13. Neal v. Colo. State Univ. – Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb. 16, 2017)
  14. Doe v. Amherst Coll., 238 F.Supp.3d 195 (D. Mass. 2017)
  15. Doe v. Ohio State Univ., 239 F.Supp.3d 1048 (S.D. Ohio 2017)
  16. Doe v. Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017)
  17. Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 (M.D. Fla. July 20, 2017)
  18. Doe v. Case Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 (N.D. Ohio Sept. 1, 2017)
  19. Doe v. Univ. of Pa., 270 F.Supp.3d 799 (E.D. Pa. 2017)
  20. Rolph v. Hobart & William Smith Colls., 271 F.Supp.3d 386 (W.D.N.Y. 2017)
  21. Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. Ill. Sept. 20, 2017)
  22. Saravanan v. Drexel Univ., 2017 U.S. Dist. LEXIS 193925 (E.D. Pa. Nov. 24, 2017)
  23. Doe v. Pa. State Univ., 2018 U.S. Dist. LEXIS 3184 (M.D. Pa. Jan. 8, 2018)
  24. Gischel v. Univ. of Cincinnati, 302 F.Supp.3d 961 (S.D. Ohio 2018)
  25. Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018)
  26. Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 36350 (S.D. Ohio Mar. 6, 2018)
  27. Doe v. Marymount Univ., 297 F.Supp.3d 573 (E.D. Va. 2018)
  28. Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 2018)
  29. Elmore v. Bellarmine Univ., 2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29, 2018)
  30. Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. May 2, 2018)
  31. Doe v. Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018)
  32. Doe v. Univ. of Miss., 2018S. Dist. LEXIS 123181 (S.D. Miss. July 24, 2018)
  33. Doe v. Brown Univ., 327 F.Supp.3d 397 (D.R.I. 2018)
  34. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018)
  35. Doe v. Syracuse Univ., 341 F.Supp.3d 125 (N.D.N.Y. 2018)
  36. Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 2018)
  37. Doe v. Rider Univ., No. 3:16-cv-04882 (D.N.J. Oct. 31, 2018)
  38. Powell v. Mont. State Univ., 2018 U.S. Dist. LEXIS 215891 (D. Mont. December 21, 2018)


[1] Proposed Title IX regulation, Section 106.45(a): Discrimination on the Basis of Sex

[2] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. Prop. Dep’t Educ., 83 Fed. Reg. 61462, 61499 (Nov. 29, 2018).

[3] City Journal, “Mainstream Ideas, Fringe Opposition.” January 18, 2019.

[4] NISVS, Tables 2.1 and 2.2.

[5] NISVS,Table 2.2.

[6] Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, 2015. Table 5-3.



[9] Emily Kassie, Male Victims Of Campus Sexual Assault Speak Out ‘We’re Up Against A System That’s Not Designed To Help Us’

[10] Christopher T. Allen, Rebecca Ridgeway & Suzanne C. Swan, College Students’ Beliefs Regarding Help Seeking for Male and Female Sexual Assault Survivors: Even Less Support for Male Survivors. Journal of Aggression, Maltreatment & Trauma, 2015.

[11] MaleSurvivor.

[12] Proposed Title IX Regulation at 61479.

[13] Id. at 61472.

[14] Christopher T. Allen, Rebecca Ridgeway & Suzanne C. Swan, College Students’ Beliefs Regarding Help Seeking for Male and Female Sexual Assault Survivors: Even Less Support for Male Survivors. Journal of Aggression, Maltreatment & Trauma, 2015.


[16] Greg Piper, Judge approves gender-bias lawsuit against Florida college for ignoring evidence in male’s favor. January 17, 2019.




[20] Doe v. Miami Univ., 822 F.3d 579 (6th Cir. 2018).

[21] Greg Piper, Appeals court reinstates reverse discrimination case against Columbia by student accused of rape. July 29, 2016.

[22] Doe v. Columbia Univ., 831 F.3d 46, 55 (2d Cir. 2016).

[23] Proposed Title IX Regulation at 61472.

[24] Id.

[25] EVAWI Effective Report Writing, at 14.

[26] EVAWI Effective Report Writing, at 11.

[27] EVAWI,

[28] EVAWI Effective Report Writing, at 4, 26.

[29] Margolis Healy, Title IX Investigations. Slide 28 (2012).

[30] Busch-Armendariz, N.B., Sulley, C., & Hill, K. (2016). The Blueprint for campus police: Responding to sexual assault. Austin, TX: Institute on Domestic Violence & Sexual Assault, The University of Texas at Austin” Tables 7.3 and 7.4.

[31] Id. at 97.

[32] Id.

[33] SAVE, “Victim-Centered Investigations: New Liability Risk for Universities.” 2016.

[34] Amherst Coll., 238 F.Supp.3d at 229.

[35] Id. at 223.

[36] Id.

[37] Id. at 224.

[38] Proposed Title IX Regulation at 61472.

[39] Id. at 61475.

[40] Proposed Title IX Regulation at 61472.


Rep. Sheila Jackson Lee ousted as chair of Congressional Black Caucus Foundation after lawsuit

Rep. Sheila Jackson Lee, D-Texas, speaks as she departs a deposition before the House Judiciary Committee by Peter Strzok, the FBI agent facing criticism following a series of anti-Trump text messages, on Capitol Hill, Wednesday, June 27, 2018 in Washington. (AP Photo/Alex Brandon) ** FILE **
Rep. Sheila Jackson Lee, D-Texas, speaks as she departs a deposition before the House Judiciary Committee by Peter Strzok, the FBI agent facing criticism following a series of anti-Trump text messages, on Capitol Hill, Wednesday, June 27, 2018 in Washington. (AP Photo/Alex Brandon) ** FILE **
– The Washington Times – Wednesday, January 23, 2019

Rep. Sheila Jackson Lee has been pushed out as chair of the Congressional Black Caucus Foundation after she was accused in a lawsuit last week of retaliating against an employee who complained of being raped.

She also lost her post as the top Democrat on a Judiciary Committee’s crime, terrorism and homeland security subcommittee, which she had been in line to chair in the new Congress.

Despite being the third-ranking Democrat on the Judiciary Committee, she does not have any subcommittee chairmanships, according to the list Democrats announced Wednesday afternoon.

Judiciary Chairman Jerrold Nadler said Ms. Jackson Lee made a decision to “voluntarily and temporarily step back” from the subcommittee chairmanship so as not to derail the panel’s work.

“This decision does not suggest any culpability by Representative Jackson Lee,” Mr. Nadler, New York Democrat, said. He said Rep. Karen Bass would serve as chairwoman “until the matter is resolved and Representative Jackson Lee can resume the role of chair.”

The New York Times reported that key activist groups had said in the wake of the rape-retaliation allegation that they could not work with the Texas congresswoman on reauthorizing the Violence Against Women Act, which is a major piece of work looming for the panel.

Several outlets reported Ms. Jackson Lee’s decision, under pressure, to step down from the CBCF, which is the nonprofit arm of the Congressional Black Caucus, the symbolically powerful group of black lawmakers on Capitol Hill.

The moves came a week after a woman, identified only as “Jane Doe” in her lawsuit, said she was raped by a CBCFemployee in 2015, when she was a 19-year-old intern and her attacker was the 30-year-old coordinator of the CBCF’s intern program.

Her lawsuit contained lurid details and suggested a police investigation ensued, including taking the alleged attacker’s DNA, though it does not appear a prosecution took place.

Ms. Jackson Lee was not chair of the CBCF at the time the woman says the rape occurred but became chair in 2017.

The Jane Doe plaintiff was also hired in Ms. Jackson Lee’s office in late 2017, and at some point last year, told the congresswoman’s chief of staff that she planned to pursue legal action against the CBCF for the trauma she suffered.

The woman says she was soon fired from Ms. Jackson Lee’s office, and says the budget and work performance explanations given don’t jibe with the facts. She says she believes the firing was retaliation.

Ms. Jackson Lee’s office last week denied the wrongful termination and said it was not involved in the events the Jane Doe plaintiff described from 2015.

Her office did not respond to a request for comment Wednesday on her ouster from her leadership posts.

Copyright © 2019 The Washington Times, LLC.
Dating Violence VAWA Inclusion Mandate

Five Principles for Re-Thinking VAWA: A Bipartisan Approach

E. Everett Bartlett, PhD

President, Coalition to End Domestic Violence

As we know, Congress only approved short-term extensions to the Violence Against Women Act in 2018.[1] It did not succeed in accomplishing the five-year reauthorization of the law.

In the Senate, a VAWA bill was never introduced, even though a hearing was held on March 21.[2] In the House, Rep. Jackson Lee did introduce a reauthorization bill, H.R. 6545.[3] But lacking Republican support, the bill never went before the Committee for a vote.

It is clear that the problem was not a lack of legislative interest or concern. The real issue lies with an evolving understanding of the nature of domestic violence, and especially a broad public concern over the problem of over-criminalization in our society.

The solution to this apparent impasse is to take a step backwards to better understand the contours of this evolving understanding. To accomplish this, I am proposing five principles for re-thinking VAWA. I believe all of these principles enjoy general bi-partisan support:

Rely on science, not ideology

In 2004, the National Academy of Sciences released a comprehensive analysis of VAWA, concluding that domestic violence programs are often “driven by ideology and stakeholder interests rather than plausible theories and scientific evidence of fact.”[4] By “ideology,” the NAS was referring to the prevailing model of “patriarchal control,” which posits domestic violence is a by-product of men’s abiding thirst for power and control over women.

But six years later, the Centers for Disease Control released the results of its NISVS survey. This historic survey found female-on-male partner violence was more common than male-on-female violence.[5] Even more surprising, the survey found the highest rates of violence were found in lesbian same-sex relationships.[6] The “patriarchal control” model obviously doesn’t fit with these well-documented facts.

Both liberals and conservatives believe in the need for truth, and embrace the role of science to elucidate the truth.

Avoid over-criminalization

The United States has the highest rate of incarceration of any country of the world. University of Maryland law professor Leigh Goodmark recently noted, “scholars have argued that the turn to criminal law to address intimate partner violence contributed to mass incarceration.”[7] Goodmark urges use of a more balanced approach that views domestic violence as an economic, public health, community, and human rights problem.

Last year, the FIRST STEP Act was approved with strong bi-partisan majorities in Congress.[8] For the first time, Congress acted to reverse the decades-long process of creating new crimes, expanding definitions of existing crimes,[9] reducing due process protections, and increasing punishments.

Clearly, the goal of reducing over-criminalization enjoys the support of both Republicans and Democrats.

Address waste, fraud, and abuse

Last March the Washington Post published a report titled, “Mice in the couches, mold on the walls: Years of problems at this government-funded shelter.”[10] The problem at the Safe Passages Shelter was not a lack funding, because its annual budget was $1.3 million. Rather, the problem was a lack of programmatic and financial accountability. Eventually, the shelter had to be temporarily closed.

This was not an isolated problem. Department of Justice audits of 47 VAWA grantees found that 34 of them were “Generally Non-Compliant.”[11] In other words, 72% of the grantees flunked the audit.

Both conservatives and liberals are troubled by accounts like the Safe Passage Shelter. Surely, all persons can support measures to prevent closures of abuse shelters and to prevent the pilfering of funds designed to stem partner violence.

Recognize the problem of false allegations

By any measure, we now experiencing an epidemic of false allegations of domestic violence. One survey found that 9.7% of American adults report they have been falsely accused of domestic violence, sexual assault, or child abuse.[12]

One online petition states, “Laws enacted to protect the victims of the vile crime of domestic violence are being misused by both citizens as well as law enforcement, and in this process innocent men’s lives are being destroyed.”[13] This petition currently has over 39,000 comments.

False allegations not only ruin the lives of the falsely accused, they also undermine the credibility of future victims. That’s a concern that liberals and conservatives alike can relate to.

Involve a broad range of stakeholders

For years, a group known as the National Task Force to End Sexual and Domestic Violence has controlled the VAWA reauthorization process. But if you visit the NTF website,[14] there is no listing of staff names, addresses, phone numbers, or member organizations.

As one observer concluded, “U.S. public policy on domestic violence is being controlled by an organization that is utterly secret. We neither know…what the NTF is, what it does, who funds it, who is affiliated with it, or whether it violates federal law.”[15]

To address this problem, the 40 members of the Coalition to End Domestic Violence have requested that they “have a seat at the table as full and frequent participants in the drafting process.”[16]

Inclusiveness is implicit in the American ideals of democratic decision-making and citizen involvement. “Inclusiveness” is a goal that both liberals and conservatives can support.


Given the difficulty in accomplishing the VAWA reauthorization, we are now making two recommendations:

  1. A contract will be made with an external, independent, and scientifically based organization to do a thorough assessment of the Violence Against Women Act. This assessment will be similar in scope to the one conducted in 2004 by the National Academy of Sciences. The report would contain legislative recommendations. This likely would entail a two-year process.
  2. During this period, Congress will pass a two-year extension of the existing VAWA law with straight-line appropriations.

In short, viewing domestic violence as a human problem, rather than as an ideological crusade, will allow us to move forward with this vitally important piece of legislation.






[5] Centers for Disease Control and Prevention. 2010 National Intimate Partner and Sexual Violence Survey, Atlanta, Georgia. Tables 4.7 and 4.8.

[6] NISVS: 2010 Findings on Victimization by Sexual Orientation. Tables 6 and 7.

[7] Leigh Goodmark. Decriminalizing Domestic Violence: A Balanced Policy Approach. 2018. Page 3.











Public Comment Period Extended for Title IX Rule

January 18, 2019
The Department of Education said Thursday it would extend the public comment period for a proposed Title IX sexual misconduct rule. Technical issues have made the website that accepts public comments on federal rules unavailable since Wednesday.

Politico first reported the issues on the site,, which a banner message blamed on the ongoing government shutdown before federal officials said a technical glitch was to blame.

“The department will extend the public comment period to ensure that the public will have had 60 days in total to submit comments on this proposed rule using the Federal eRulemaking Portal,” said Liz Hill, a spokeswoman for the Education Department.

Comments on the new campus sexual misconduct rule were due by Jan. 28. The new closing date will be determined when the website is back online.


New Title IX Rules Would Empower Both The Accused And The Survivors

While I’m not a fan of most of Betsy DeVos’s reforms, when it comes to Title IX, I’m in full support.

The proposed rules do help the accused by restoring their fundamental right to cross-examine their accuser. For students facing expulsion and being branded as sexual predators, this is no small thing.

But victims would also be empowered. They’d be able to opt to participate in a facilitated conversation in which the harm is identified and responsibility taken.

“I just wanted him to hear me,” explained one woman who participated in such a conference.

“I realized that saying sorry wasn’t enough,” said one repentant man.

The old guidelines prohibit this option.

And there’s another benefit for victims. Right now, the very people who might provide much-needed counsel are deputized as mandatory reporters. Should faculty overhear anything suspicious at the salad bar or in a personal essay on dorm life or wherever, we’re required to report it immediately to the Title IX office.

If the student says she doesn’t want to report, we are to override her resistance.

Any ambivalence on her part, we’re told at annual trainings, is a symptom of trauma. Under no circumstances are we to talk with a student about the incident, as we might re-traumatize her.

The proposed rules give colleges the chance to retire the undercover army of sex police. Teachers can once again assume the essential role of mentor, exploring options rather than betraying a student’s confidence.

For victims, these changes are enormous. Instead of being treated as if they’re too traumatized to act on their own behalf, they’re given the opportunity to think and make decisions for themselves.

Our nation’s undergraduates need us to believe in their capacity to grow and change. Our society needs adults who’ve been given the support to learn from their mistakes, and to tell others clearly when boundaries have been crossed.

And we all need more opportunities for honest conversations about the pitfalls of passion.

The DeVos guidelines help us to get there.

Meg Mott has studied Title IX, and teaches politics at Marlboro College in Marlboro, Vermont


Title IX consultants mock cross-examination in campus trials: ‘More evidence will not overcome bias’

Does DeVos see ‘every hearing as a Perry Mason episode’?


Multiple appeals courts at both the state and federal level have explained the importance and necessity of cross-examination in campus sexual-misconduct proceedings.

They often invoke a quote by the famed American jurist Henry Wigmore, cited in a 1972 Supreme Court ruling, that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

A high-profile Title IX consulting firm doesn’t agree, at least when cross-examination is used in its field.

In its latest “tip of the week,” the National Center for Higher Education Risk Management mocks Education Secretary “Betsy DeVos and her supporters” for supposedly arguing that cross-examination is “the panacea” for the problems in Title IX proceedings.

The Department of Education’s proposed Title IX regulation, which is open to public comment for another two weeks, would require these proceedings to allow cross-examination and exclude the testimony of any party or witness that refuses to undergo cross-examination.

The core problem in these proceedings “is actually rooted in bias and lack of training,” NCHERM’s unsigned six-page letter reads:

[The Education Department] believes – incorrectly – that producing more and better evidence in hearings will overcome the biased and deficient analysis that is plaguing those proceedings. Phooey. The solution isn’t about evidence. More evidence will not overcome bias, because bias inherently causes decision-makers to ignore and overlook evidence. Believing otherwise is wishful thinking. Producing more and better evidence (the purported goal and purpose of cross-examination) simply provides those who are biased more to ignore and overlook.

The Title IX field is riddled with “implicit bias” and those who make decisions in proceedings often possess “deficient analytical skills,” which requires “more and better training,” the group argued. When bias and deficient analysis intersect, “that multiplies the problem into confirmation bias,
which is much more difficult to unravel.”

In a paragraph that shows the group’s underlying disdain for advocates of due process, NCHERM alludes to the “greatest legal engine” quote:

Perhaps [DeVos and her supporters] see every hearing as a Perry Mason episode, replete with an opportunity to break the witness and make them confess the truth? This kind of superstition results from watching too many TV courtroom dramas and not enough real time in actual courtrooms or educational administrative hearings.

The conceit of humans believing they are lie detectors undergirds the belief that crossexamination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.

MORETitle IX bureaucrat group charges $1,499 to teach you due process

The “tip” goes on to suggest talking points for readers when they submit comments on the notice of proposed rulemaking, including the “high risk of traumatizing the parties” through “adversarial” elements.

It asks what will happen when parents can actively represent their children in proceedings, rather than sit silently as hearing panelists and campus prosecutors grill the parties:

I have seen Mom in this process. Many times. Mom is not genteel. Mom is not trained. Mom is a momma bear doing anything she needs to protect her cub. Maybe a student needs such a zealous advocate, but when the claws come out, civility is forgotten. The same can be true for Dad; he has claws, too.

The tip also suggests that colleges will have trouble recruiting faculty and staff to serve as hearings officers and chairs when those people will be “doing battle with skilled attorneys on how a question should be phrased, whether it should be posed, and whether it was sufficiently answered.”

But it returns at the conclusion to emphasize that “this entire cross-examination blueprint could significantly chill victims from ever deciding to report sex discrimination and seek formal redress” – and “that seems to be” the intention of the department’s Office for Civil Rights.

Read the tip of the week, which was shared by the due-process group Stop Abusive and Violent Environments as a “good laugh.”