The Great Due-Process Revival

Signs at a “#MeToo” demonstration during the second annual Women’s March in Cambridge, Mass., January 20, 2018. (Brian Snyder/Reuters)

I was traveling Friday and missed a rather interesting and consequential story. Lisa Borders, the CEO of Time’s Up, an “organization born of the #MeToo movement that advocates for safe and harassment-free workplaces,” has resigned. Why? Because her son was accused of sexual assault. But that’s not what makes the story truly notable. Family troubles can cause people to press pause on their careers all the time. What’s notable is that the CEO resigned in part to advocate for her son’s innocence:

Borders made it clear to Time’s Up leadership that she planned to proactively defend her son, someone close to the situation who was not authorized to discuss it publicly, and so spoke on the condition of anonymity, told The Washington Post. This created a difficult tension within the organization, whose mission revolves around believing survivors of sexual abuse.

In response, Time’s Up put out a statement that said, in part, that it “unequivocally supports all survivors of sexual harassment and abuse” and that “all of our actions were fully guided by our support for survivors.” Here’s the statement in full:

Last week I wrote that #BelieveWomen was in a state of legal collapse. Courts, including most notably California courts, are turning against #BelieveWomen-motivated campus kangaroo courts. The court decisions are becoming so problematic for universities that many campuses are being forced to change policies to protect due process regardless of whether the Trump administration finalizes its new Title IX regulations. But as the Time’s Up story shows, due process just might be enjoying a cultural revival right alongside its legal revival.

It turns out that when accusations are leveled at people you love, “#BelieveWomen” or “believe survivors” becomes not just a slogan but a millstone around the neck of a son or spouse — a son or spouse who you may believe to the bottom of your heart is innocent of any wrongdoing. In that case, due process transforms in an instant from a tool of the patriarchy to your loved one’s last and only hope.

I don’t believe for a second that pure partisans will adjust their behavior. They’ll still cling to due process for their friends and reject it for their enemies. Hypocrisy will continue to abound, but in the battle for American hearts and minds, it seems that for now those who are defending the centuries-old principles of western jurisprudence have the upper hand. When even a #MeToo movement leader circles the wagons around her son, it’s obvious why due process has such enduring appeal. Accusation should never equal conviction, and due process helps rather than hinders the search for truth.


Judge approves anti-male bias lawsuit against University of Colorado

Accuser broke confidentiality with no sanction


The University of Colorado-Boulder’s use of “trauma-informed” practices in sexual misconduct investigations are “plausible” evidence of bias against males, a federal court ruled last week.

It denied the taxpayer-funded university’s motion to dismiss Title IX and due process claims by William Norris, who was suspended and banned from campus after two disputed encounters with “Jane Doe” over a lengthy relationship.

Norris claimed the university made numerous procedural errors during its 2016 investigation of Doe’s claims from 2014 and 2015. He also faulted the Title IX officials’ backgrounds in women’s studies and public support of women’s advocacy groups, calling those a “conflict of interest” that prejudiced his investigation.

The officials’ backgrounds do not make them inherently biased, U.S. District Judge Lewis Babcock said, but he found other reasons to question the fairness and impartiality of the proceeding against Norris.

The student has provided “at least some relevant information” to demonstrate that his gender-bias claims are plausible, the required standard in the 10th U.S. Circuit Court of Appeals, Babcock said. The judge also frowned upon “the timing of the notice” of investigation given to Norris and restrictions on his ability to review the investigation file.

“The court’s order made no findings that the University of Colorado or its employees engaged in any improper conduct,” university spokesperson Melanie Marquez Parra told The College Fix in an email. “The court could not receive evidence at this stage and only found the complaint sufficient for the case to proceed to discovery.”

Repeatedly used the wrong code to judge him

Norris and Roe had a year-and-a-half long friendship where “they would often kiss,” according to Babcock’s summary of the lawsuit. She later reported two sexual encounters as nonconsensual to the Boulder Police Department.

In response, Norris claimed he stopped moving his hand toward Roe’s genitals when she asked him to stop in spring 2014. He chose to stop their sexual intercourse in July 2015 due to feeling “guilty about cheating on his girlfriend,” who was also a “close friend” to Roe.

Roe claimed the day after the sex that she didn’t remember it. They didn’t talk again until six months later, when she accused him of rape.

CU-Boulder’s Office of Institutional Equity and Compliance appointed two investigators, Lauren Hasselbacher and Tessa Walker, to examine Roe’s allegations after it learned about her police report. The university found him responsible for the first but not second allegation by Roe.

MORECU-Boulder buys off professor who exposed kangaroo-court system

Title IX Coordinator Valerie Simons was the sole determiner of Norris’s sanction, which also included mandatory treatment from “a licensed sex offender provider” and Simons’ personal approval for Norris’s readmission. A jury exonerated Norris in October 2017, and he filed suit against the university nearly a year later.

The university botched Norris’s proceeding by applying a conduct code that wasn’t in effect during his first encounter with Doe.

CU-Boulder had removed sexual misconduct from the student conduct code between Norris and Roe’s disputed encounters. It created the Office of Institutional Equity and Compliance in August 2014 and devised new procedures specifically for sexual misconduct, which did not allow appeals.

Though the 2013-2014 student conduct code gave Norris the right to appeal, this disclosure wasn’t mentioned in his 2016 sanctions letter. When she eventually granted Norris an appeal, Simons again ignored the 2013-2014 code, which requires a committee to review appeals. The Title IX coordinator reviewed her own determination instead.

“Multiple times during this process,” notifications sent to Norris wrongly cited the 2014-2015 code as applicable.


Just in: Judge denies @CUBoulder motion to dismiss due process, Title IX lawsuit against the school. Second straight case w/setback for Colorado.

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Judge allows TIX claim to move forward b/c of myriad procedural problems with Colorado’s investigation process, plus possible gender bias. Very, very interesting section on how ideological bgrd of inv’r might have tilted her to evaluate evidence unfairly.

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Wouldn’t show him investigation file before police interview

Norris faulted Title IX officials for making several decisions that favored Roe, including giving her “unlimited time to participate” while holding Norris to strict response times.

Investigators issued their “written evidence summary” before letting Norris review the investigation file or answer follow-up questions. Even when he reviewed it, an OIEC staffer was present and Norris wasn’t allowed to make copies.

In contrast, Roe was given the investigation file and told not to share it. She shared it with police and was not punished.

CU-Boulder only gave Norris a notice of investigation after he was interviewed by Boulder police, who gave him “incorrect details about Roe’s allegations.”

MORECU-Boulder pays accused student $15k, promises positive reference

Norris said this explains his “differing answers” to police and campus authorities, and Judge Babcock called this a “plausible claim that he did not receive adequate notice or a meaningful opportunity to be heard.”

The accused student “does not simply disagree” with the findings against him, as CU-Boulder claims, Babcock said: His lawsuit “sets forth a litany of grievances which he argues denied him of a fair and impartial process.”

In addition to the late notice and withholding of the investigation file, the university denied Norris a hearing and the right to cross-examine his accuser, stopped him from interviewing witnesses, hid all information about the committee that reviewed the investigative report, and let Simons conduct an “administrative review” of her own decision.

Joe Biden brought the ‘It’s On Us’ campaign to campus

Babcock also said the “public pressure” on the school to find accused men responsible for sexual misconduct could have played a role in the gender bias alleged by Norris.

The Department of Education’s Office for Civil Rights had released its “Dear Colleague” letter a few years earlier, which Norris alleges “minimized due process protections for the accused.”

OCR had also opened a Title IX investigation of CU-Boulder that was ongoing around the time of the first sexual encounter. The federal government also told schools to use a “trauma informed approach” in proceedings.

The university responded by hiring Simons, creating the new sexual misconduct code, and telling the campus it was “working hard to make the process as survivor-focused as possible.” Vice President Joe Biden delivered a speech at CU-Boulder for the White House “It’s On Us” campaign, and both Chancellor Philip DiStefano and Simons appeared in a video supporting the campaign.

The combination of all these occurrences with Norris’s claims of bias in his proceeding was enough for Babcock to let the lawsuit proceed. He cited the allegations that Simons “compared herself and the Investigators to judges sitting in a court of law,” should not have used a trauma-informed approach, and “overlooked inconsistencies of Roe’s account.”

Even if the public pressure side of the equation is not “sufficient” on its own, Norris has still plausibly alleged the university was biased against him, and thus deserves “access to discovery” to support his allegations, the judge said.

Judge allows TIX claim to move forward b/c of myriad procedural problems with Colorado’s investigation process, plus possible gender bias. Very, very interesting section on how ideological bgrd of inv’r might have tilted her to evaluate evidence unfairly.

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Judge also allows due process claim to move forward: notes lack of notice/access to file & lack of an appeal. In most important due process section, this becomes the latest out-of-circuit district court to accept as persuasive the CA6 Doe v. Baum holding on x-examination.

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Babcock dismissed the university’s defense of its procedures as meeting minimum requirements for “timely” notice and access to documents and “multiple opportunities to be heard throughout the investigation.”

He pointed out the university’s failure to investigate the first disputed sexual encounter with the conduct code that was in place at the time, and its repeated notices to Norris that listed the wrong code.

Simons and Hasselbecker, the investigator, were also involved in Title IX compliance and under the same public pressure to find accused men responsible as they carried out their duties.

“The University of Colorado has continuously evaluated and improved its policies to provide safety and support to those who experience sexual assault while simultaneously ensuring that everyone involved in an investigation has a genuine and meaningful opportunity to be heard,” spokesperson Parra told The Fix.

“We look forward to presenting evidence to the court showing that our employees who conduct and oversee investigations administer these processes fairly and in an unbiased manner that reflects our commitment to educational opportunity, equity, and the rule of law,” she said.


Missouri Title IX overhaul gains steam, but faces uncertain future



Legislators voice support, but may wait for national Title IX changes to take effect

In November 2017, Holly Rehder published her #MeToo story in the St. Louis Post Dispatch.

“There’s power in telling. Whether you receive justice or not,” the Missouri state representative wrote, sharing her sexual abuse at the hands of her grandfather.

“For every person out there, young or old, what you are going through, or what you have been through, does not define you,” she urged readers. “Find your voice. Tell someone. Even if your abuser is someone you love. Their power lies in our silence.”

Alongside her experience, Rehder also supports stronger due-process protections for accused students in campus Title IX proceedings.

In a phone interview with The College Fix, the Republican opened up about why she’s cosponsoring legislation that would make significant overhauls to Title IX procedures.

She has been on multiple sides of the issue, both as a victim and as a parent. “We should never be, as Americans, accepting of removing due process – we are innocent until proven guilty,” Rehder said.

“Although I very much understand the other side of this and want people prosecuted when they have harmed someone, certainly there’s a way to do that … without removing someone else’s rights before they’ve even been convicted.”

Rehder said the mantra of believing all women is a disservice to victims such as herself. “I think it very much … diminishes what we’ve been through to just say we’re going to blanketly believe everyone.”

While the #MeToo movement has been hugely important to create new norms – to convince victims to speak up by default – it should not come at the cost of removing someone else’s rights before they’ve been convicted, she said.

This sentiment was echoed by other Republican female legislators who spoke with The Fix by phone.

“Title IX has been expanded to too many things that were not its original purpose,” Rep. Cindy O’Laughlin said. She cautioned against making universities judge and jury on this issue, stressing that a university “is not a court of law.”

O’Laughlin has four sons and worries about an environment that leads to manufactured complaints. “These cases should be turned over to the appropriate authorities,” she said.

While the House (HB 573) and Senate (SB 259) bills have backing from outspoken lawmakers such as Rehder, and the Republican Party holds majorities in both chambers and the governorship in the state, their immediate future is unclear because of parallel activity at the U.S. Department of Education.

A potential timeline for the bill could be two or three weeks before debate on the floor, but legislative leaders in the House are waiting for the release of new sexual misconduct rules from Education Secretary Betsy DeVos*, said Rep. Rebecca Roeber.

Rep. Peggy McGaugh believes the bills track with the federal government’s proposed revisions to Title IX procedures, but her supportive House colleagues may wait for the final federal regulations before proceeding with a vote.

She told The Fix she hopes other states will follow Missouri’s example if the bills become law. The sponsors of both previously expressed optimism to The Fix that they would pass.

The Department of Education’s proposed overhaul received significant public backlash in comments filed, and those sentiments are reflected by Missouri House Minority Leader Chrystal Quade.

“I am completely against” the state legislation to overhaul Title IX proceedings, the Democrat wrote in an email.

“This legislation destroys protections for sexual assault survivors, creates a terrible definition of consent that conflicts with federal law and also puts our federal financial aid in jeopardy,” Quade wrote. “We are watching it closely and will fight it every step of the way.”

One public advocacy group is citing the possible conflict between pending federal regulations and Missouri’s procedures if the legislation is signed into law.

“Our overarching concern” is that “changing the state law now runs the risk of having conflicting guidance or incompatibility between state and federal requirements,” Paul Wagner, executive director of the Council on Public Higher Education, wrote in an email to The Fix.

His organization is in dialogue with the bills’ sponsors. The General Assembly should “hold off on new legislation until the federal requirements are finalized, and then at that point the state can evaluate what it likes and doesn’t like about the federal rules the universities have to follow,” Wagner said.

It’s unclear whether the university system’s flagship campus would support or oppose the legislation. It appears to be opposed, judging by the comments of Donnell Young, assistant vice chancellor for student engagement and success.

“It could silence some students, one that was already afraid to go through the legal process anyway, but it can also stop them from going through a university process because they don’t want the double taxation of going through the process,” Young told The Columbia Tribune.

Young and Mizzou spokesman Christian Basi did not respond to multiple email inquiries about the university’s official stance on the bill.

MORE: Proposed legislation emphasizes due process



Correction: The article previously misidentified an aspect of Rep. Rehder’s story. Her published story told of her abuse at the hands of her grandfather, not her father. It has been updated.


Continued Judicial Rulings Against Biased, ‘Victim-Centered’ Campus Investigations

Campus investigators wield considerable influence in shaping the evidentiary record on which the fact-finder relies in rendering a determination of innocence or guilt. Current training administered to Title IX investigators focuses on a victim-centered approach that encourages them to “believe the victim.” Such “victim-centered” investigations go by a variety of names, including Start By Believing and “trauma-informed.”  Such approaches may be appropriate for counselors and therapists, but contradicts ethical codes that call for investigators to conduct their work in a neutral and objective manner.

In the case of Start By Believing investigations, a California Task Force recently recommended,

“The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent. Investigators and adjudicators should consider and balance noteworthy inconsistencies (rather than ignoring them altogether)…”

In 2016, SAVE released a report titled, Victim-Centered Investigations: New Liability Risk for Colleges and Universities. . The report concluded with this recommendation:

SAVE urges university administrators to take prompt measures to end so-called “victim-centered” investigations at their institutions. Simply put, such approaches are inconsistent with the most basic notions of fairness, repudiate the presumption of innocence, and are likely to lead to wrongful determinations of guilt, thereby increasing schools’ liability exposure.

This recommendation apparently was ignored. As a result, lawsuits alleging flawed campus investigations have continued. This is one example:

In 2014 Matt Rolph, then a student at Hobart College in Geneva, NY, was accused of sexually assaulting his long-time girlfriend, “Jane Roe.” A jury cleared Rolph of all charges.

But the college decided to make an example of Rolph.  So the college hired Erin Beatty, an outside person to conduct the investigation. Even though Beatty claimed to be a “certified Title IX investigator,” in fact there is no formal process for such a certification.

During the course of the investigation, the investigator (1) did not record any interviews; (2) failed to review text messages sent by Roe; (3) did not question Roe’s motive for delaying her report to school officials; (4) failed to obtain documentation supporting Roe’s claim of medical issues after reporting the alleged rape; and (5) did not conduct any follow-up interviews to resolve inconsistencies among witness statements.

Based on the investigator’s report, the school’s disciplinary panel ruled that Rolph violated the school’s sexual misconduct policy and had him expelled.

So Rolph filed a lawsuit. On September 20, 2017, federal judge Elizabeth Wolford ruled in favor Rolph’s claims of investigative bias.

Following is a partial listing of lawsuits alleging biased investigations in which the judge ruled in favor of the accused student. The first section consists of judicial commentaries on the lawsuits. The second section presents cases in which the alleged student alleged that he was a victim of sexual assault, but the investigator failed to consider that allegation.

Judicial Commentaries

In several of the cases, the judge commented specifically on the flawed investigative procedures:

John Doe v. Washington and Lee University — 2015

In the course of the investigation, Ms. Kozak and Mr. Rodocker ultimately interviewed at least nine people. These witnesses included two of Plaintiff’s four recommended witnesses and at least eight witnesses recommended by Jane Doe, although it is unclear from the pleadings if Jane Doe recommended additional individuals who were not interviewed. When Plaintiff questioned why two of his suggested witnesses were not interviewed, Ms. Kozak stated that the interviews would not be necessary, as they already had enough facts. (Pg. 7 – Opinion)

John Doe v. Georgia Board of Regents — 2016

The Student Sexual Misconduct Policy at Georgia Tech does not allow for a hearing and does not allow for any kind of cross-examination, but rather vests all power in one individual who both investigates and adjudicates. The other due process violations alleged by Plaintiff are also arguably more pressing in light of the single investigator/adjudicator model. The inclusion of admittedly extraneous innuendo from witnesses concerning rumors of Plaintiff’s general character and the refusal to interview certain witnesses is potentially more problematic in an investigator/adjudicator model. (Pg. 25-26)…

To put it bluntly, Mr. Paquette’s [Investigator] testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional. (Pg. 37-38)

John Doe v. The Trustees of the University of Pennsylvania — 2017

Specifically, the Complaint alleges that officials who handled Plaintiff’s case were trained with, among other materials, a document called “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators” (“17 Tips”). That document warns against victim blaming; advises of the potential for profound, long-lasting, psychological injury to victims; explains that major trauma to victims may result in fragmented recall, which may result in victims “recount[ing] a sexual assault somewhat differently from one retelling to the next”; warns that a victim’s “flat affect [at a hearing] does not, by itself, show that no assault occurred”; and cites studies suggesting that false accusations of rape are not common.

At the same time, the document advises that the alleged perpetrator may have many “apparent positive attributes such as talent, charm, and maturity” but that these attributes “are generally irrelevant to whether the respondent engaged in nonconsensual sexual activity.” It also warns that a “typical rapist operates within ordinary social conventions to identify and groom victims” and states that “strategically isolating potential victims [] can show the premeditation” commonly exhibited by serial offenders.

In light of these allegations, we conclude that the Complaint plausibly alleges that Defendant breached the contractual requirement that it train Hearing Panel members “to fulfill their responsibilities as adjudicators according to the procedures and policies outlined” in the Disciplinary Procedures and “to ensure compliance with Title IX.” In light of these same allegations, we also conclude that the Complaint plausibly alleges that the investigators were not “appropriately trained as investigators in handling sexual violence cases.”

John Doe vs. Brown University — 2018

[Investigator] Perkins’ assessment that there was insufficient evidence to support [accused student] Doe’s fabrication claim was particularly problematic given that she had refused to ask for evidence that might have proven it so and been exculpatory to Doe. …

The problem here was that Perkins made the initial decision to include the conspiracy claim and corresponding character evidence, but then chose not to complete the evidence-gathering, and went on to say that there was insufficient evidence to support Doe’s fabrication claim. Because of this, her failure to request the text messages between Ann and Witness 9 was a violation of Doe’s right “[t]o be given every opportunity to . . . offer evidence before the hearing body or officer.”

John Doe v. University of Southern California — 2018

But it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them. A charge of “encouraging or permitting others to engage in misconduct” that can penalize completely different behavior based on the decision-maker (SJACS versus the Appeals Panel), without notice to the student, is indeed as standardless as the undefined “gross incompetence” in Wheeler. (Pg. 25)…Requiring John to request access to the evidence against him does not comply with the requirements of a fair hearing. (Pg. 29)

John Doe v. The University of Mississippi, et. al. — 2018

Turning then to Doe’s arguments regarding Ussery, he says her investigation was biased and flawed, that it resulted in an unfair report that was presented to the Judicial Council as the official report of the Title IX Coordinator, and that the panel itself had been trained in a way that prejudiced Doe’s ability to be heard. As to that training, Doe makes the following points: (1) the training material “advises that a ‘lack of protest or resistance does not constitute consent, nor does silence,’” (2) it “advise[s] the panel members that ‘victims’ sometimes withhold facts and lie about details, question if they’ve truly been victimized, and ‘lie about anything that casts doubt on their account of the event,’” and (3) it explains that “when Complainants withhold exculpatory details or lie to an investigator or the hearing panel, the lies should be considered a side effect of an assault.”

This is a he-said/she-said case, yet there seems to have been an assumption under Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered.

It is therefore plausible that the scales were tipped against Doe to such a degree that further procedural safeguards may have lessened the risk of an erroneous deprivation.

Andrew Doe v. The University of Mississippi, et. al. — 2019

Turning then to Doe’s arguments regarding Title IX Coordinator, he says her investigation was flawed because the panel itself had been trained in a way that prejudiced Doe’s ability to be heard.

As to the training, Doe makes the following points: (1) the training material “provides that just because an individual does not protest or resist sexual activity their silence and lack of resistance does not constitute consent,” (2) it “provides that when both parties are intoxicated, findings are to be made in favor of the complainant, who is typically female,” and (3) the materials “advise the panel members that ‘victims’ sometimes withhold facts and lie about details, question if they’ve truly been victimized[,] and ‘lie about anything that casts doubt on their account of the event.’”

Taken as a whole, the Court concludes that Doe has stated a plausible claim. This is a consent-based case in which the victim did not appear before the hearing panel, yet there seems to have been an assumption under Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered. Coupled with the alleged deficiencies in the investigation, it is plausible that the scales were tipped against Doe to a degree that further procedural safeguards may have lessened the risk of an erroneous deprivation.

When the Accused Student Allegedly is the True Victim of the Sexual Assault

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 and 2019), Miami University, Amherst College, Williams College, and Drake University.

Two of these cases are described below:

Amherst College – 2017

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

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.”

Rollins College – 2019

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.

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.

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.


Accused College Students Deserve the Presumption of Innocence

Betsy DeVos
Secretary of Education Betsy DeVos believes that college students accused of sexual misconduct in Title IX cases are owed a presumption of innocence, or non-responsibility, in keeping with a bedrock principle of Western justice. Attorneys general from 18 states and the District of Columbia disagree.In a formal letter, these senior law-enforcement officials, who must overcome the presumption of innocence in their criminal prosecutions, asserted that the presumption of non-responsibility in campus proceedings “improperly tilts the process” in favor of the accused, and that it therefore should not be required of colleges, as the Department of Education recently suggested it should be in a proposed rule.Their reasoning:

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation.

Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation.

The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard. The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment. Accordingly, there should be no presumption regarding the respondent’s responsibility.

That is the opinion of the highest-ranking law-enforcement officials in the jurisdictions of Pennsylvania; New Jersey; California; Delaware; Washington, D.C.; Maine; Hawaii; Maryland; Illinois; Minnesota; Iowa; Nevada; Kentucky; New Mexico; North Carolina; Oregon; Rhode Island; Vermont; and Washington.

There is “no justification for limiting presumption of innocence to criminal cases,” Ken Pennington, a law professor who has published scholarship on the presumption of innocence, told me by email. “Presumption of innocence is not a procedural matter as American jurisprudence would have it, it is a right that is due to every human being.”

Nevertheless, it is frequently under attack. As crime or terrorism increases, popular support grows for stopping and frisking people on the street without probable cause or imprisoning them without charges or trial.Even falling crime rates don’t eliminate this authoritarian impulse. “When you see these thugs being thrown into the back of a paddy wagon,” President Donald Trump told an audience of cops last year, “you just see them thrown in, rough, please don’t be too nice. When you guys put somebody in the car and you’re protecting their head, the way you put their hand over, like, don’t hit their head and they’ve just killed somebody. I said you can take the hand away, okay?”The comparative legal scholar François Quintard-Morénas has written that “the principle that the accuser bears the burden of proving the guilt of the accused has its roots in antiquity. One of the oldest written codes of law, the Babylonian Code of Hammurabi, already embraced it.” It can be found in ancient Greece and Rome, in papal pronouncements from bygone centuries, in King Louis XVI’s court, in the Declaration of the Rights of Man, and in British common law.

Summed up today as “innocent until proven guilty,” the principle “has a dual dimension,” Quintard-Morénas wrote: “A rule of proof casting on the prosecution the burden of proving guilt, it is also a shield that prevents the infliction of punishment prior to conviction.”

He argues that France is committed to both dimensions, unlike the United States. “While France recently reinforced the presumption of innocence by elevating it to a personality right, Anglo-American jurisdictions tend to view the doctrine as a mere rule of proof without effect before trial,” Quintard-Morénas observed. “Denying that the presumption of innocence has any application before trial ultimately legitimizes the unnecessary indignities inflicted upon a growing number of persons accused of a crime. A revitalization of this cardinal principle of Anglo-American jurisprudence is needed at a time when the words ‘accused’ and ‘convict’ are increasingly synonymous.”

France’s Declaration of the Rights of Man states:

Every man being presumed innocent until he has been found guilty, if it shall be deemed absolutely necessary to arrest him, every kind of rigor used, not necessary to secure his person, ought to be severely repressed by the law.

The United States certainly falls short of that standard. The public defender Jeffrey D. Stein explains how America’s failure to treat people as innocent until proven guilty causes some defendants to plead guilty to crimes they didn’t commit. The failure to treat people as innocent until proven guilty also leads to defendants spending years in miserable jails before being tried for their alleged crimes.

Of course, American attorneys general do not admit that they are denying the presumption of innocence to criminal defendants if they hold them for months on end in dangerous, overcrowded jails. They act as though they understand the presumption of innocence in the narrower sense, as “a mere rule of proof.”And that prevailing understanding makes it more noteworthy that they’re calling on a federal agency to promulgate rules that deny the presumption of innocence to college students who stand accused of sexual misconduct, explicitly arguing, in part, that the presumption of innocence and a high burden of proof make it too hard to arrive at findings of responsibility, as if the criminal-justice standard is unduly easy on the accused. “As legal concepts are undermined in the mind of the public, it filters through the system,” the criminal-defense attorney Scott Greenfield observes. “Won’t that be convenient for the AGs?”Anthony Gray, the author of Presumption of Innocence in Peril: A Comparative Critical Perspective, concurred that the position articulated by the attorneys general is noteworthy. As he put it to me:

I accept that the proceedings may not be criminal in nature, in terms of the consequences. However, even in civil trials, it is incumbent upon the person alleging wrongdoing to prove the truth of their allegations, on the balance of probabilities/preponderance of the evidence standard. Thus, in my view it is entirely appropriate to base any investigation of alleged wrongdoing with an open mind, but with a view that the one alleging wrongdoing must prove the truth of their allegations. In other words, the presumption of non-responsibility is justified, in my view. Anything else is, in my view, dangerous.

James Whitman’s Origins of Reasonable Doubt is an excellent reference, though he was referring to the criminal context. However, he emphasised the long tradition that, when in doubt, the legal system would ‘do nothing’. It would assume all had acted lawfully, until proven otherwise. This seems the safest way.

It does mean that sometimes those who have committed wrongdoing are not brought to justice for what they have done, because the victim/survivor has insufficient evidence. This is very difficult for the victim and their family/friends/supporters. However, the legal system wrestled with this a long time ago. Knowing this was possible, it found the greater evil in an innocent person being unjustly condemned. Nothing I have seen changes the dynamics of this reckoning from long ago in our legal system, in my view.

Obviously the consequences for a person falsely accused in the situation below would not be criminal in nature, but might include being excluded from their studies/social opprobrium etc., which is very serious.

I forwarded that critique to the respective offices of the attorneys general. Some responded. A spokesperson for the Illinois attorney general’s office replied:

The multi-state comment is consistent with prior Department of Education guidance, and recommends that the preponderance of evidence standard be used.

In this context we are not clear on what additional guidance the “presumption” is meant to offer to schools, and some commentators have noted that its use is confusing in a civil context. Therefore, our comments conclude that the Dept. of Education’s rules should not mandate that schools include a presumption regarding responsibility in their grievance procedure. Given the lack of clarity about how this is meant to function, we felt this was the most prudent response.

At a time when “Believe accusers” is explicit dogma among activists in academia, the meaning of the guidance to presume innocence is hardly obscure. The rule would demand refraining from punishment unless and until a burden of proof is met. (What’s more, the Supreme Court has ruled that the presumption of innocence means something more than merely recognizing the burden of proof.)

A spokesperson for Pennsylvania’s attorney general wrote:

On the issue raised in the attorneys generals’ comments regarding the presumption of non-responsibility, it is critically important to note that this presumption is a higher standard reserved for criminal cases (i.e., innocent until proven guilty.) The government must overcome this burden to get a criminal conviction.

But in non-criminal case, like Title IX grievance hearings, the parties must approach the case on an equal playing field. The respondent (the accused) is not presumed responsible and the complainant (the alleged victim) is not presumed to be telling the truth. The 19 Attorneys General who signed the comments are not suggesting any lower standard for Title IX grievance hearings.

Rather, they are endorsing the standard widely used in all non-criminal proceedings: one that favors neither complainants nor respondents. Both parties should start any such grievance proceeding on a neutral and equal footing.

In fact, the parties in noncriminal cases in Pennsylvania and elsewhere do not approach cases “on an equal playing field.” Plaintiffs must meet a “preponderance of the evidence” burden of proof. Put another way, if the evidence is a toss-up, or 50-50, the respondent wins. The respondent is favored.

California Attorney General Xavier Becerra replied, through a spokesperson:

Title IX requires equal treatment for all students, period. Investigations in the name of equality must not be conducted based on presumptions of lies or innocence, but with an open mind and an impartial, comprehensive look at any situation in focus. The proposed Trump Administration rule politicizes this process and rolls back progress made to keep our students safe.

In criminal matters, in which a presumption of innocence rules, is the state “presumed to be lying”? Are comprehensive, impartial investigations impossible? Becerra has never expressed either of those beliefs.

When I ran these responses by Greenfield, the criminal-defense attorney, he said, “Much as people fetishize this ‘equal standing’ myth, one side is an accuser and the other an accused… They’re spewing rhetorical gibberish, as if the burden of proof being on the accuser, as it invariably must be, has no connection to the presumption of innocence. If the burden of proof isn’t met, can the accused be guilty anyway? If not, then it’s because the presumption of innocence applies.”

If the attorneys general succeed in persuading the Department of Education to strip the presumption of innocence from the due-process rights of accused college students, they will be undermining a bedrock of Western justice. And the consequences for accused persons are unlikely to stay confined to college campuses.

CONOR FRIEDERSDORF is a California-based staff writer at The Atlantic,where he focuses on politics and national affairs. He is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

Criminal justice reform myths about racism and sexism

Self-styled criminal justice reformers peddle false claims that racism is prevalent in every aspect of the criminal justice system, and that it is biased against women. The reality is that it is heavily biased in favor of women, not against them: There is a massive, statistically significant gender bias in favor of female defendants compared to similarly-situated male defendants. And while there are certainly instances of discrimination against black people in areas like traffic stops, studies that allege statistically significant racial bias in criminal sentencing typically contain obvious flaws that raise questions not just about their methodology, but the good faith of their authors. Such studies seem designed to reach a pre-determined conclusion, in ignoring relevant variables (such as prior convictions), or treating offenses of very different severity as if they were similar offenses.

I say this as someone who has read innumerable studies about the role of race and gender in the criminal justice system, and has the expertise to assess such studies. I took graduate and undergraduate level statistics courses at the University of Virginia before attending Harvard Law School. And unlike many liberal-arts majors who write about “criminal justice reform,” but don’t understand what statistics actually mean, I am comfortable with math and statistics: I earned A’s in college classes in statistics, econometrics, calculus, and differential equations. I also worked briefly for the Bureau of Labor Statistics.

Women have a massive advantage in the criminal justice system. As the University of Michigan noted in November 2012, “If you’re a criminal defendant, it may help a lot to be a woman…Prof. [Sonja] Starr’s recent paper, ‘Estimating Gender Disparities in Federal Criminal Cases,’ looks closely at a large dataset of federal cases, and reveals some significant findings. After controlling for the arrest offense, criminal history, and other prior characteristics, ‘men receive 63% longer sentences on average than women do,’ and ‘[w]omen are twice as likely to avoid incarceration if convicted.’” (See Sonja B. Starr, “Estimating Gender Disparities in Federal Criminal Cases,” 17 American Law & Econ. Rev. 127 (2015)).

Women receive far shorter sentences than similarly-situated men in the criminal justice system, especially for crimes committed against family members. For example, the federal Bureau of Justice Statistics noted in 1995, that the “average prison sentence for unprovoked wife defendants [who kill their husbands without provocation] was 7 years, or 10 years shorter than the average 17 years for unprovoked husband defendants.” (See Patrick A. Langan, Ph.D, “Spouse Murder Defendants in Large Urban Counties,” Bureau of Justice Statistics, Sept. 1995, at pg. 3). For links to additional research showing a gender bias in favor of women, and a potential psychological explanation for some of that bias, see this link.

Yet, newspapers and TV almost never mention these studies showing gender bias against males. Instead, they constantly tout false claims that racial disparities in the criminal justice system are all due to racism, rather than the higher black crime rate. The New York Times, for example, glowingly featured on the front page of its web site the claim by Dr. Ibrahim X. Kendi that “when I see racial disparities, I see racism.” It did so even the claim that racism causes all racial disparities is manifestly contrary to reality. Federal courts have recognized that higher black rates of being arrested, convicted, or suspended from school can simply reflect a higher black crime or misbehavior rate. As the Fourth Circuit Court of Appeals put it,  a “disparity” in the school suspension rate does not “constitute discrimination.” (See Belk v. Charlotte Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001)).

Similarly, the U.S. Supreme Court rejected a bias claim based on the higher black arrest rate in 1996, noting in its 8-to-1 ruling that there is no legal “presumption that people of all races commit all types of crimes” at the same rate. Such a presumption is “contradicted by” real world data, it observed. For example, “more than 90% of” convicted cocaine traffickers “were black” in 1994, while “93.4% of convicted LSD dealers were white.” (See United States v. Armstrong, 517 U.S. 456 (1996)). Neither of these percentages tracks the percentages of whites and blacks in the general population, and racial bias obviously did not cause the disproportionately high arrest rate of whites for LSD trafficking, given the fact that cops themselves were mostly white. Thus, racial disproportionality obviously reflects differential crime rates

It is simply not true that racism is everywhere in the criminal justice system. or even that all state criminal justice systems manifest racism to any statistically significant extent in sentencing. The RAND Corporation statistical expert Dr. Stephen P. Klein, a center-left researcher who exposed shenanigans by a Republican education secretary, looked carefully at California’s state criminal justice system, and, controlling for relevant variables, found that criminal sentencing in California was racially fair and non-discriminatory, overall, and that blacks and whites in California who are similarly-situated got very similar sentences. (See Stephen P. Klein, et al., “Race and Imprisonment Decisions in California,” 247 Science 812 (1990)).

Similarly, a 1991 RAND Corporation study of adult robbery and burglary defendants in 14 large U.S. cities found that a defendant’s race or ethnic group bore almost no relation to conviction rates, sentencing severity, or other key measures. In 1994, federal government statistician Patrick A. Langan analyzed data on 42,500 defendants in the nation’s 75 largest counties and found “no evidence that, in the places where blacks in the United States have most of their contacts with the justice system, that system treats them more harshly than whites.” As he noted, “No Racism in the Justice System,” “Many studies have been conducted that show no bias in the arrest, prosecution, adjudication, and sentencing of blacks,” while “other studies show possible evidence of bias.” 

Similarly, the fact that African-Americans are convicted and incarcerated at a higher rate than whites is primarily due to the higher black crime rate, and victim reporting of such crimes when they occur, not police racism. Crime is heavily black-on-black, and black victims of violence crimes disproportionately identify their assailant as black. As the Bureau of Justice Statistics explains, most crimes are committed mostly between members of the same racial group, and this is true for “rape or sexual assault,” “simple assault,” “aggravated assault,” and indeed, “all types of violent crime except robbery,” which is disproportionately committed by blacks against non-blacks. (See Race and Hispanic Origin of Victims and Offenders, 2012-2015)Similarly, PolitiFact noted that between 2010 and 2013, “92 percent of blacks who were murdered were killed by other blacks.”

Higher black arrest rates are due to victims (disproportionately black) identifying their assailant as black. As City Journal notes, “The victims of violent crime in New York City identify their assailants as black 62 percent of the time. Blacks, in other words, are committing a disproportionate amount of violent crime compared to their representation in the population — and that’s according to the victims themselves.” No one has ever explained why black victims would fabricate crimes by blacks, rather than whites. For example, 43.7% of all rapists in state prisons were black, according to a 1997 report by the Bureau of Justice Statistics, even though blacks are only 13% of the general population. [See Lawrence A. Greenfeld, Statistician, Bureau of Justice Statistics, Sex Offenses and Offenders (Feb. 1997) (NCJ-163392)]. As a lawyer noted in 2017, “The people they raped were disproportionately other black people who reported the offense, eliminating racial bias as a factor in reporting.”

Trying to eliminate this racial “disparity,” as Dr. Kendi seeks to do, could lead to unconstitutional racial quotas. Demanding equalization of punishment rates is an unconstitutional racial quota. For example, a federal appeals court unanimously struck down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” As the court noted, this simply ignored students’ actual conduct, and the fact that “important disciplinary criteria (such as disrupting classes) are unavoidably judgmental and hence ‘subjective.’” As the court explained, “Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements. And they incidentally are inconsistent with” the requirement “that discipline be administered without regard to race or ethnicity.” (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).

Higher black arrest and incarceration rates are falsely depicted as the “New Jim Crow,” by people who seek to reduce sentences for violent crimes. That gets history exactly backwards. Short sentences for crimes committed by blacks against blacks were the norm under Jim Crow, and reformers sought to end that.  A young black lawyer in Missouri, Theodore McMillian, successfully fought to end the evil local practice of letting blacks who kill other blacks serve just a year in jail. He was a civil-rights trailblazer, later the first African American to serve on the Missouri Court of Appeals, and the first African American to serve as a United States Circuit Judge on the Eighth Circuit. Reducing sentences for violent crimes committed by blacks (which are disproportionately committed against other blacks) is a classic example of the “soft bigotry of low expectations.”

Watering down punishment disproportionately harms innocent African-Americans, because so much crime and violence are black-on-black. After suspensions were curbed in a large urban school system, the Manhattan Institute’s Max Eden found that “schools where more than 90% of students were minorities experienced the worst” effects on school climate and safety. Indeed, the harm from curbing suspensions had “a disparate impact by race and socioeconomic status.” Max Eden noted in the New York Post that another “study by a University of Georgia professor found that efforts to decrease the racial-suspension gap actually increase the racial achievement gap.” Joshua Kinsler found that “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

As noted above, I have read many studies about the role of racial bias in the criminal justice system. I did so with an open mind; indeed, I was eager to find evidence of such bias, if it existed.

Why did I begin doing so? I was representing a black student being sued under the Violence Against Women Act, which was passed based partly on the (false) premise that the criminal justice system discriminates against women. I wanted to find evidence that other groups, not just women, were being discriminated against, so that if the courts let the federal government federalize violence against women, it would set a precedent that the federal government could federalize violence against a vast array of other groups, such as racial minorities.

But I couldn’t find the proof of systemic racism I was seeking, because it didn’t exist. What I found was that many studies rejected claims of systemic racism, while others, which purported to find such racism, had serious flaws, such as omitting, or failing to properly take into account, major variables, which would prevent them from even being admissible evidence of discrimination under the Supreme Court’s decision in Bazemore v. Friday, 478 U.S. 385 (1986) and court rulings like Smith v. VCU, 84 F.3d 672 (4th Cir. 1996) and People Who Care v. Rockford Board of Education, 111 F.3d 528, 537 (7th Cir. 1997) (rejecting racial achievement gap study that accounted for being poor but not degree of poverty)).

(My failure to find such evidence of systemic racism was not due to a lack of skill as a researcher. Indeed, the Fourth Circuit Court of Appeals relied on my careful research in striking down Subtitle II-C of the Violence Against Women Act. I brought to the court’s attention previously-obscure legislative history behind the Fourteenth Amendment, such as statements by members of the Congress that passed it. I did so by getting my boss, the veteran constitutional lawyer Michael Rosman, to put the results of my research into the defendant’s court briefs. The appeals court cited the results of that research in finding that Congress’s power under Section 5 of the Fourteenth Amendment did not give it the power to regulate private conduct, even though this finding was contrary to dictum from the late 20th century Supreme Court. The Supreme Court then upheld the court’s ruling striking down that provision of VAWA, in a close 5-to-4 ruling. That ruling was also one of only two Supreme Court decisions in over 60 years to strike down a statute passed by Congress as exceeding Congress’s power under the Commerce Clause. See United States v. Morrison, 529 U.S. 598 (2000) (affirming the Fourth Circuit’s decision in Brzonkala v. VPI, 169 F.3d 820 (4th Cir. 1999)).

Some racism in the criminal justice system does indeed exist, even if it does not pervade the justice system as a whole. Conservative African-Americans like Jason Riley of the Manhattan Institute, and Senator Tim Scott (R-SC), describe repeated unnecessary traffic stops by cops that a white person would less likely have been subjected toRecent research indicates that the bar for searching black motorists is sometimes lower than for white motorists, and statistically-significant levels of racial bias have been detected in police stops. Cops seem to be using people’s race as a proxy for whether they may be up to no good. I hope that such discriminatory practices will someday end.

But such practices shed little light on other areas like criminal sentencing. People are much more likely to use race as a proxy in low-stakes, rapid decisionmaking based on hunches, such as police stops or stop-and-frisk searches (where a cop may know little about the person being searched other than their race), than in more serious, individualized decisions like criminal sentencing (which requires much more evidence, leaving fewer gaps to be filled by hunches, such as subconscious racial bias, and allows more time for careful thinking before action).

Arrests are also less likely to be influenced by race, because they legally cannot be based on just a vague hunch, and commonly occur after a victim identifies the specific perpetrator (leaving no room for the use of race as a proxy). Arrests and convictions are generally legitimate, and not tainted by racism.

Bias simply does not operate the same way in low-stakes, impersonal situations (where superficial characteristics are often used as a proxy) as in high-stakes, more individualized decisionmaking, where race or other superficial characteristics are much less likely to be used as a proxy. For example, a person who is biased against people who have visible tattoos may avoid sitting next to strangers wearing tattoos on the bus, but probably won’t refuse to hire someone solely because they have a tattoo, if their resume also shows that they have all the needed qualifications to fill a long-vacant position.


Campus Sexual Assault: Suggested Language for Addressing Retaliation Claims


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

Comment submitted to the Department of Education by Stop Abusive and Violent Environments (SAVE)

A number of comments in response to this proposed regulation have suggested adding a provision dealing with retaliation, even though the U.S. Supreme Court has already created protections for victims of retaliation in its decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).

If the Education Department does address retaliation in this regulation, it should include well-established limits on retaliation claims that exist even under statutes that have very broad bans on retaliation, such as Title VII of the Civil Rights Act.

For example, it should make clear that a complaint is not protected against retaliation if it is not “reasonable” and made in “good faith.” The Supreme Court ruled unanimously that at a minimum, unreasonable complaints are not protected, in Clark County School District v. Breeden, 532 U.S. 268, 270 (2001). The Court ruled that because no reasonable person would have thought the conduct complained of in that case was illegal sexual harassment, it was not protected against retaliation. The court left open the possibility that conduct must actually be unlawful before a complaint about it is protected, but decided the case based on the fact that, at a minimum, the complaint at least needed to be reasonable and in good faith in asserting unlawful discrimination, and concluded that the complaint was not reasonable in the case before it, because the complainant could not reasonably have believed that the conduct she complained of amounted to illegal sexual harassment.[1]

Title IX’s language does not even mention retaliation, and as a result, retaliation against a complainant is only banned by Title IX if the complaint is about actual discrimination, not just what is perceived (reasonably or unreasonably) to be discrimination. That is because Title IX lacks a separate provision banning retaliation, and thus logically bans retaliation only when the retaliation itself is discriminatory, in having “perpetuated” actual discrimination, as opposed to perceived discrimination.[2]

Even if a reasonable, good faith belief did suffice to protect a complaint of discrimination against retaliation, that protection should not protect people who lie about sexual harassment or assault. Lying is not protected against retaliation even under the broad, specific statutory provision against workplace retaliation contained in Title VII. Federal appeals court rulings have repeatedly made that clear.[3]

Restrictions on bad-faith and unreasonable retaliation claims are needed to protect the free-speech rights of accused people, and their ability to publicly defend themselves against baseless charges. Being subjected to a lengthy investigation based on discrimination or harassment charges can chill the free speech of the target in ways that violates freedom of speech.[4]

Indeed, such charges can themselves be harassment, especially when they are unreasonable or in bad faith. For example, Professor Laura Kipnis was accused of retaliation merely because she defended herself on twitter against charges that she had committed sexual harassment against students on her Illinois campus merely by writing an essay on “sexual paranoia” in the Chronicle of Higher Education, which is published in Washington, hundreds of miles away from her college.[5]

Professor Kipnis was first accused of sexual harassment over her essay in Chronicle of Higher Education, even though any sensible person would realize it was neither severe nor pervasive enough to affect the complainants’ access to an education or create a hostile environment for them.[6]

Then, she was accused of retaliation for defending herself on twitter, even though her tweet likewise had no effect on the complainants’ access to an education, nor did it cause them any tangible harm.

In short, retaliation charges were used to harass Professor Kipnis and retaliate against her for her own academic expression.

Expansive interpretations of retaliation like those employed against Professor Kipnis unacceptably chill speech and academic debate. Retaliation provisions should not be interpreted in ways that create free-speech or free-association problems.[7]

Even a retaliatory motive does not divest otherwise protected speech or petitioning activity of its protection.[8]

So, if the Education Department does add a provision banning “retaliation” in its final regulation, it should incorporate limits on what retaliation is, to protect free speech, and respect longstanding limits on the concept of “retaliation.”

For example, the retaliation provision could read:

“No recipient shall retaliate against any student or employee who complains of discrimination made unlawful by Title IX. A complaint is not protected if it is not in good faith. Nor is it protected if the complaint is not based on a reasonable belief that a Title IX violation has occurred. Conduct in response to a complaint rises to the level of retaliation only when: (a) the recipient terminates, suspends, expels, or demotes the complainant, or reduces the complainant’s pay, because of the complaint; or (b) an employee of the recipient, because of the complaint, denies the complainant an aid or service of the recipient, or subjects the complainant to conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person access to the recipient’s education program or activity, or amounts to constructive discharge.”

[1] See Id. at 270.

[2] See Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (Title IX does not mention retaliation, but it is illegal to engage in retaliation against those who oppose discrimination because when that occurs, it has “perpetuated” such discrimination, and thus itself involves “intentional discrimination”).

[3] See, e.g., Vasconcelos v. Meese, 907 F.2d 11 (9th Cir. 1990) (lie about sexual harassment was not protected against retaliation); EEOC v. Total System Services, 221 F.3d 1171 (11th Cir. 2000) (complaint about sexual harassment that employer concluded was a lie was not protected against retaliation).

[4] See White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (eight-month investigation of speakers after they were accused of civil-rights violations over their speech violated the First Amendment, even though their speech allegedly violated the Fair Housing Act by delaying the provision of housing to minorities).

[5] See, e.g., Jessica Gavora, “How Title IX became a political weapon,” Wall Street Journal, June 8, 2015, at A13; Hans Bader, “A Never-Ending Title IX Investigation,” CNS News, Sept. 25, 2017 (available on the Internet).

[6] See DeAngelis v. El Paso Municipal Police Officer’s Association, 51 F.3d 591 (5th Cir. 1995) (several sexist articles in an employee newsletter were not severe or pervasive enough for harassment liability).

[7] See Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (rejecting harassment victim’s retaliation claim based on workplace tensions following her complaint, and citing freedom of association); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U. S. 568, 574-575 (1988) (rejecting agency’s expansive interpretation of statute because it would raise possible First Amendment problems); Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997) (state law’s broad retaliation ban could not be applied to mayor’s criticism of harassment charge against him, to newspaper, because retaliation bans are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech”).

[8] See BE&K Construction Co v. NLRB, 536 U.S. 516 (2002) (First Amendment freedom of petition protected employer’s non-baseless lawsuit against complainant even if it had a retaliatory motive).


States Take the Lead in Making Campus Due Process the Law of the Land

Contact: Rebecca Stewart

Telephone: 513-479-3335



States Take the Lead in Making Campus Due Process the Law of the Land

WASHINGTON / February 19, 2019 – In response to growing public concern over the abuses of campus “Kangaroo Courts,” a growing number of states are working to establish policies designed to assure due process protections for both complainants of sexual assault and accused students.

Thus far in 2019, bills designed to promote campus due process have been introduced in four states:

  1. Missouri: SB 259 and HB 573 would implement a process for due process proceedings for Title IX complaints at institutions of higher education (1).
  2. South Carolina: HB 3303, the Disciplinary Due Process Act, would require notice, review of evidence, 20-day notice prior to the hearing, and notarization of written statements (2).
  3. Virginia: HB 1820, which applies to sexual violence cases, would require fair and impartial investigations, access to evidence, prompt and equitable hearing and timely notice; and permits representation by active counsel (3). HB 1831, which applies to proceedings not involving sexual violence, would require due process rights, permit active counsel, and allow for Alternate Dispute Resolution (4).
  4. West Virginia: SB 479 would require elements of due process, and create a subsidized program for attorney advisors (5).

In California, a working group appointed by former governor Jerry Brown issued recommendations regarding the need for written notice, investigator independence, role of “trauma-informed” investigations, hearings, right to counsel, and restorative justice (6).

Five states have previously enacted campus due process legislation: Arkansas, California, Maryland, North Carolina, and North Dakota (7). In addition, appellate judges have rendered decisions that require due process protections on campus in the following states: Connecticut, Kentucky, Louisiana, Maine, Massachusetts, Michigan, New Hampshire, New York, Ohio, Rhode Island, Tennessee, Vermont, and Washington (8).

At the federal level, the Department of Education has issued proposed Title IX regulations aiming to assure due process on campus (9). The Comment period for these regulations concluded this past week.

As a result of the combined effect of state legislation, appellate court decisions, and proposed federal regulations, campus due process is now becoming the law of the land.



California Task Force Issues Recommendations on Campus Due Process


Members of the Post SB 169 Working Group:
Wendy Brown, Class of 1936 First Chair, Political Science, UC Berkeley
Justice Carlos R. Moreno (Ret.)
Lara Stemple, Assistant Dean, UCLA School of Law

November 14, 2018

The following represents the consensus reached by the working group appointed by Gov. Jerry
Brown following his veto of SB 169. It makes recommendations concerning how best to address
allegations of student sexual misconduct on college and university campuses in California.
To inform our analysis, we reviewed current state law, current and prior federal guidance,
recommendations made by the American Bar Association, and published commentary by legal
scholars and others.

These recommendations specifically pertain to sexual misconduct allegations between student
parties. We note that many of the due process protections mentioned below would also be
relevant when allegations include staff or faculty parties, but such an expansion of these
recommendations would require the additional consideration of numerous factors.

Type of conduct
Policies should focus on sexual misconduct, which includes both “sexual assault” and “sexual

Standard of proof
Assuming that all other requirements for fairness and due process are met, campuses may use
a preponderance of the evidence standard when adjudicating sexual misconduct allegations.2
Preponderance of the evidence means that the conclusion is supported by evidence that is
persuasive, relevant, and substantial (we reject the trope that preponderance can mean 50
percent likely to have occurred “plus a feather”).3 Moreover, this standard is adequate only
when procedures are transparent and fair, as outlined in more detail below.

Confidentiality in process
While the identities of the parties directly involved (complainant, respondent, and witnesses)
must be disclosed to one another to ensure basic fairness,4 no party’s identity should be
revealed to staff/faculty not involved in the process, the wider student body, or to the public by
any of the offices or officials involved with the process. 5 Some state and federal laws concerned
with protection of confidentiality in the context of freedom of information may apply.6

Investigator independence
The “single-investigator model,” lacking separation between investigator and adjudicator(s),
rarely meets due process requirements. The investigator may or may not be the campus Title IX
Officer. However, the investigation and adjudication must feature distinct persons and
processes.7 We note that some schools have developed robust evidentiary hearing procedures
that may have sufficient due process protections.8
Investigator obligation
The Title IX Officer, or delegated investigator, must fully and impartially investigate all sides in a
complaint.9 During the investigation, the Title IX Office must strive to be impartial and must not
serve as an advocate on behalf of one party. 10 The Title IX Office should provide both
complainants and respondents with information about other campus resources where support
may be available, including but not limited to confidential counseling.11

Process: report, finding and outcome
If both parties agree that the facts in the report are correct (including a balanced notation of
facts in dispute, if any) 12 and accept the investigator’s finding that misconduct did or did not
occur, then a sanction, if warranted,13 may be issued at this point, preferably by an office other
than the Title IX Office. 14 If the sanction is accepted by both parties, the case is concluded. If the
facts, finding of responsibility, or the sanction is disputed, a hearing may be requested by either
party. 15

Status of the investigator’s report in the hearing
If facts in the report are under dispute, the report, while available for consideration during the
hearing, should not be given presumptive weight. If the facts in the report are not under
dispute, the investigator’s report may stand, and the hearing need not repeat the process of
learning the facts from the parties or witnesses.16

Live hearings
The live hearing must allow parties to provide and hear testimony in real time. However, in
circumstances in which complainants do not wish to interact with respondents directly,
campuses must make reasonable accommodations such that parties can avoid direct face-toface interaction while participating in the live hearing. 17 In such circumstances the use of
accessible video technology or other devices should be employed to assist the parties and factfinders in assessing witness credibility.18

Direct questioning and cross-examination
In a live hearing, there should be no direct questioning of any one party by another party.19
However, a party, or a party’s intermediary, is entitled to question the other party by submitting questions to the adjudicator, who shall have discretion to determine the appropriateness and relevance of any question.20

Right to counsel
Both parties should have the right to an advisor of their choice, including an attorney.21 Schools
should not allow advisors to directly intervene in meetings or proceedings, but the advisor
should be able to communicate questions and concerns to the party he/she represents in
writing or through private consultation during the proceedings. Both parties should also have
the right to bring a non-participating support person (e.g., a friend or a counselor) to

Discussion of the complainant’s sexual history
The presentation of evidence about either party’s sexual history is generally prohibited. Sexual
histories concerning outside parties are wholly irrelevant and potentially prejudicial. Evidence
referencing the parties’ sexual history with one another is prohibited unless it provides material
evidence on a disputed issue of relevance to the misconduct charge or defense against it.
Further, investigators and adjudicators must recognize that the mere fact of a current or
previous consensual dating or sexual relationship between the two parties does not itself imply
consent or preclude a finding of sexual misconduct. 23

Trauma-informed responses by investigators and adjudicators

“Trauma-informed” approaches have different meanings in different contexts.24 Traumainformed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a trauma-informed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to
evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of
complainants in a manner that is incompatible with due process protections for the
respondent. Investigators and adjudicators should consider and balance noteworthy
inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and
memory that are well grounded in current scientific findings.

Informing parties of allegations, case status, evidence gathered, and outcome
Schools should provide respondents with prompt, detailed, written notice of the allegations
against them.25 The respondent and the complainant should have equal access to information26
and should be given the opportunity to respond at designated intervals. 27

Once an allegation has been made, the school should prepare an investigation report.28 Once
prepared, the school should give notice to both parties contemporaneously of the availability of
the report.29 The report must contain a list of the evidence gathered during the course of the
investigation.30 Both parties must have a reasonable opportunity to review the report and
respond, in a statement, to any perceived errors of fact or interpretation in the report prior to a
finding of responsibility. 31

Final appeal process
Both parties have the right to appeal the outcome.32 No live hearing is required for the appeal.
A majority of an impartial, three-member panel (at a minimum) must decide the appeal.
Grounds for appeal should be limited to the following:
 New information not known or available at the time of the investigation has become
known or available
 Procedural error materially affected the findings of fact (for example, improper
exclusion or inclusion of evidence)
 The sanction imposed is disproportionate to the findings in the case (that is, too lenient
or too severe)
 The conduct as found by the decision-maker does not violate school policy
 Evidence of biased decision-making
Interim measures

Prior to findings from an investigation or determination through adjudication, interim
restrictive measures concerning housing and campus access may be implemented by the Title
IX Office to protect the interests of the parties. 34 Efforts should be made to keep these
measures reasonable and as minimally disruptive for both parties as possible. Upon a finding of
non-responsibility on the part of the respondent, interim measures and restrictions must be
lifted immediately. Minimal no-contact orders (no socializing, talking, texting, etc.) may remain
in place.

Mandatory reporting to Title IX Office
Many schools have instituted “responsible employee” reporting requirements for faculty
and/or staff. 35 We wish to note the drawbacks to designating faculty as such, including the
disempowerment of victims to decide for themselves whether to report to the Title IX Office. In
addition, it can negate faculty members’ ability to openly counsel and listen to students and
colleagues, free from an obligation to act against the victim’s wishes. Even sensitive class
discussions during which students may disclose past victimization can trigger this reporting
obligation, which runs counter to the free and open exchange of ideas in the classroom.

Anonymous reporting
Under California SB 967, schools are required to implement “procedures for confidential
reporting by victims and third parties.” Accepting such reports may be helpful for identifying
patterns and understanding risks that exist for the campus. 36 However, identities must be
disclosed upon the beginning of an investigation that could result in sanctions against the

Data collection beyond Title IX recordkeeping

The reports made to Title IX offices reflect only a subset of sexual misconduct incidents on
campus. The majority of incidents go unreported. Therefore, campuses should support and
undertake qualitative and quantitative research to understand the nature and prevalence of
sexual victimization on campus and how to prevent it. Columbia University, UC Berkeley, and
others have begun such undertakings, and campuses should be encouraged to follow suit.

Collecting demographic data from parties
Campuses should collect anonymous data on the characteristics of parties to identify patterns
and systemic problems related to sexual victimization.38 An optional, confidential exit survey
about the parties’ demographic characteristics would avoid posing questions that might seem
intrusive or irrelevant if asked during initial intake or investigative processes.
Such data should be used to analyze whether use of the Title IX process suggests bias against
complainants or respondents in relation to race, sex, sexual orientation, gender identity,
disability, nationality, or other status. Where relevant, schools may wish to also track parties’
involvement in athletics, membership in the Greek system, whether the parties are
international students, and other factors in order to shed light on the problem.

Alternative models of conflict resolution: voluntary mediation versus restorative justice
Voluntary mediation is not recommended as an alternative model of conflict resolution in cases
of sexual misconduct.39 However, restorative justice practices may be appropriate as a
response to a finding of sexual misconduct, if all parties agree to them. If restorative justice
practices are recommended or requested, parties should be informed about them, how they
operate, and what each party’s role will be. Schools may limit the option of restorative justice
approaches in cases of severe abuse in order to ensure campus-wide safety.

A public health approach to prevention
While fairness in reporting and adjudicatory processes are essential to all parties involved,
these processes take place only after an incident has been reported. We wish to emphasize that
prevention efforts, if meaningfully executed, have the potential to reduce the number of
incidents occurring in the first place. A comprehensive public health approach, which seeks to
inform populations and ensure that community conditions are conducive to safety and wellbeing, seems particularly apt for addressing many forms of sexual misconduct, and should serve as a vital counterpart to punitive approaches to the problem. Moreover, life skills concerning consent, communication, and boundaries are particularly important for young, newly
independent students to learn.


Ruling affirming the rights of students accused of sexual misconduct roils California colleges

Pedestrians walk on the USC campus in Los Angeles. A case involving Bryce Dixon, a former USC football player accused of sexual assault triggered a ruling that’s causing California college campuses to overhaul their Title IX procedures. (Patrick T. Fallon/ For The Times)
Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.

The decision last month came in a USC case but applies to all California public and private colleges, and prompted many to immediately halt Title IX investigations while they reshape their procedures. California State University, the University of California and USC, Claremont McKenna and Occidental colleges confirmed that they have made or soon will be making changes.

They already had been bracing to do so. In November, U.S. Education Secretary Betsy DeVos proposed controversial new federal rules that would strengthen the rights of the accused in sexual misconduct cases. The rules would apply to Title IX, which bans discrimination based on sex in educational programs and activities at schools that receive federal funding.

At many campuses, investigations are conducted in small, private settings. Accused students are not allowed to directly confront their accusers but may pose questions through a Title IX investigator who meets separately with each of them.

Officials and advocates question how academic institutions will be able to handle proceedings more common to courtrooms as well as the effects of potentially harsh confrontations between students. They also wonder about how much new funding, hiring and training will be required to adapt.

“We’re looking at a potential fiasco,” said Brett Sokolow, president of the Assn. of Title IX Administrators.

The California court ruling marks the latest twist in the highly contentious arena of campus sexual assault. Many universities adopted new Title IX procedures in 2016, as directed by the Obama administration, to become more sensitive to victims — such as indirect questioning.

Those changes set off a national backlash. Students accused of sexual misconduct have filed scores of lawsuits arguing that campuses denied them fair hearings. They have won cases in states including California, Ohio, Michigan, Mississippi and New Mexico.

California campuses must immediately comply with the appellate court decision, which has sparked a wide range of reactions.

“It will protect millions of college students in California from losing their education in a process that’s arbitrary,” said Mark Hathaway, a Los Angeles attorney who has pioneered much of the litigation on behalf of accused students.

At Cal State Dominguez Hills, news that those who report sexual misconduct could soon be subject to confrontational hearings unnerved many students interviewed.

“As it is, it’s hard to report what happened to you. …” said Mariah Rubira, a senior who was interviewed as a witness in one campus sexual misconduct case and said the current process works well. “#MeToo was big. People started to take a stand. I think this change would just push people back into silence.”

Suzanne Taylor, University of California’s interim systemwide Title IX coordinator, said UC began exploring how to create a “fair and compassionate” hearing model after DeVos unveiled her proposed rules, but Taylor said the court ruling has given that effort “more urgency.” She said the process will take time, but the university expects to issue an interim policy in the next few weeks.

Under UC’s current process, questions from both accuser and accused are submitted to the Title IX investigator, who may choose not to ask some questions deemed “harassing.”

“Obviously we have to comply with the law, and we will,” Taylor said. “We’re really going to do everything we can to protect both our community and the integrity of our process.”

Cal State, meanwhile, has temporarily stopped proceedings in 75 cases that probably are eligible for hearings, said Leora Freedman, the system’s deputy general counsel. She said she did not know yet whether any closed cases would need to be reopened.

Cal State, USC and Claremont McKenna College expect to issue interim policies soon. Occidental College has made changes. Stanford already allows cross-examination in a hearing.

The case that triggered the ruling involved Bryce Dixon, a former USC football player who was accused of sexually assaulting a female student in 2014. In a Jan. 4 decision, a three-member panel in the Second Appellate District unanimously found that Dixon was denied a fair hearing. (The ruling called Dixon “John Doe,” but his attorney, Hathaway, confirmed his identity.) The appeals court reversed a trial court ruling that Dixon had violated the student code of conduct and USC did not appeal.

The court ruled that in cases where students are facing “serious discipline,” such as a suspension or expulsion, and the credibility of witnesses is key, a university must permit cross-examination of “adverse witnesses” at a hearing either in person or via such means as videoconferencing.

The person who investigates the case, the court said, cannot also decide whether the allegations are true. That model, used by USC and many other universities, the court ruled, improperly “places in one individual the overlapping and inconsistent roles of investigator, prosecutor, fact-finder, and sentencer.”

The court ruling appears to allow cross-examination through a neutral intermediary, but DeVos wants to let students or their attorneys on both sides do the questioning.

Scores of universities, including the UC and CSU systems, have voiced opposition to such direct questioning, fearing it would intimidate victims of sexual assault and dissuade them from coming forward. It’s unclear how many universities may now decide to allow it. USC has said it might. UC and CSU plan to stick with indirect questioning.

“We have no intention … of putting in place those aspects of those Title IX rules that we believe would be harmful to our community unless and until we are absolutely legally required to do so,” Taylor said of UC.

Cal State’s Freedman said private meetings with students were more effective in reaching the truth. “The subject matter of these cases are of a personal, intimate nature. It’s difficult to talk about these things,” she said.

Linda Hoos, Cal State’s systemwide Title IX coordinator, said the university plans to use videoconferencing for hearings and train hearing officers to question without inflaming the conflicts.

Sokolow, of the Assn. of Title IX Administrators, said most colleges and universities will “find themselves in over their heads” trying to comply with the court ruling. Cross-examinations in courtrooms, he said, are conducted under strict rules by trained professionals.

He said his organization has been warning California campuses to prepare for change since 2015, when a San Diego judge ruled a Title IX procedure at UC San Diego unfair.

“This was something that was eminently predictable, and now we’ve got California institutions behind the curve,” he said.

Stephanie Vasquez, 22, a student at Cal State Dominguez Hills, said she feels for campus victims of sexual assault. When she was 10, she said, an older neighbor tried to peer up her skirt. She tried to tell on him but was brushed off. The experience deeply affected her.

“I just wanted to be home all the time, I didn’t want to go to school anymore because there was a possibility I would see him,” she said, as she relaxed in the campus Women’s Resource Center.

Vasquez said interrogating victims at a contentious hearing is not the right way to try to understand what happened to them. They need more gentle handling in a space in which they feel comfortable.

Casey Caprioglio, 24, also of Cal State Dominguez Hills, sees both sides. Students facing suspensions or expulsions would understandably want hearings, she said.

But Caprioglio also knows what adversarial questioning feels like. Five years ago, she said, she had to submit to police questioning in order to get an emergency restraining order against an ex-boyfriend.

“It’s terrifying, and you feel like they’re picking apart everything you’re saying. They treat you like you have a reason to lie,” she said.

That experience kept her from reporting a sexual assault the following year, she said.

Sebastian Hasan, a 22-year-old majoring in radiology at Cal State Dominguez Hills, supported the court-ordered changes.

“As a dude, there are times where a situation can be confusing. You want to make sure it’s clear what happened between those two people,” he said. “I think a hearing would help show who’s telling the truth. … If I’m accused of something and I’m innocent, I would want to ask questions and have the opportunity to talk it out face to face.”