Month: December 2019

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Uncategorized

2019: A Banner Year for SAVE

In 2019 SAVE — a leader in the national policy movement to restore due process, stop false allegations, and protect all victims — had a banner year. As we close out this year, SAVE is putting a bow on 2019 and gearing up for the challenges and opportunities the New Year is sure to bring.

We take this opportunity to thank you for joining in our fight and inspiring us to keep moving the needle towards fairness. As we reflect back on 2019, SAVE…

…diligently focused on restoring campus due process and Title IX requirements.

  • SAVE influenced the pending Title IX regulation by submitting 3 in-depth comments during the Notice & Comment period.
  • SAVE assisted prospective students and parents to avoid schools with biased and unfair practices by publishing a list of the 25 worst colleges for due process.
  • Attorneys benefited by the publishing of a new interactive spreadsheet listing over 100 lawsuits with favorable outcomes, and also by the publication of the Special Report: Appellate Court Decisions for Allegations of Campus Sexual Misconduct, 2013-2018.
  • SAVE visited 12 states (NM, TX, CA, OR, WA, MO, MN, NY, NY, CO, CT, MA) to shape their state’s campus sexual assault laws.
  • SAVE made our presence and position known on Capitol Hill with over 150 lobbying visits in the House and Senate designed to restore due process to campus Title IX proceedings.

…. educated stakeholders on unfair victim-centered and trauma informed investigative techniques.

  • Police departments and campus security offices across our nation received letters from SAVE to discontinue their use of biased trauma-informed investigative techniques.
  • SAVE assisted defense attorneys by developing legal strategies for their interest and use.
  • SAVE gained 3,350 signatures from concerned citizens on the Change.org Petition (“Stop Sham ‘Start by Believing’ Investigations”).
  • SAVE sent two letters to Attorney General Barr to stop DOJ funding of Start By Believing investigations
  • SAVE published a new report that debunks trauma-informed methods: “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims: Are We Trading One Prejudice for Another?”

…. saw encouraging results with campuses owning up to their Title IX obligations by ending disparities in sex-specific scholarships.

  • SAVE analyzed scholarship websites of 269 colleges in all 50 states and sent 228 Demand Letters to universities.
  • Ten colleges voluntarily ended their discriminatory, female-only scholarships due to SAVE sending a Demand Letter highlighting their obligations to Title IX.
  • The Office of Civil Rights received 18 complaints from SAVE to investigate universities for alleged Title IX non-compliance.

…worked to reform the Violence Against Women Act:

  • SAVE volunteer lobbyists held over 100 meetings in the House & Senate to educate staffers on the flawed version of VAWA.
  • SAVE sponsored a well-attended DC press conference to shed a bright light on the issue.
  • SAVE distributed flyers on a weekly basis to members of Congress.
  • SAVE promoted a “Fresh Start” to the VAWA law, which has begun a movement to a restored and fairer version of VAWA.

…shaped public opinion on due process, trauma-informed investigative techniques and VAWA by appearing on talk-radio in over 160 interviews.  Media outlets, such as the LA Times, reported on the positive work SAVE is accomplishing with the Title IX Equity project.

We have a lot to be thankful for at SAVE and your continued support of our work is at the top of the list.   We foresee challenges, opportunities and victories in 2020 and beyond.  You have our commitment to continue to passionately lead the policy movement to restore due process, stop false allegations, and protect all victims.

Categories
Title IX

Students accused of sexual misconduct say Title IX isn’t working – and victims agree

Watch the CBSN Originals documentary “Speaking Frankly: Title IX” in the video player above. The full hour special premieres Sunday, November 24, at 8 p.m., 11 p.m. and 2 a.m. ET on CBSN.

Los Angeles — On a sunny August afternoon, a steady stream of phone calls poured into the small law office of Hathaway Parker. The firm specializes in representing students or faculty involved in a Title IX sexual misconduct investigation on campus. They typically represent respondents, or those who were accused of misconduct, though they have also represented complainants. The lawyers say they don’t think the process works very well for anyone involved.

“I don’t think anyone ever thought that colleges and universities would be adjudicating and holding court regarding sexual crimes in America,” says Mark Hathaway, a partner at the firm. “But that’s what it’s developed into.”

Title IX is a 1972 law that prohibits discrimination on the basis of sex in federally-funded educational institutions. Initially intended to ensure female students equal access to education as their male counterparts, it has since significantly expanded in scope.

“One of the best ways to think about Title IX is that in 1972, Congress threw a pebble into a pond [and] the ripples have continued outward for more than 40 years,” explains Brett Sokolow, a lawyer and the president of the Association of Title IX Administrators (ATIXA). “Through the 1980s, Title IX really came to be almost all about sports and equity in athletics. … In the 1990s, the courts again expanded Title IX when they were asked the question, ‘Would sexual harassment create a barrier to educational opportunities for women?’ The court said, ‘Yes.’”

The courts decided that schools have a responsibility to investigate cases of sexual misconduct, and those that aren’t in compliance risk losing federal funding. But critics say the federal government has not clearly mandated how schools should handle these cases, and guidance between administrations has been inconsistent, so educational institutions often interpret the guidelines differently.

“So in one school there may be decisions that tend to be victim-favoring, at another school there may tend to be a process that is favoring the respondent,” says Sokolow.

A former student in the California State University system who was accused of sexual misconduct claims the Title IX investigator found him responsible without providing him due process: “There was no sexual details so I wouldn’t even know what to say to that. I was completely denying it. It didn’t happen … I did everything I could, every single thing. I appealed everything. They still expelled me,” he said.

Even though sexual harassment and assault are crimes in the eyes of the law, Title IX investigations are not criminal investigations, and therefore do not abide by the same rules as those followed by a criminal court. According to 2011 guidance from the Obama Administration, only a “preponderance of evidence” is required to determine whether the accused is responsible and should be disciplined — a much lower standard than criminal courts require for a conviction. A judgment of guilt in a Title IX investigation cannot lead to an arrest or a criminal record for the accused, but it some cases it can result in expulsion from the school.

“The students have no right to an attorney. The evidence isn’t given to them until right before the hearing. Often times it’s heavily redacted. There’s unknown witnesses,” says Hathaway. “So it’s like the school prosecuting a student but the student is really left to fend for themselves and usually it doesn’t fare well for them.” Although Title IX cases are not criminal proceedings, the findings can have a significant impact on students’ futures, so an increasing number of those involved are bringing lawsuits against their schools.

According to Title IX For All, a database that tracks lawsuits filed by respondents in higher education Title IX proceedings, there are 140 active lawsuits against colleges and universities filed by students who say they were denied due process. But it’s not just the respondents who say the Title IX system is failing them.

Two female students, who were represented by Equal Rights Advocates (ERA) after filing Title IX complaints against fellow students for alleged rape, said that they found the process only compounded the trauma they suffered.

“Reporting it didn’t really help at all. It kind of made matters worse,” said one of the women, who filed a Title IX complaint in her freshman year and has since changed schools. She’s now in her senior year. “They switched the Title IX coordinator in the middle of my process. I had to restart the entire process. So that meant re-investigating everything, opening everything up. The statements that I had written before, all the times were wrong. The dates were wrong. … It seemed that nothing was being resolved, and it was kind of stagnant.”

“There’s never going to be a way to know in any individual case with complete certainty, probably, that a sexual misconduct act occurred,” said Brenda Adams, a senior attorney at ERA who represents complainants in Title IX cases. “But I think, again, the focus is not on whether or not someone was falsely accused of a crime. It’s more whether or not this particular type of school misconduct occurred. And whether or not it is interfering with the victim’s access to education.”

Lara Bazelon, a law professor at the University of California San Francisco, says Title IX investigations can be extremely complicated, and the system we have in place just isn’t helping.

“One thing I have come to believe is that both sides can be genuinely, equally convinced that their version of events is true. That one side really believes that the encounter was consensual, and the other side truly believes that it was not. And neither person is lying. And that makes these cases so incredibly difficult to litigate and also for anybody to decide,” she says.

“So that’s why I think we really need to look seriously at some kind of alternative to the way we’re doing things now, because I don’t think you’ll find anybody who is going to sit here and tell you with a straight face that what we are doing right now with Title IX on college campuses is working.”

Categories
Title IX

‘Game On!’: Acquitted of Rape, Ex-Student Sues Yale University for $110 Million

Yale University.Yale University. Photo: Shutterstock

Saifullah Khan, who has been banned from Yale University on two occasions, including on an allegation of rape, has sued the institution for $110 million.

In the midst of the #MeToo movement, the Khan case has garnered state and national attention. Protests and petitions calling for Khan to be expelled from the university erupted soon after the rape allegations, and continued even after a jury acquitted him of the charge in March 2018 and Khan sought reinstatement.

Now, Khan’s high-profile attorney Norm Pattis is looking to make political correctness in the era of #MeToo a central focus.

Khan filed a federal lawsuit Friday against the university and a dozen Yale officials seeking the $110 million in damages. Pattis said his client came up with the $110 million figure.

“Whatever is going on in college campuses today is not good,” the Pattis & Smith founder said in an interview Friday, just hours after filing the 28-page lawsuit. “Mr. Khan was acquitted by a jury, and Yale [buckled] under to the PC crowd, and threw him out. The Khan acquittal captured national attention. This is the dark side of the #MeToo movement. It’s sexual and moral hysteria. Well, game on!”

Pattis said his client had sex with his peer, but did not rape her.

“Yale realizes young people on campus experiment. They distribute condoms in the laundry room, for God’s sake,” Pattis said. “What do they expect kids are doing in the middle of the night? Yale is hypocritical, and they should come back to the 21st century.”

In the lawsuit, Pattis takes further aim at Yale, writing, “The campus is also in the thrall of various claims of identity entitlement, rendering the campus less a place of unbridled intellectual stimulation, and more a smug hothouse catering to social justice warriors intent on remaking the world in their own image.”

As of Friday afternoon, Yale had not assigned an attorney to represent it. And no one from the university’s office of public affairs and communications responded to a request for comment.

Khan, a 26-year-old Afghan, became a full-time Yale student in the fall of 2012. He was expelled soon after the allegations of rape in October 2015 by a female student became public. Khan sought readmission after his March 2018 acquittal. Yale allowed him to resume his studies as a full-time student in the fall of 2018.

But the lawsuit alleges Khan was then expelled again in October 2018. The lawsuit cites a Yale Daily News story in which Khan is alleged to have had a sexual relationship with a man and then committed physical violence because he slapped him. The Oct. 5, 2018, article, which students write, was titled “Khan and his consort.” Just days after the article appeared, Khan, the lawsuit states, was told he was suspended, effective immediately, due to an “emergency.” The lawsuit says the Yale newspaper article includes claims that “were never proven or substantiated.”

The lawsuit elaborates: “According to Dean [Marvin] Chun, the suspension ‘appears necessary for your physical and emotional safety and well-being and/or the safety and well-being of the university community.’” The lawsuit says Khan was barred from campus and prohibited from attending any classes.

With regard to what Chun said, the lawsuit states: “There is no credible evidence that permitting Mr. Khan to attend classes poses a threat of harm to himself or anyone affiliated with Yale. Indeed, there was no reason whatsoever to suspect that Mr. Khan was a danger to himself or others as a result of the allegations reported in the Yale Daily News in October 2018.”

Then, the lawsuit says, one month later in November 2018, Khan was permitted to return to campus for a hearing on the Jane Doe 2015 sexual assault allegation. But the lawsuit states that the hearing was “a mere sham,” and Khan is still not permitted at the university.

Among other things, the lawsuit says, his counsel was not afforded the right to speak. It claims Khan could “neither pose questions to witnesses, not tender objections when panel members repeatedly asked compound questions, assumed facts not in evidence, or otherwise transformed the hearing process into little more than the stillborn delivery of a predetermined outcome.”

The lawsuit cites loss of reputation, emotional distress and suffering and loss of educational opportunities.

Read more:

Suspended Yale Student Acquitted in Halloween Rape Case

Categories
Title IX

New Title IX regulations are coming. FIRE’s newest report shows why reform is desperately needed.

December 11, 2019

REPORT: 7 in 10 top universities do not expressly guarantee the presumption of innocence in campus sexual misconduct proceedings.
ZERO surveyed institutions guarantee all basic due process protections, or even those required under the Department of Education’s proposed Title IX regulations.
Almost 9 in 10 universities earned a D or an F for sexual misconduct policies; proposed regulations would raise grades to C or better.
PHILADELPHIA, Dec. 11, 2019 — Innocent until proven guilty? Not on college campuses.

Top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education.

With new Department of Education regulations on Title IX enforcement expected soon, FIRE’s report shows that colleges currently fail to provide students with even the most basic due process protections. This means that many colleges’ policies may have to be revised significantly after the regulations go into effect.

“Would you feel comfortable defending yourself without information about what you supposedly did wrong? Would you trust a jury that didn’t get a chance to see all the evidence? You shouldn’t — but college students across the country routinely face these troubling circumstances,” said FIRE’s Susan Kruth, lead author of the report. “Disciplinary procedures at top universities aren’t fundamentally fair because they don’t guarantee even the most basic safeguards against incorrect conclusions.”

“Spotlight on Due Process 2019–2020” examines policies at 53 top national universities to see how many of 10 fundamental procedural safeguards they guarantee students. These include basic protections familiar to all Americans, such as the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 49 receive an overall D or F grade for guaranteeing no more than 4 of those 10 safeguards.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 22 institutions that received an F grade for their sexual misconduct policies, 17 have been sued by accused students over the lack of fair procedure.

Less than 30% of top universities expressly guarantee the presumption of innocence in all serious non-academic misconduct cases, and less than 60% explicitly require that fact-finders — the institution’s version of a jury — be impartial. Only 28% guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear that students overwhelmingly want them to. Each element in FIRE’s report is supported by a majority of college students surveyed by YouGov for FIRE in 2018 about their views on campus due process protections:

85% of students think their accused classmates should be presumed innocent until proven guilty, but only 28% of America’s top universities explicitly guarantee students that protection.
Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students or their representatives a meaningful opportunity to cross-examine witnesses.
This landscape may shift if the proposed Department of Education regulations on Title IX — the 1972 law that prohibits sex discrimination in federally funded educational programs — are enacted. Today, 87% of institutions receive a D or F grade for their failure to protect the due process rights of students accused of sexual misconduct. Enacting only the proposed regulations would raise surveyed universities’ grades to a C or better.

“All over the country, students accused of misconduct on campus routinely face life-altering consequences without any of the procedural protections one would expect in such serious cases,” said Samantha Harris, FIRE vice president for procedural advocacy. “It looks like the Department of Education’s new regulations will ensure greater due process for students involved in certain types of cases, but universities should already be providing these important protections in all cases of serious non-academic misconduct.”

“Spotlight on Due Process 2019–2020” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org

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Uncategorized

Joe Biden Promises To Restore Obama’s Disastrous Campus Kangaroo Courts

By signaling his intention to restore unfair Title IX guidance, Biden is showing his willingness to eviscerate due process to please far-left activists.
By 
DECEMBER 12, 2019
Joe Biden has learned nothing from the Title IX due process disaster plaguing America’s campuses. The former vice president has released a plan on his website to restore the Obama administration’s infamous 2011 Dear Colleague letter, which Biden’s plan describes as outlining how to “fairly conduct Title IX proceedings.” In reality, the Dear Colleague letter introduced a monstrously unfair process that has forced hundreds of young men to sue for their rights — and reputations — in federal courts.

An accused’s rights to confront his or her accuser through cross examination and to have a neutral adjudicator have long been considered the very basics of due process. In the name of protecting women, the 2011 guidance encouraged universities to abandon these well-tested pillars in favor of a single-investigator model, in which a Title IX administrator both elicits the stories from the involved parties and rules on the outcome. The Dear Colleague letter also pushed universities into lowering the standard of proof and discouraged any kind of cross examination that might probe discrepancies in an alleged victim’s story.

“It’s particularly concerning that a presidential candidate seems oblivious to the unintended repercussions of a policy he championed. Over 500 lawsuits have been filed by accused students since the 2011 Dear Colleague letter, resulting in at least 161 court decisions in these students’ favor and over 100 pre-decision settlements,” Garrett said.

She also added that to her knowledge, Biden did not even reach out to organizations concerned about due process or any of the families of those suing their universities before pronouncing the Obama administration action an unalloyed good that should be restored.

Under Secretary Betsy DeVos, President Trump’s Department of Education withdrew the Obama-era guidance and proposed a new, fairer rule, which among other changes ensures that those accused of Title IX misconduct on campus have access to a fair adjudicator, the advice of counsel, and the ability to question (through third parties) their accusers. Now, leading Democratic candidate Biden says he will restore the madhouse that federal judges have excoriated as “enough to shock the Court’s conscience.”

Is it any wonder that in the wake of watching the Kavanaugh hearings, in which a man with an impeccable record had his reputation nationally and permanently trashed by allegations countered by all the available evidence, more American men reported they’d rather be falsely accused of murder than sexual misconduct? In that same poll, almost 60 percent of both the men and women surveyed said society presumes a man accused of sexual assault to be guilty.

While we should of course have sympathy for victims of sexual assault, the unfair process Biden blithely promises to restore has victims as well. FACE collects some of their stories, mostly anonymized to protect the young men and their families still traumatized and ashamed by their experiences with unfair campus adjudication.

It’s doubtless true that many women have negative experiences in the alcohol-fueled hookup culture prevalent on most American universities, but attempting to cram the genie back in the bottle with over-broad definitions of consent and unfair processes just creates more victims. And the kangaroo processes necessary to punish men for failing to read women’s minds in ambiguous situations infantilize women, as well as cheapen the experiences of real rape victims.

Inez Feltscher Stepman is a senior contributor at The Federalist. She is also a senior policy analyst at Independent Women’s Forum and the Thursday editor of BRIGHT, a women’s newsletter. Find her on Twitter @inezfeltscher.
Categories
Violence Against Women Act

Violence Against Women Act: Policy Needs to be Driven by Solid Facts, not Fluffy Ideology

The Violence Against Women Act is up for reauthorization this year. And like previous years, VAWA is currently caught up in a partisan cross-fire with dueling versions of the law: Sen. Dianne Feinstein’s S. 2843 and Sen. Joni Ernst’s S. 2920.

Part of the problem is that VAWA has become caught up in a broader political and ideological debate. If we want to curb domestic violence and sexual assault, we need to start with a factual understanding of the problem. These are four key facts to help resolve the current political stalemate:

1. THREE MAIN CAUSES OF PARTNER VIOLENCE

Extensive research points to three main causes of domestic violence:

  1. Substance abuse[1]
  2. Mental health problems[2]
  3. Marital separation:[3]

2. PARTNER VIOLENCE RATES HAVE FALLEN DRAMATICALLY

The federal Centers for Disease Control does an annual survey known as the National Intimate Partner and Sexual Violence Survey – NISVS. In 2011, the NISVS reported 6.5% of men and 6.3% of women had been on the receiving end of partner aggression in the previous 12 months.[4]

By 2018, these numbers had dropped by about half – 3.8% of men and 2.9% of women reported being domestic violence victims in the previous year.[5]

3. NO EVIDENCE THAT VAWA HAS CONTRIBUTED TO THESE DECLINES

Persons who have examined the trend-lines conclude that VAWA-funded programs cannot take the credit for declines in partner abuse:

  • “Between 2000 and 2010, rates of domestic violence actually fell less than the drop in the overall crime rate – at a time when VAWA was pumping hundreds of millions of dollars into the criminal system.” — Leigh Goodmark, University of Maryland Law School
  • “We have no evidence to date that VAWA has led to a decrease in the overall levels of violence against women.” — Angela Moore Parmley, Office of Justice Programs, U.S. Department of Justice

It’s not difficult to identify the reasons for VAWA’s lack of effectiveness. The language of VAWA does not say a word about addressing the causes of intimate partner violence: substance abuse, mental health problems, or marital separation.[6]

4. MEN ARE MORE LIKELY TO BE THE VICTIMS

Take a second look at the NISVS numbers shown under Number 2. above. In 2011, domestic violence was essentially an equal opportunity problem between the sexes. Then look at the numbers from the 2018 report – a 3.8% male victimization rate versus a 2.9% female victimization rate

In short, men now are 31% more likely to be victims than women.

LIKELY EFFECTS OF CURRENT VAWA BILLS ON OVER-CRIMINALIZATION

Many persons believe that VAWA has contributed to the problem of over-criminalization in America:

  1. Overly broad definitions of domestic violence
  2. Restraining orders issued without due process
  3. Exclusive reliance on mandatory arrest and mandatory prosecution policies
  4. Limited role of diversion programs

With the key facts in mind, let’s look at the two bills being considered in the Senate from the over-criminalization perspective:

Feinstein Bill, S. 2843

Good provisions:

  • Discourages use of bench warrants for complainants who refuse to cooperate (Sec. 101)
  • Adds new section on alternative criminal justice response that would encourage use of restorative justice approaches (Sec. 102)
  • Removes “pro-arrest” language (Sec. 102)

Bad provisions:

  • Expands the definition of domestic violence to include verbal, psychological, economic, and technological abuse. Does not provide a definition of verbal or psychological abuse.
  • Promotes use of “trauma-informed,” guilt-presuming investigations (Sec. 205)
  • Does not distinguish between a “victim” and a “complainant.”

Overall Assessment: The bill’s support for alternative criminal justice response is a welcome step. The most troubling aspect of S. 2843 is its expanded definitions of domestic violence. Although the language of the bill states the verbal, psychological, economic, or technological abuse definitions only apply to victim services, it is likely that such definitions will “bleed” into state-level definitions, especially for issuance of restraining orders.

Ernst Bill, S. 2920

Good provisions:

  • Discourages use of bench warrants for complainants who refuse to cooperate (Sec. 101)
  • Removes “pro-arrest” language (Sec. 102)
  • Recognizes value of addressing substance abuse and mental health problems (Sec. 501)
  • Defines due process rights of defendants in Indian courts (Sec. 804)

Bad provisions:

  • Expands definitions of elder abuse (Sec. 204)
  • Promotes use of “trauma-informed,” guilt-presuming investigations (Sec. 205)
  • Does not mention use of alternative justice approaches
  • Does not distinguish between a “victim” and a “complainant.”

Overall Assessment: Definitions are more constrained than S. 2843, but the bill’s other provisions do not satisfactorily address the problem of over-criminalization.

Citations:

[1] “Substance abuse has been found to co-occur in 40-60% of IPV incidents across studies.” https://www.asam.org/resources/publications/magazine/read/article/2014/10/06/intimate-partner-violence-and-co-occurring-substance-abuse-addiction

[2] Dutton MA: Intimate partner violence, PTSD, and adverse health outcomes. J of Interpersonal Violence, 2006.

[3] https://www.bjs.gov/content/pub/pdf/ipv9310.pdf.

[4]http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf

[5] https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf

[6] SAVE: How Effective are Domestic Violence Programs in Stopping Partner Abuse? http://www.saveservices.org/downloads/Why-DV-Programs-Fail-to-Stop-Abuse