Title IX

Away at school. How COVID-19 is affecting Title IX hearings with college campuses deserted

Away at school

Andrew Miltenberg spent his morning on the phone with a Princeton University father. His son had been accused of sexual assault—wrongly, he believed—and was the respondent in a Title IX matter on campus.

The hearing was coming up, and the father was concerned: What if the Title IX panel, made up of school faculty, didn’t believe his son? What if his side of the story wasn’t really heard? If he’s not heard, and if he gets sanctioned, what happens to med school?

It was a typical call for the Bergen County-based lawyer, whose Manhattan office handles around 75 of these cases at a time. But this isn’t a typical time, students across the state and country are off campus due to the COVID-19 health crisis, and these Title IX hearings are happening the same way as every other meeting: Zoom or conference call.

Andrew Miltenberg

Andrew Miltenberg

“For someone who is already accused, to not be able to be in person and connect with the panel, and for the panel to not be able to seize upon certain credibility markers—nonverbal cues, things we pick up speaking to someone that help us determine if someone is or isn’t telling the truth—isn’t fair,” Miltenberg said. “Credibility is so critical, because the right to openly confront your accuser is so critical, and to hear what an accuser says about you in person, and the ability to face the person making decisions is so critical.”

Miltenberg has handled hearings at colleges across New Jersey and around the country. By the end of this week, he’ll have attended 20 Zoom meetings between investigative interviews and the hearings themselves, from the University of Maine to Providence College to Virginia Polytechnic. For many of the hearings going on now, the complainant and all the complainant’s witnesses were interviewed in person before school closed, and the respondent and respondent’s witnesses are being interviewed by phone or video chat.

“Have you been on a seven or eight person Zoom call? Like any conference call, someone’s speaking, their voice gets cut off, someone else interrupts,” Miltenberg said. “It’s much harder than an in-person conversation. Right now, there’s an unlevel playing field. If it was your kid, you’d want the benefit from every possible tool and inferences we have as human beings.”

New Title IX regulations are expected to be announced any day now. The rules reportedly will raise the standard of evidence or allow schools to make that change on their own, and they may allow some type of real-time cross examination, Miltenberg said.

“The new regulations will increase the opportunity for schools to engage in an informal resolution, meaning the parties agreed between themselves as to how they’re going to deal with this going forward, as opposed to the school dictating it. Right now, if the complaint involves penetration of any sort, informal resolution isn’t available, meaning there has to be a hearing. There’s also some thought that if someone makes a complaint and wants to withdraw it, they should be allowed to withdraw it,”

Miltenberg said. “Right now, once you make a complaint, you lose the ability to stop the process, so you see situations where a couple [gets back together], where the complainant wants to stop the process, or they recant, or they say ‘wait I didn’t mean for all this to happen to them.’ But they take on a life of their own once the school gets involved.”

The new regulations will reportedly make sanctions more restorative than punitive, opting away from expulsion and toward criteria like community service and mandated therapy.

“You can turn these events into teachable moments. That’s not to say – I have two daughters, one’s in college, and there are rapes that happen. There are sexual assaults that happen. This is not to say that those should not be dealt with aggressively. Part of that is making sure they’re dealt with fairly and that the process and policy is equitable and transparent,” Miltenberg said.

Jemi Goulian Lucey

Jemi Goulian Lucey

“There’s two sides of the issue. With the separation of everyone it sort of moots the issue with everyone initially, but the fact that there are more virtual campuses, it doesn’t mean they can forever hold this in abeyance,” said Greenbaum, Rowe, Smith & Davis LLP Partner Jemi Goulian Lucey, who represents universities sued by victims of sexual violence in Title IX cases. “From the complainant’s standpoint, I think there’s some issue of finality, to have this behind them. I don’t think anybody wants this to go out for six months or a year and have to drum it all back up again. There’s a lot of interests considered here, making sure there’s a stable university environment and that on campus, whether in person or virtually, they feel safe. And there’s the rights of the complainant and respondent.”

Originally, Miltenberg said, some schools were open to holding off on Title IX hearings for a handful of weeks until COVID-19 subsided later this spring. But now, as COVID-19 campus closures could extend well beyond the current semester and Title IX offices remain open, schools like Syracuse University in New York are deciding to go forward with them.

“I think to myself, it’s a self-perpetuating job for Title IX offices. No one needs a Title IX office if you’re not having hearings. Most schools when this started six or seven years ago had one or two deans that did conduct violations. Now most schools, even smaller ones, have several dedicated in-house lawyers and in some cases a dozen in-house investigators,” Miltenberg said. “Columbia University has like 30 lawyers and 40 investigators that deal with these issues now. This has become a cottage industry. Of course, I’ve benefited from it, but I’m asking not to be [benefitting from it] right now.”

Miltenberg represented Paul Nungesser, the respondent in the widely publicized “Mattress Girl” case. Emma Sulkowicz accused Nungesser of rape in 2013, and after Nungesser was found not responsible by a Columbia University inquiry, Sulkowicz produced a work of performance art called Mattress Performance (Carry That Weight) as her senior thesis in protest of what she described as the university’s mishandling of her sexual assault complaint. The protest involved Sulkowicz carrying a mattress around on campus to represent the burden rape victims carry in day-to-day life.

As Lucey sees it, from the perspective of college and universities, to the extent that the parties agree to allow for the matter to be held in abeyance until there is a return to campus, it would appear that holding off on the hearings is the preferred course of action.

“Unless the parties don’t agree or unless there is some time-sensitive issue that must be attended to, and that the determination of the Title IX hearing [affects] that step,” Lucey said. “If the respondent is a graduating senior so there’s a need to have the matter resolved so that the determination can be made as to whether or not they can graduate, that could be a matter where the situation would have to go forward toward a hearing.”

Lucey noted that litigators such as herself are having to deal with those issues now as well, where all parties involved must agree to treat the online meeting as a live, in-person hearing.

“You make best efforts in a tough situation,” she said.

Gabrielle Saulsbery
Albany, N.Y. native Gabrielle Saulsbery is a staff writer for NJBIZ and the newest thing in New Jersey. You can contact her at g
Domestic Violence Violence Against Women Act

Open Letter to Sen. Joni Ernst Regarding Her VAWA-Coronavirus Letter

Dear Senator Ernst:

I recently donated $50 toward your re-election campaign, so I was especially disappointed that you co-signed the letter demanding that coronavirus bills provide funding for Violence Against Women Act programs:


VAWA is a biased and unproductive program that Joe Biden pushed through while specifically excluding testimony from researchers. After all, the scientific research has consistently found for over 40 years that women initiate domestic violence as often as men — — (and that children are as harmed watching mom hit dad as they are watching dad hit mom)! Senator Ernst, I am referring to thousands of scientific studies!


On the other hand, the statistics being bandied about to push this windfall to the domestic violence industry (much of whose corruption and ineffectiveness has been revealed in government audits) are not based on scientific research.


The dirty little secret of the domestic violence industry is that domestic violence within lesbian couples is as high as within heterosexual couples. But, for financial gain and because there is no man to blame, this research is not very well known. Indeed, one woman came to me for help because her female abuser was a high official in her local shelter.


This industry is exploiting the coronavirus for another windfall by cherry-picking areas where domestic violence is increasing (while omitting the greater number of jurisdictions where the level has either decreased or remained the same. By “another windfall” I am referring to their practice of piggybacking on events and conning well-intentioned agencies and corporations out of millions of dollars — for example their hoax about Super Bowl Sunday being the most dangerous day for American women, a hoax that was exposed by the Washington Post only after they had shaken down the NFL for millions of dollars.


Please, see some alternative sources of information such as: and



Fredric Hayward

Campus Due Process Sexual Harassment

Title IX Coordinators Should Embrace New Regulation to Reduce Liability Risks

2020 will be a year in which institutions of higher education (IHEs) suffer heavy financial losses. The COVID-19 shutdown is costing them many millions of dollars in lost revenues.

Significant losses due to mounting litigation are also at an all-time high. Never before have costs been higher for IHEs to defend themselves in lawsuits brought by alleged sexual assault perpetrators or victims claiming mistreatment by their institutions. IHEs must implement policies and procedures to reduce the high cost of sexual assault claims.

In 2017 United Educators (UE), which provides liability insurance to more than 1,600 schools around the country, launched its Canopy risk management program. Canopy has issued two White Papers on campus sexual assault: “The High Cost of Student-Victim Sexual Assault Claims” (1) and “Sexual Assault Claims: Perpetrator as Plaintiff” (2).

The reports document that between 2011-2015, sexual assault claims resulted in losses averaging nearly $350,000 each, with a few causing losses that exceeded $1 million. Losses in claims by accused students were driven by defense costs, which accounted for 71% of losses. Total losses due to perpetrator claims were almost $9 million, with total defense costs $6.3 million.

Lawsuits by alleged perpetrators or victims included allegations of breach of contract, Title IX violations, and negligence. Alleged types of misconduct by university personnel included the following (2):

  1. Failure to properly train staff on institutional policies
  2. Flawed reporting processes that discouraged complainants from reporting assaults
  3. Unclear policy language with insufficient written descriptions of policies and procedures
  4. Poor investigative practices with inadequate investigator training and lack of clarity about the investigator’s role
  5. Problematic adjudication practices, including poor selection of hearing panelists and inadequate training of hearing officials

Recurring patterns in the United Educators’ claims database reveal a number of needed actions to address sexual violence. Specifically, institutions should ensure that:

  • Title IX coordinators and investigators have appropriate training or experience and clarity on their roles,
  • Employees have a clear understanding of reporting obligations,
  • Sanctions are consistently and fairly applied, and
  • Campus officials respond quickly to retaliation reports.

UE also noted that alleged “Victims and perpetrators are equally entitled to know what to expect during the school’s internal process” and usually, “both parties to a campus sexual assault matter are the institution’s students and are entitled to the same procedural protections and general equitable treatment.” (3)

But instead of heeding this advice, Title IX coordinators have continued to take actions that place their universities at risk for future litigation.

In March, 2020 it was reported that over 600 lawsuits have been filed on behalf of students (and some school personnel) accused of Title IX-related offenses (4). Numerous high profile cases, such as the complaint against Baylor University (5) and Penn State University’s handling of the Jerry Sandusky case (6) have been featured in national news reports spotlighting institutions’ failure to protect victims.

Complaints alleging Title IX violations also can be opened for investigation by the U.S. Department of Education’s Office for Civil Rights (OCR), resulting in a time-consuming and expensive process for these schools. The University of Southern California (7) and Michigan State University (8) are two recent institutions that were investigated by OCR, resulting in sweeping changes or record fines due to their mishandling of sexual assault claims.

The U.S. Department of Education’s upcoming Title IX regulation will provide both a regulatory framework and procedural guidance so Title IX coordinators can provide a consistent, reliable response to an allegation of sexual assault. All of the above-listed actions from United Educator’s reports are addressed in the new regulation. Compliance with the regulation should result in fewer lawsuits against universities.

Title IX coordinators should embrace the new Title IX regulation to bring an end to the problematic policies and procedures that have resulted in significant financial losses to their institutions.


2. Canopy, “Sexual Assault Claims: Perpetrator as Plaintiff” (content no longer available on the internet)


Action Alert Campus Due Process

Release the Regs! Release the Regs!

The civil rights of K-12 students, and university students and faculty, continue to be trampled on as each day passes. It is past time for the Department of Education to publish the new Title IX regulations, because “Justice delayed is justice denied.” [1]

We need your help.

Apparently Secretary DeVos and her team are pushing to get the regulations published, but there is a difference of opinion at the White House, as to whether to publish the regulations during the COVID-19 crisis.

SAVE and other due process advocacy groups [2] say now is the best time to publish the regulations because the campuses are quiet and empty of students. The administrators have the time and capacity to put implementation plans in place before the fall semester begins.

Most importantly, students and faculty deserve the right to have fair and equitable procedures when accused of a sexual misconduct issue. This includes presumption of innocence, timely and adequate written notice, and a meaningful hearing process.

No more Kangaroo Courts! Release the Regs!

Please email the White House today at and tell them to let the Department of Education release the Title IX regulations. When students walk onto campuses in the fall, they should be taking their civil rights with them, not leaving them at home.



Title IX

Callisto Campus, tool for documenting sexual assault at colleges, discontinued

Callisto reverses decision to delete account data following user concerns



Callisto Campus, a tool available for Stanford students to document and report sexual and relationship violence, will be discontinued on June 30 and replaced with another version of the program.

Callisto is a third-party online platform that allows students to document and time stamp experiences with unwanted sexual conduct. If a student is not ready to submit a report to the University, their report is saved in the system, with the option for it to be submitted later.

“One of the unique features about Callisto was the ability to have your report be submitted to the Title IX office in the event that the perpetrator that you had listed also matched the perpetrator another survivor listed,” wrote former ASSU President Shanta Katipamula ’19 M.S. ’20 in an email to The Daily. While chair of the Undergraduate Senate, Katipamula also authored the bill proposing the three-year pilot of Callisto in 2016.

While Callisto Campus will be discontinued, this year Callisto will launch a new product that connects victims of sexual misconduct to attorneys who help them understand actions they can take, according to the Callisto website. Stanford students will have free access to this platform, but the University is still deciding whether to initiate a new partnership with Callisto, according to ASSU Co-Director of Sexual Violence Prevention Krithika Iyer ’21.

“We are investigating what a potential partnership would entail, and whether a new Stanford-Callisto partnership would be beneficial for survivors,” Iyer wrote. “We will be seeking input from the student community.”
“Callisto is transitioning some of its services over the summer and it will no longer be based on a partnership model with individual schools,” wrote Senior Associate Vice Provost for Institutional Equity and Access Lauren Schoenthaler in a statement to The Daily.

An update on the Callisto Campus website initially read that the service would be replaced with a new version of Callisto and that all account data would be deleted, quickly leading some to raise concerns.

“This would undermine the ability of the platform to identify repeat perpetrators on campus,” Iyer wrote.
Stanford Law professor Michele Dauber was one of the individuals who reached out to Callisto to share her concerns. One of her concerns was Callisto’s inability to inform users that their data would be deleted.

“Because there are no records kept of who the users are, Callisto doesn’t stay in contact with their end-users,” Dauber said. “In other words, if you were someone who had made such a report, you wouldn’t get an email from Callisto saying, ‘we’re changing our business model.’”

She spoke to the trauma that this could create for survivors who had placed their trust in the platform.

“They had trusted this entity because it was created by survivors and then found that all of their information had been deleted when they didn’t know it,” she said.

Callisto has since reversed its decision to delete the data.

“With respect to the feedback we have received from our partners and the extraordinary challenges posed by COVID-19, we are not deleting this data,” wrote interim Callisto CEO Tina Robilotto in an email to The Daily. “We will maintain the record data even after Callisto Campus is decommissioned and the new product is launched to our partner campuses.”

“While I understand that they’ve now understood the error of this decision and are no longer going to be deleting records, the initial decision to do so was poorly communicated and breached the trust survivors had placed in their system,” wrote Katipamula.

Dauber complimented Callisto’s “willingness to admit a mistake and reverse it.”

Schoenthaler said that Callisto had informed the University on Thursday morning that it no longer had plans to delete the records, calling it “great news.”

Dauber urged students to download reports they had made to Callisto to ensure they are preserved, and Iyer made a similar recommendation.

“While Callisto has committed to not deleting any records, the ASSU recommends that students download their report if they want to be absolutely sure that they retain a permanent copy,” Iyer said.

Despite Callisto Campus’s unique function, Iyer told The Daily that the platform has not been sufficiently advertised to students and that she hopes to increase awareness about it in following years.

“Data from the AAU survey indicate that only 9% of Stanford students are aware that Callisto Campus is an available resource,” she said. Iyer also reported efforts to ensure that Callisto is included in New Student Orientation information sessions next fall.

Dauber called the episode a “cautionary tale” about Silicon Valley’s tendency to rely on technology to solve problems.

“I think Callisto came from the best of intentions but also was riding that wave of easy assumptions about technical fixes for a very hard social problem,” she said. “There is no shortcut, in my opinion, to fixing the problem of campus sexual assault.”

This article has been updated to include a clarification from Iyer on the tool to be included in New Student Orientation information sessions.

Contact Esha Dhawan at edhawan ‘at’ 

Title IX

COVID-19 Must Not Delay Enactment of New Title IX Regulations

COVID-19 Must Not Delay Enactment of New Title IX Regulations
U.S. Secretary of Education Betsy DeVos (Credit: Gage Skidmore)

COVID-19 Must Not Delay Enactment of New Title IX Regulations

Sixteen months ago, the Department of Education proposed Title IX regulations that take seriously the rights of both victims and the accused in campus sexual misconduct proceedings.

Since then, the department has reviewed more than 100,000 public comments on those regulations, incorporating feedback from diverse stakeholders.

Despite this opportunity for robust public comment, opponents of these regulations have made clear from day one that they will do everything they can to ensure they are never enacted — including, recently, sending four letters asking the department to defer the rulemaking until after the COVID-19 crisis has passed.

The department must not give in to these opportunistic and disingenuous efforts to thwart regulations that would bring desperately needed balance to campus sexual misconduct adjudications.

Campus sexual misconduct proceedings have been seriously out of balance since the department issued a Title IX “Dear Colleague” letter that transformed the way universities adjudicated sexual misconduct cases.

The letter eviscerated due-process protections for accused students and kicked off an era of aggressive Title IX enforcement that led many universities to hold proceedings rigged against the accused in order to appear serious about combating sexual assault.

As soon as Secretary of Education Betsy DeVos announced in September 2017 that the department was withdrawing the 2011 Dear Colleague letter in favor of a more balanced approach to Title IX rulemaking, supporters of the previous guidance made clear that they would do everything in their power to stop the new rules.

When the department issued interim guidance, the new guidance was immediately challenged in court by a coalition of organizations — including three of the groups now calling on the department to suspend Title IX rulemaking due to COVID-19.

After the department issued its proposed Title IX regulations in November 2018, it opened a notice-and-comment period during which it received an unprecedented number of public comments.

Pennsylvania Attorney General Josh Shapiro immediately threatened legal action to block the rules’ implementation and organized a coalition of state attorneys general who wrote to the department objecting to the regulations.

Many of these attorneys general, Shapiro included, also signed on to one of the letters now citing COVID-19 as the reason the regulations should not go into effect.

In November 2019, the regulations moved to the final step before enactment: review by the White House’s Office of Management and Budget. OMB review is not intended to be a second notice-and-comment period, but rather a final opportunity to raise concerns that may have been overlooked.

Immediately, opponents of the rule — despite already having participated in the notice-and-comment process — began scheduling OMB meetings out as far as possible, in what appears to be another effort to delay adoption of the regulations.

The final two meetings scheduled were by the Women’s Law Project and Equal Rights Advocates, both signatories on one of the COVID-19 letters.

Many of the groups now asking the department to suspend rulemaking are associations of college administrators.

These same administrators have also been publicly touting the need, and their ability, to continue with Title IX adjudications during the crisis by using videoconferencing and other technology.

If administrators can use these technologies to conduct investigations and hearings, they can certainly use the same technologies — not to mention the additional time on their hands — to prepare to make changes to their policies under regulations about which they have known for the past 16 months.

These recent efforts to capitalize on the pandemic should be seen for what they are — the last in a long and consistent line of efforts to ultimately delay the regulations’ adoption until the next election in the hope that they will never take effect.

Accused students have waited long enough for even a modicum of basic fairness. The new rules must be enacted now.

Publication of the regulations does not mean that they must be implemented instantaneously: there is always a grace period for schools to come into compliance, a period that could theoretically be extended, if necessary, in the face of exigent circumstances.

Universities have been on notice of these proposed changes for 16 months now.

If they have failed to plan and are not ready to provide these basic procedural protections, they have only themselves to blame.

Due Process Sexual Assault Title IX

Reform Title IX Now

The Department of Education’s (DOE) reform of Title IX—the law that bans discrimination based on sex at federally-funded schools—has been a long time coming. For three Senators, it has not been long enough. They strenuously object to the impact on how colleges handle accusations of sexual misconduct. No longer will an accused be presumed guilty until proven innocent. Instead, he will be accorded due process.

On March 31, Patty Murray—the leading Democrat on the Senate education committee—Elizabeth Warren, and Kirsten Gillibrand sent a letter to Education Secretary Betsy DeVos to express their opposition to finalizing the reform. “We urge you not to release the final Title IX rule at this time,” they argued, “and instead to focus on helping schools navigate the urgent issues arising from the COVID-19 pandemic.”

This is an odd argument. Now seems to be the perfect time for colleges to work on policy and administrative matters. Campuses are empty. No sexual misconduct hearings will be interrupted; students will be spared the confusion of a mid-semester policy change; administrators can implement regulations before the new academic year.

Colleges are hardly caught off guard. The reform began on September 22, 2017 when the DOE withdrew the controversial Dear Colleague Letter (2011) that governed the treatment of sexual misconduct accusations on campus. The Obama-era Letter was widely criticized for mandating a low standard of proof for findings of guilt and encouraging the denial of due process, such as a defendant’s right to a lawyer. The DOE’s replacement guideline was officially made public on November 29, 2018 when the Federal Register published “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.

The proposed reform received vast attention and backlash in this time of #MeToo that demands automatic belief of women’s accusations. in January 2018, three national public interest organizations, including the highly influential National Women’s Law Center (NWLC), sued DeVos and the DOE to block the Title IX reform. The lawsuit claimed that the “new and extreme Title IX policy…was issued unlawfully and based on discriminatory beliefs about women and girls as survivors of sexual violence, in violation of the Constitution.” The lawsuit was eventually dismissed.

Senator Murray has also attacked the Title IX proposals. A news release from her office reported on Murray’s statements at a Senate hearing on campus sexual assault. “I stand with you [accusers] and I’m going to keep fighting to stop what happened to you.” Murray accused the DOE of being “callous” and ignoring “the experiences of survivors,” which would “discourage students from coming forward after being sexually assaulted.” Gillibrand has decried DeVos as favoring “predators over survivors.” Warren has stated, “There’s no greater example of how we’re failing students and teachers than Betsy DeVos, the worst Secretary of Education we’ve seen.” These statements do not argue for the delay but for the derailment of DOE’s plans.

Liberals view the new rules as a shift to the right and an abandonment of Obama-era policies. Consider two definitions of a key term, “sexual harassment.” According to the Dear Colleague Letter, “Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” This broad characterization includes bad jokes and leering glances. By contrast, DeVos uses the reigning Supreme Court definition of “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This is a far more limited definition.

Why, then, are the 3 Senators calling for delay rather than dismantlement? The coronavirus is unlikely to disappear as an issue before the 2020 election. And, if Joe Biden wins, he has promised the reform would be withdrawn. This process would be be easier, however, if policy changes were not already implemented.

Stalling the DOE reform seems to be a conscious strategy of its opponents. According to Tulane University Title IX coordinator, Meredith Smith, the NWLC orchestrated a sequence of delays with various victims rights groups. Smith stated, “So there was this delay strategy happening. We would hear that the Department of Education was about to release the regulations and then the National Women’s Law Center and all these other groups would parachute in and get more and more meetings on the calendar which push [the release date] back.” They requested a long series of meetings with the Office of Management and Budget (OMB), for example. During the final public commentary on a regulation, individuals can meet in person or over the phone with OMB officials to share concerns; this process usually takes a couple of days, With the DOE regulation, the first meeting was November 13, 2019, and the process ended on March 27, 2020. It stretched over 4 months.

A recent article in the National Review, entitled “Coronavirus Is No Excuse to Delay the Education Department’s New Title IX Regulations,” declared, “Those making this argument [for postponement] are taking advantage of a crisis to try to keep due process out of college campuses.” They are gaming the system.

The DOE reform returns due process to campuses. It also offers relief to lawsuit-prone schools that now function as police, judge and jury in handling students and faculty accused of sexual misconduct. Increasingly, colleges are sued in federal court by those who were found guilty without a fair hearing. As a headline in the Detroit Free Press stated. “Courts ruling on side of students accused of sexual assault. Here’s why.” The “why” is the violation of their due process rights.

Justice delayed is justice denied. And Justice must not be further denied.


Title IX

Let’s Not Delay Due Process On Campus

Under Title IX, colleges have an obligation to address sexual assault on campus.

Colleges have a corresponding obligation to treat all students fairly. Unfortunately, many colleges have created secret sex tribunals that stack the deck against accused students in order to increase discipline rates.

The tribunals often dispense with the presumption of innocence; deny students the right to see the specific charges or evidence against them; and deny accused students the opportunity to present evidence that might demonstrate consent, such as text messages.

Such procedures violate basic standards of fairness and have led to many miscarriages of justice.

Hundreds of students have successfully sued their colleges for unfair treatment.

But few colleges have altered their policies in response to such rulings.

It’s time for the Department of Education to issue regulations requiring schools to adopt fair and unbiased procedures.

Because without due process, there can be no justice.

Title IX

Civil Liberties Groups Push Title IX Rule Release

Two civil liberties groups have urged the U.S. Department of Education not to delay the release of proposed regulations under Title IX, the law prohibiting sex discrimination in institutions that receive federal funding, despite institutions’ occupation with the coronavirus pandemic.

The shift of colleges to primarily online operations means it is “an ideal time” for officials to change their policies to be in compliance with new Title IX regulations, the leaders of Speech First, a campus free speech organization, and the Independent Women’s Law Center, which advocates for reduced government control, wrote in a letter to Education Secretary Betsy DeVos and Assistant Secretary Kenneth Marcus. The letter called attempts to delay the final regulations, which were proposed in November 2018, “a disingenuous attempt to put off indefinitely the implementation of rules that certain senators and special interest groups oppose on the merits.”

Several members of Congress and state attorneys general have called on DeVos to delay the final rule, suggesting that institutions are putting all efforts toward the basic needs of students during the coronavirus pandemic. But waiting on the rule would mean “biased investigatory procedures that stack the deck against the accused” will continue for students in the Title IX process at colleges, the letter said.

“All stakeholders in America’s institutions of higher education — from students and parents to faculty and administrators — deserve a just system, and they deserve it now,” Nicole Neily, president and founder of Speech First, said in a release. “At a time when the COVID-19 pandemic has created much uncertainty in the education community, the department can provide clarity with respect to Title IX by issuing the regulations as soon as possible.”


‘Time’s up to restore due process’: Groups urge DeVos to ignore coronavirus stalling tactics for Title IX reform

Title IX coordinator spills the beans on ‘delay strategy’


Activist groups who opposed the Trump administration’s proposed Title IX regulations from the start are now citing the outbreak of COVID-19 as a reason for further delay.

In response, due process advocates are urging the Department of Education to keep its schedule for release of the rules, which would add several due process protections for accused students in campus sexual misconduct proceedings.

While it’s true that the novel coronavirus is exhausting colleges’ available resources, opponents of due process are using the public health crisis as an excuse to cover up their disapproval of the proposed regulations, according to a due process group.

“It’s not because of the coronavirus, it’s because they don’t like and don’t want the due process rule. Period,” Stop Abusive and Violent Environments wrote in a statement.

“At a time when the COVID-19 pandemic has created much uncertainty in the education community, the Department can provide clarity with respect to Title IX by issuing the regulations as soon as possible,” according to a letter to the Department of Education by Speech First and the Independent Women’s Law Center. They called on the feds to not buy into coronavirus as an excuse to delay the due process rights of students.

On-time release of the rules is important for accusers as well, according to Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education.

“The status quo with respect to campus Title IX proceedings is unacceptable,” he said in a FIRE statement. “Institutions too often harm complainants by sweeping allegations under the rug or by handling their complaints with insufficient care, while the railroading of accused students is also well documented. Neither of these injustices should be allowed to persist.”

As evidence that due process opponents are trying to delay the regulations as long as they can, SAVE shared a clip from an Instagram video posted April 3 by Tulane University’s Title IX office.

Coordinator Meredith Smith explains the “delay strategy” devised by the National Women’s Law Center and some other “legal and victims advocate groups.”

In order to push off the regulations from taking effect in 2019, they “parachut[ed] in to get more and more meetings” with the White House Office of Management and Budget, which must sign off on agencies’ proposed regulations, Smith says. Her office didn’t know about the strategy until “January or February.”

MOREColleges, Democrats use COVID to get out of treating students fairly


Shocking video clip of Tulane TIX coordinator, revealing the Nat’l Women’s Law Center orchestrated a strategy to delay release of new TIX regs, as posted in SAVE article. @BetsyDeVosED @usedgov 

Embedded video

Don’t seek to ‘implement regulations unrelated to this extraordinary crisis’

Colleges have known the specifics of the Department of Education’s proposed Title IX regulation for nearly a year and a half. The broad contours go back a year earlier than that.

It would ban “single investigator” proceedings where one official acts as judge, jury and executioner; require live hearings with some form of cross-examination by students’ advocates, including lawyers; and require colleges to use the same evidence standard in disciplinary proceedings for both students and faculty, who often have more protections.

The proposed procedures are in line with several court precedents, particularly those from the 6th U.S. Circuit Court of Appeals, which ordered colleges to allow cross-examination when “credibility is at issue.” They would also be legally binding, a reversal of the Obama administration’s “guidance” approach.

Three Democratic senators called it “reckless and inappropriate” for the Department of Education to require K-12 schools and higher education to “significantly alter how they handle allegations of sexual harassment and assault” during the pandemic.

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They face “unprecedented uncertainty about the end of this school year and the start of the next school year,” wrote New York’s Kirsten Gillibrand, Washington’s Patty Murry and Elizabeth Warren of Massachusetts. “The federal government should be doing everything possible to help them navigate these uncertain times,” including by delaying the Title IX regulation.

The American Council on Education, which represents college presidents, as well as NWLC and 18 Democratic attorneys general have all written letters to the Department of Education asking to delay the rules, given the strain of COVID-19 on colleges.

“At a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis,” ACE wrote.

“Finalizing the proposed rule would also unnecessarily exacerbate confusion and uncertainty for students who are currently in pending Title IX investigations and hearings, which have already been delayed and disrupted by the pandemic,” NWLC wrote. The attorneys general echoed these arguments.

Stalling rationale ‘also true for a university absent of a coronavirus pandemic’

Due process advocates countered that now is the perfect time to implement new Title IX rules because colleges have had ample time to plan and Title IX officers will not have to worry about an abundance of new cases, given how few students remain on campus during the COVID-19 outbreak.

The rationales offered for delay by NWLC and ACE – that colleges are dealing with reduced resources, increased stress and difficult work arrangements – are “also true for a university absent of a coronavirus pandemic,” SAVE countered. It noted that NWLC’s letter tipped its hand by calling the Title IX proposal “fundamentally flawed,” not just ill-timed.

“Students are given ample notice to complete their assignment and turn it in for a grade,” the due process group continued. “Universities have had ample notice and time to prepare for the release of new rules enforcing Title IX on their campus.  No more excuses. Time’s up to restore due process on University campuses across the nation.”

Writing for SAVE, University of Utah Prof. Nicholas Wolfinger wrote Sunday: “With campuses shuttered and students sent home, opportunities for campus sexual misconduct have plummeted. In short, this is the ideal time for the new regulations to be implemented.”

Given the proposed rules were published in November 2018, “preparation for the implementation of these regulations should be well underway at this point,” said the Speech First and IWLC joint letter. “Students who are currently caught up in Title IX adjudications should not be forced to wait any longer for clarity on their cases.”

Speech First President Nicole Neily said in a separate statement that “all stakeholders in America’s institutions of higher education—from students and parents to faculty and administrators —deserve a just system, and they deserve it now.”

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IWLC Director Jennifer Braceras added: “Universities must not be allowed to hide behind this pandemic as an excuse for violating the due process rights of the accused.”

FIRE’s Cohn emphasized that the Department of Education’s proposed rules are “not the only potential legal authority mandating changes,” pointing to the “growing list of schools … on the losing end of judicial opinions blasting the institutions’ procedures”:

Does anyone think the pandemic should result in stays in all of those cases? Should we presume that the current world situation should be grounds to stay all judicial orders — even those in other contexts — requiring the government to halt the revision of policies that violate constitutional rights? If not, then why only in this context must this type of institutional actor be allowed to continue unjust practices?

Secretary Betsy DeVos* has been coy on the timing of the rule, which faces no more regulatory hurdles after clearing OMB review.

In a news release by the Department of Education about the stimulus money going to higher education, she vaguely responded to questions regarding the Title IX regulation.

Without giving an exact date for the regulation’s rollout, DeVos said the department is taking into consideration both sides’ arguments on the matter. “We are sensitive to the situation [with coronavirus-related burdens]. But we also have to acknowledge that Title IX investigations continue to happen.”