Month: May 2020

Categories
Campus Title IX

ATIXA Puts Members into Legal Jeopardy Regarding Requirement to Publicly Post Training Materials

The new Title IX regulation affirms, “A recipient must make these training materials publicly available on its website.” (1) SAVE believes this is one of the most important provisions in the new regulation into order to bring an end to the pernicious sex stereotypes and gender discrimination that have emerged in recent years.

So what part of “A recipient must make these training materials publicly available on its website” does the Association for Title IX Administrators (ATIXA) not understand?

The ATIXA website boasts that it “brings campus and district Title IX Coordinators and administrators into professional collaboration to explore best practices, share resources, and advance the worthy goal of gender equity in education.” (2) This makes it all the more important to “get it right” for the vast number of members who look to ATIXA to interpret and apply the law, or else put their members at legal and financial risk.

On Monday, May 11, ATIXA sponsored a webinar titled, “Ten Things to Know About the New Title IX Regulations.” (3) Brett Sokolow, president of ATIXA, told over 4,200 webinar attendees that they are not to follow the Department of Education regulation, but instead follow ATIXA’s legally dubious guidance. Making the claim that the ATIXA training materials are “proprietary,” Sokolow admonished the group:

“And so for materials that are proprietary, our suggestion is that you do the following: that you list those on your website by the type of document, or webinar, or training video, or whatever the materials are, by its title and authorship; but that you don’t include the contents.  You just include the title and then you allow members of the public to request access, which will probably be in your office.”

Emphasizing the point, Sokolow continued,

“They are not permitted to have a copy….and are not allowed to take photos or screenshots….they are allowed to take notes on what they see.”

Hmmm. This sounds eerily similar to the extremely limited access that accused students were afforded by Title IX administrators to view crucial witness statements, documents, and evidence during the nine-year “Kangaroo Court” era following issuance of the 2011 Dear Colleague Letter on sexual violence.  The Department of Education put a stop to that nonsense with the issuance of the new Title IX Regulation.

It appears the Department of Education will need to do the same to address ATIXA’s misguided instruction to its members.

Citations:

  1. Section 106.45(10)(i)(D)
  2. https://atixa.org/
  3. https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2020/05/11155019/ATIXA-R3-Webinar-Slides_5.11.20.pdf
Categories
Title IX

Black men protected most by Trump reforms to Obama-Biden campus sexual assault rules, experts say

Critics say there were ‘parallels between the treatment of black men accused of rape during the infamous Jim Crow period and the adjudication of sexual assault cases in the current [Obama] era.’

Campus sexual assault
Rally against sexual assault, Howard University, Washington, D.C., 2016.
(Photo by Win McNamee/Getty Images)
By Carrie Sheffield
Last Updated:
May 12, 2020 – 4:10pm

Critics say black men were disproportionately hit by Obama-Biden campus sexual assault rules denying due process and are cheering the Trump administration’s reversal of those policies.

On Wednesday, the Department of Education released new Title IX regulations that codify the obligation of schools to investigate claims of sexual assault and harassment. Previous rules under the Obama administration laid the groundwork for what exists today on many campuses: byzantine sexual misconduct disciplinary systems that investigate and punish all manner of sex-related behavior — from sexually suggestive jokes to drunken couplings to forcible rape. Critics say these extra-judicial systems often abandon the presumption of innocence and stack the deck against accused students, denying them basic due process.

“Once again, the Trump administration is righting a wrong perpetrated by Joe Biden, who as Vice President spearheaded a Title IX initiative that attempted to overhaul the assumptions on which our legal system is built and undermined the ability of the accused, usually men and often men of color, to get a fair hearing,” Andrew Clark, Rapid Response Director for the Trump campaign, wrote in a press statement. “Black men were disproportionately hurt by Biden’s campus sexual assault policy.”

In his statement, Clark linked to a 2018 report from The College Fix titled, “Believe the survivor? Here’s 11 times young black men were railroaded by campus sexual assault claims.”

“Six years’ worth of dismal due process rights for the accused has led to hundreds of young men fighting sexual assault claim allegations in court,” wrote The College Fix’s Michael Jones. “Even more concerning, this lack of protection has rendered one group particularly vulnerable — young black men.”

Jones cited a report from Center for Prosecutor Integrity, a nonprofit group that fights the “over-criminalization” of sexual activities. The report argues there are “parallels between the treatment of Black men accused of rape during the infamous Jim Crow period, and the adjudication of sexual assault cases in the current era.”

Jones also referred to Harvard Law School Professor Janet Halley, who has helped represent both alleged victims and alleged perpetrators in campus sexual-misconduct investigations. Halley testified before Congress in 2015 that male students of color are accused and punished at “unreasonably high” rates.

In her written testimony to Congress, which was an article she’d written for The American Prospect Magazine, former federal judge Nancy Gertner, a retired Harvard Law professor, also pointed to “the racial implications of rape accusations, the complex intersection of bias, stereotyping, and sex in the prosecution of this crime.”

The Trump campaign noted that multiple journalists and political analysts have called attention to Biden’s politically selective standards for weighing guilt and innocence in sexual assault cases

“It’s despicable that Joe Biden lowered the standards for accusations on college campuses to basically install a presumption of guilt for the accused,” Paris Dennard, Black Voices for Trump Advisory Board member, told Just the News. “There is no doubt these policies disproportionally impacted students of color. Now that he is in the hot seat, Biden doesn’t want that same standard applied to him, and that is the height of hypocrisy. I am confident the black community will see the arrogance of Joe Biden for thinking the same rules don’t apply to him.”

John Burnett, a Republican strategist and African-American activist based in New York City, told Just the News that the Trump administration’s new campus rules dovetail with prior actions Trump has taken to reform the criminal justice system, including a law known as the First Step Act. A report by the U.S. Sentencing Commission found that 91% of the 1,051 people who received retroactive prison sentence reductions under the act were black.

“Biden is the liberal that Malcolm X warned black America about over 50 years ago,” Burnett said. “The Trump administration made criminal justice reform a priority by passing the First Step Act, and currently working on a Second Step Act, while undoing the Title IX campus initiative to curtail due process rights that disproportionately impacted black men. Hence, he is dismantling Biden’s legacy of mass incarceration.”

The Biden campaign did not respond to a request for comment from Just the News. Biden has enjoyed strong support among black voters during the Democratic presidential primary, with key support from Rep. Jim Clyburn (D-S.C.), a well-known black civil rights leader, playing a pivotal role in turning Biden’s political fortunes around after stinging defeats in Iowa and New Hampshire.

Supporters of the new Trump-era regulations, which carry the force of law, say they will help both alleged victims along with the accused.

“The new rules protect survivors by making college disciplinary decisions more likely to withstand legal scrutiny and by emphasizing the need for supportive measures for victims — even for those who choose not to file a formal complaint,” Jennifer C. Braceras, director of the Independent Women’s Law Center, said in a statement. “Only by addressing claims of sexual misconduct and providing due process can colleges begin to restore faith in the system.”

Categories
Title IX

No Evidence That Domestic Violence Is Rising Due To COVID-19

https://libertarianinstitute.org/uncategorized/no-evidence-that-domestic-violence-is-rising-due-to-covid-19/

A media blitz declares domestic violence (DV) is soaring during COVID-19 because stay-at-home orders have trapped women and children in close proximity to abusive men. Flawed evidence and assumptions underlie this claim but, with the panic of the crisis, it could be embedded in public policy, nevertheless.

A headline in Vice presents the perceived problem: “New York Is Seeing a ‘Frightening’ Increase in Domestic Violence Calls. Calls to New York’s domestic violence hotline rose by 30% in April, compared to the same month last year.” The information apparently comes from Crystal Justice, the Hotline’s chief development and marketing officer.

According to a report in the Chicago Tribune, however, “The New York City Police Department said that reports of domestic violence have ‘progressively declined’ since the onset of the pandemic. The crimes fell nearly 15% last month compared to March 2019.” Melinda Katz, district attorney in Queens, reports “domestic violence arrests have fallen nearly 40%.” Perhaps the lesson of the Vice story is that calls to a hotline are not a good indicator of actual domestic violence rates.

An April 28 article in the Huffington Post offers a solution to the problem that it acknowledges as being only “likely” to exist. “Two advocacy organizations released a slew of recommendations for the next coronavirus relief legislation [CARES2], which Congress is drafting now. Chief on the list of demands is emergency funding.” The first CARES package included funding for the National Domestic Violence Hotline and $45 million for other DV programs.

A political push has been underway. In an April 13 letter, 41 Senators from 29 states called upon future COVID-19 relief bills to allocate an additional $413 million to programs that address the “horrifying…surge” in DV. The primary vehicle proposed for dispersing funds and services was the controversial Violence Against Women Act (VAWA), which has yet to secure reauthorization.

It is time to pause in the race to legislation and ask the most basic question: is there a surge in DV? The supporting evidence seems anecdotal and often histrionic; it is usually provided by advocates or organizations with a vested interest in DV funding. These factors do not invalidate the data offered, but they heighten the need for scrutiny and for more neutral sources to be checked.

The Coalition to End Domestic Violence recently conducted a rough verification test. The CEDV did a Google search on the terms “coronavirus,” “domestic violence,” “police reports,” and each senator’s state. (Police reports are among the most politically neutral sources that are easily available.) The results from the 14 states that responded were categorized to indicate a decrease in DV (more than 10% under baseline), a steady mode (less than 10% change), or an increase (more than 10% higher). Eight states revealed a decrease; five were steady; and one confirmed an increase.

The increase occurred in Boise, Idaho. The Idaho Statesman (March 18) explained, “Local police saw a mild increase in domestic reports last week, compared to the same time last year, but it’s too early to tell if it is a real trend. From March 7 through March 14, Boise Police responded to 63 reports of domestic battery and domestic disputes. In the same week of 2019, Boise Police responded to 55 reports of domestic battery and domestic disputes.”

The point is not that one set of claims is true, and the other is false. The point is that the reports are preliminary and contradictory. The claims need to be checked before hasty legislation embeds bad data into law.

Some people will ask, “What’s the harm?” Apart from expending taxpayer money in a time of fiscal crisis, DV prevention is correctly considered to be a worthy cause that deserves compassion and cash. A great deal of harm occurs, however. DV is further politicized and pushed away from what is real about the issue. For example, media accounts almost always refer to the victim as female and the abuser as male even though the abuse of men is common.

How common? Studies and estimates differ, partly because men are notoriously reluctant to report abuse for which they are often ridiculed or dismissed. The Centers for Disease Control’s National Intimate Partner and Sexual Violence Survey (2015) found that “In the U.S., about 1 in 3 (33.6% or 37.3 million) men experienced contact sexual violence, physical violence, and/or stalking by an intimate partner during their lifetime.” Meanwhile, “over 1 in 3 (36.4% or 43.6 million) women” experienced DV. The injuries to women tend to be more severe but the rate of abuse is roughly the same for both sexes.

The bottom line: Men endure a significant and, perhaps, an equal rate of DV. If stay-at-home confinement increases violence against women, then confined men should be equally vulnerable to greater abuse. Yet the proposed funding and protections are extended through the VAWA—with the ‘W’ standing for ‘Women’— which is notorious for discriminating against male victims. The Act’s language is gender neutral but its programs are not; shelters are almost always “women-only” places, for example.

The April 13 letter from the 41 Senators offers another example of anti-male discrimination. “American Indian and Alaska Native communities” are singled out as desperately needing DV services. “Shelters and Tribal advocacy programs,” the letter states, “are often all that stand between safety and Native women going missing and/or murdered.” This language echoes a section of VAWA—Title IX: Safety for Indian Women—which cites a stunning statistic from a National Intimate Partner and Sexual Violence Survey. “More than 4 in 5 American Indian and Alaska Native women, or 84.3 percent, have experienced violence in their lifetime.” The VAWA citation has a curious omission, however. Immediately thereafter, the Survey states that “more than 4 in 5 American Indian and Alaska Native men (81.6 percent) have experienced violence in their lifetime.” In other words, the men experience only 2.7 percent less violence than the women. And, yet, only women are mentioned.

A head-long rush toward DV legislation that is based on fear of COVID-19 and on gender bias is far from harmless. It continues the problem by distorting the reality of DV and fixing prejudice against men into the law. Everything about COVID-19 claims should be checked and verified, including underlying assumptions.

Categories
Title IX

Foxx Statement on Education Department’s Title IX Rule

https://republicans-edlabor.house.gov/news/documentsingle.aspx?DocumentID=406948

WASHINGTON, D.C. | May 6, 2020
Today, Republican Leader of the House Education and Labor Committee, Rep. Virginia Foxx (R-NC), issued the following statement supporting the Department of Education’s final rule to address the responsibilities of college campuses and K-12 schools under Title IX of the Education Amendments of 1972:

“Our highest priority is to ensure that all students can pursue education free from discrimination, harassment, and sexual violence. But as the Speaker noted last week, those accused of sexual assault are also owed due process, and we owe it to all students to ensure that campus judicial procedures operate consistently with our nation’s fundamental beliefs in fairness. The regulation issued today accomplishes both goals. It ensures protections for sexual assault survivors and requires thorough investigations of sexual assault incidents. It also aligns Title IX requirements with court precedents and provides fundamental protections for due process. I commend Secretary DeVos for her thoughtful approach to this important issue, listening to feedback from stakeholders, and producing a final rule that will help institutions protect the safety and rights of all students.”

NOTE: In 2011, the Obama administration issued an informal letter defining sexual harassment as a form of sex discrimination actionable under Title IX. A follow-up letter in April 2014 provided additional guidance on schools’ responsibilities under Title IX to address sexual violence as a form of sexual harassment. These two letters generated significant controversy and confusion. Many have criticized the letters for undermining due process rights for involved parties, and multiple court cases have struck down campus procedures that resulted from the guidance.

Categories
Campus Title IX Equity Project

Growing Debate Whether Title IX Should Help Male Students Excluded by Female-Only Programs

Coding camps for girls. Scholarships for women only. Grants for female faculty. Mentorships for women and “femme-identified” undergrads.

Such same-sex exclusive perks are a staple of academia’s mission to achieve an equitable society. Some colleges go further and offer women’s only hours at the campus gym, weight room and swimming pool.

Created to counter sexual harassment and discrimination, these programs are now being reviewed by the Trump administration’s Department of Education. The federal department’s Office for Civil Rights has opened more than 90 investigations of the programs to date, in all 12 of the office’s regional branches nationwide, and the total grows nearly every week as complaints are reviewed and accepted for investigation.

The complaints started off as a trickle, lodged mostly by men who found the programs offensive, and have come fast and furious in the past few years. Nearly 300 complaints now await resolution.

The charges of anti-male discrimination may soon balloon as advocates expand their campaign to K-12 schools that receive federal funding and are subject to federal regulatory compliance and Title IX oversight. In April, the Office for Civil Rights opened an investigation against New York City’s Department of Education, based on a Title IX complaint that public schools are hosting single-sex Girls Who Code after-school camps. One advocate predicts this could lead to hundreds more complaints against public school districts.

“It’s now a new era of civil rights for all, and not the past practice of civil rights for some,” said Mark J. Perry, a University of Michigan professor of finance and business economics who has filed 129 complaints against universities since 2016. He said female success in academia is so “overwhelming” that the notion that women face disadvantages is “outdated.”

Defenders contend that bias persists despite such arguments, likening them to attacks on affirmative action as a form of reverse discrimination.

“Let’s look at the reality: We still have these persistent challenges in our society, so let’s make it easier for women to access and thrive in STEM or other areas,” said Lynn Pasquerella, president of the Association of American Colleges and Universities, referring to the common acronym for science, technology, engineering and math.

The allegations of anti-male bias in education touch on conflicting understandings of fairness, and raise the question of whether policies used to redress discrimination come with an expiration date. They also raise a more fundamental point that goes beyond the regulatory definition of discrimination: To what extent are disparities between men and women shaped by society or by genetics? And at what point do well-intended social policies become rigid social agendas?

In a legal strategy some see as ironic and others consider cynical, the complaints are based on the federal Title IX anti-discrimination law enacted in 1972 to give women a fair shake.

Perry, a self-described libertarian and an American Enterprise Institute scholar, is occasionally tipped off by professors and others about female-only programs at their institutions. He wasn’t the first to allege anti-male discrimination when he lodged his first objection in 2016 before Donald Trump’s election – against a women-only lounge at Michigan State University – but he escalated the allegations to a systematic nationwide campaign.

He said the same issues are playing out in the private sector, with many companies favoring employees by gender, sexual orientation or ethnicity, along with a diversity push to boost women in technology that some quietly resent. “What starts in higher education often filters out or metastasizes in corporate America,” Perry said.

And Perry is comfortable using the language of social justice activists to describe his motivations and to impugn the motives of his critics.

“Women’s groups and feminists are clinging to their special preferences as a way to maintain power and privilege, and a disproportionate share of campus resources,” Perry said.

While women’s rights advocates say such single-sex programs are necessary to counter discrimination women face on campus, the Department of Education has stated they are illegal unless the university provides equivalent opportunities for men.

Women were once grievously underrepresented in universities, but since the early 1980s they have accounted for most undergraduate degrees, according to federal data. The projection for this year’s graduates is that women will represent 57.4% of bachelor’s degrees, 59.9% of master’s degrees and 53.8% of doctorates. Those projections are expected to remain stable for the next decade.

But despite years of efforts, women account for only 20% of bachelor’s degrees in computer science and 22.2% of bachelor’s in engineering. Much of the disagreement over the Title IX complaints relates to these two STEM disciplines, where the disparity is so lopsided it is reminiscent of universities a century ago.

In response to the Title IX complaints, several dozen universities have voluntarily opened their single-sex programs to males or created parallel programs just for men.

For example, Eastern Michigan University last November supplemented a Digital Divas computer camp for middle school and high school girls with a Digital Dudes camp for boys. Institutions that agreed to open up programs to males include Grand Valley State University with its Science Technology & Engineering Preview Summer (STEPS) Camp for Girls, the University of Pennsylvania’s Penn Girls in Engineering and Science Camp (GEMS) and the WISE Summer Camp at Clemson University, which has been operating more than 20 years.

Tulane University even agreed to provide remedial training to campus administrators who oversee financial aid and other programs, to teach them that Title IX prohibits all sex discrimination, “including discrimination against men,” according to the 2018 agreement between Tulane and Office for Civil Rights. That concession was part of Tulane’s agreement to alter 16 women-only fellowships, grants, mentorships and other programs.

At the same time, some universities are “aggressively challenging” the complaints, said Phil Catanzano, who worked as an OCR lawyer in Boston for a decade until 2015 and now represents about a dozen universities that have been accused of anti-male discrimination. Catanzano, who would not disclose which universities he represents, said at least some of the programs can be saved by arguing they are necessary to counter discrimination, and by demonstrating they don’t limit opportunities for male students and faculty. A number of the computer camps are hosted on university campuses but attended by middle and high school girls.

“This is the best and most direct way to provide equal participation, an open door. It’s one of those things where, if you build it, they’ll come,” Catanzano said. “If you don’t provide opportunities at a younger age for girls because you’re relying on some stereotype, and then you complain they don’t perform as well when we assess them in middle school, high school and college, you’re kind-of cooking the books to start with.”

Race-based affirmative action likewise faced legal challenges and advocates were able to maintain the policy by reframing it as a way of fostering diversity and inclusivity, rather than a system of institutionalizing racial preferences.

Exactly how many of these single-sex programs exist is anybody’s guess, but it could well be in the thousands. A number of the Title IX complaints allege that universities offer dozens of such programs, and some institutions have 50 or more.

“It’s just a stunning inequity of these scholarships,” said E. Everett Bartlett, president of SAVE, which stands for Stop Abusive and Violent Environments. To date, the Rockville, Md.-based organization has filed 164 Title IX complaints since 2019 that have resulted in more than 100 federal investigations.

“People are being harmed,” Bartlett said. “Every student is trying to pay for college tuition without going into debt. And you’re saying to a large portion of the student body: You don’t qualify so there’s no need for you to apply.”

The SAVE Title IX Equity Project complaints focus on single-sex scholarships that benefit women, but as part of its efforts, the organization has filed complaints against several universities’ male-only scholarships, too. SAVE has challenged eight scholarships at the College of Charleston, in South Carolina, that it says are for minority men or with a preference given to minority males.

In March, SAVE issued an analysis of 319 universities in all 50 states that found that at 85 institutions female scholarships outnumbered male scholarships by 10 or more.

Perry said hundreds of K-12 school districts could be violating Title IX, based on the fact that the nonprofit Girls Who Code organization’s web site states that it operates 8,500 programs worldwide. The organization says in its annual report it has served more than 90,000 girls in all 50 states in this country, and its signature program is open to girls from the third through 12th grade. Girls Who Code programs are hosted in public schools and at universities.

“Universities are for the first time being challenged for violating Title IX by offering single sex programs/scholarships, as they continue to live in the past, as if we’re still in the 1960s or 1970s, by pretending that women are handicapped and disadvantaged,” Perry said in an email. “Now that those programs and scholarships are being challenged for the first time, universities have a 100% record of losing.”

A Department of Education spokeswoman who provided information on the condition of anonymity explained by email that the department’s Title IX regulations do not permit the creation of academic programs or financial assistance to members of only one sex.

But there are exceptions, such as cases where “the same opportunities are available for members of the excluded sex.”

For example, university donors can use a will or trust to set up a scholarship that’s restricted by gender “so long as the overall effect of the award does not discriminate on the basis of sex.”

Title IX allows for single-sex private universities, like women’s colleges, and facilities, such as residence halls.

Still, for women’s rights advocates, the flurry of Title IX complaints and the favorable reception at the Department of Education signifies a dangerous trend that threatens to undo years of gains women have made in academe.

Pasquerella said women face “persistent structural barriers,” particularly in STEM fields like engineering and computer programming, where they still represent about 1 in 5 undergraduate degrees.

“There are not just subtle but overt pressures for women not to participate,” Pasquerella said. “Women and girls don’t have a sense of belonging in STEM. One way to address that is by creating communities where people can come together and say, ‘Yes I do deserve a place in STEM disciplines in the academy in other areas where women have been traditionally marginalized or excluded.’”

Feminists don’t agree on every point regarding gender disparities. Pasquerella, for example, is not troubled by the lopsided overrepresentation of women in nursing, she said, because there is no evidence men face stigma or discrimination in that field.

Erin Buzuvis, a professor at the Western New England University School of Law and a Title IX expert, said that “occupational segregation” in nursing and other fields where women predominate is a social problem and should be corrected.

“As long as you agree that the environment is shaping our choices, then why would we pick something less than equal as our goal?” she said.

Adriana Kugler, a professor of Public Policy and Economics at Georgetown University who dismissed Perry as misinformed and driven by an agenda, has found that discrimination is difficult to isolate as the decisive factor for low female degrees and jobs in STEM fields, but said implicit bias and stereotyping are real problems. A paper she co-authored for publication this year — “Choice of Majors: Are Women Really Different From Men?” — reports that girls respond to a variety of influences and are more likely than boys to change majors when they get poor grades in STEM classes. Ironically, female-only programs may diminish their interest and confidence.

“The numerous government and other policy initiatives designed to get women interested in STEM fields may have the unintended effect of signaling to women an inherent lack of fit,” the paper states.

Invoking discrimination as a defense of single-sex initiatives is no longer the slam-dunk argument it once was, some say. Brett Sokolow, president of ATIXA, the Association of Title IX Administrators, said that Title IX has historically allowed for affirmative action exceptions, but they are increasingly harder to justify.

“Mark’s primary thesis is the historical justification for single sex programs doesn’t exist anymore,” Sokolow said. “I think that basic premise is basically true for most schools and most programs.”

In cases where it’s not true, Sokolow said, many universities are ill-equipped to mount a defense.

“They’re not making the effort to. They’re just assuming that there’s a historical exclusion,” he said. “For most of these schools, they aren’t going to jump through those hoops of doing all that data collection and assessment to save one program.”

Still, some institutions are fighting back. A common defense is that programs advertised as female-only don’t exclude men.

The Ohio State University made that argument to the Office for Civil Rights in January in response to a complaint by Perry.

“When the College states that ‘We serve all female students,’ it is not to the exclusion of men, but to be inclusive of all females including minoritized women – women of color, LGBTQ women, and women who are first generation,” OSU said in a letter to the OCR. “The intent is to address the historical and current marginalized and underrepresented groups in engineering as well as foster the success of students anywhere on the gender spectrum.”

Ohio State University agreed to open seven women’s programs to “all genders and gender identities.” It said it is reviewing one female-specific program to see if it needs to be changed or if it can be kept as is, said OSU’s letter written by Title IX Coordinator Kellie Brennan.

Perry said such responses are disingenuous because men are not likely to apply to a program designated for women.

University of California, Berkeley, spokeswoman Janet Gilmore said its Girls in Engineering summer camp for sixth, seventh and eighth grade students “is open to all genders.”

The university has since clarified the program’s web site and handouts to explicitly state that openness, in response to Perry’s complaint, Gilmore said. But Berkeley is proposing to the Office for Civil Rights to allow the College of Engineering not to change the name of the program “because doing so would likely result in a disproportionately low number of girls in the program.”

Gilmore said she did not know how many boys were among the roughly 350 students who have attended the camp the last three summers because UC Berkeley doesn’t track the gender of participants as part of its effort to “to avoid making any gender assumptions based on how someone presents themselves.”

At the University of Michigan, Perry is challenging 53 different programs and scholarships. Many are designed to address STEM enrollment disparities, but not all. Among the Michigan programs Perry is challenging: the Michigan Business Women BBA and MBA Programs at the Ross School of Business; the Center for the Education of Women Scholarship Program; three Sarah Goddard Power awards for “recognizing the status of women within the University of Michigan”; and the Commission for Women at the Dearborn campus that works on “providing an advocacy role in issues of concern to women employees of the campus” and “promoting women’s professional opportunities and toward providing opportunities for women’s personal growth.”

In his Title IX complaint, Perry said such programs suggest totalitarian impulses.

“This effect is akin to a German campus rejecting Jewish applicants in excess of the maximum quota or state-sanctioned hate speech against non-Muslims in Saudi Arabia or an Asian-majority firm discriminating against a white employee or indeed, the ‘separate but equal’ doctrine struck down in Brown v. the Board of Education.”

Michigan State University abolished its women-only lounge in 2016 — to comply with Title IX, it says. The move was unpopular on campus, and MSU still maintains gender-exclusive programs, including “ladies only” firearms and archery instruction.
Perry filed the Title IX complaint in 2018 and OCR opened an investigation in January 2019, nearly a year and a half ago, as the University of Michigan continues negotiating. A UM spokesman said the university doesn’t comment on pending litigation.

Perry said he became interested in disparities against males during the Great Recession when he noticed that men were disproportionately affected by the economic downturn. Men tended to work in hard-hit industries like construction, manufacturing and finance, whereas women were shielded from the worst effects because they were concentrated in fields like education and public health.

He filed his first Title IX challenge in 2016 over the women-only lounge at Michigan State University after he read about it in a college newspaper. He complained to MSU’s Title IX officer and the Michigan Department of Civil Rights. Then he leaked the story to journalists and it got picked up by the Washington Post. That summer the university renovated the lounge, which dated back to the 1920s, and reopened it for all genders that fall.

MSU spokesman Dan Olsen said by email that the lounge was converted to a study area to comply with Title IX, but not in response to anyone’s complaint.

The change was not popular on campus among students who organized to restore the lounge to its former status, Perry recalled.

“They went ballistic. There were sit-ins, protests,” he said. “That generated tons of hate mail.”

Source: https://www.realclearinvestigations.com/articles/2020/05/06/a_building_backlash_to_women-only_preferences_123481.html

Categories
Campus Title IX

Ed Dept. wants students accused of sexual misconduct to have rights Joe Biden wants for himself

In the wake of Tara Reade’s allegation that former Vice President Joe Biden sexually assaulted her when he was a senator in 1993 – an allegation that Biden strongly denies – he and his supporters have finally got it right when it comes to assessing claims of sexual assault.

Significantly, the position Biden now holds is based on the same philosophy behind the U.S. Education Department regulations released Wednesday that will govern how institutions of higher education and K-12 schools handle students’ accusations of sexual misconduct.

Biden and his backers now say that when a sexual misconduct allegation is made, the accuser needs to be heard and respected. But importantly, the accuser’s claims need to be subject to rigorous investigation free of any presumption of guilt. After all, our entire justice system is based on the principle that anyone accused of a crime is presumed innocent until proven guilty.

The purpose of the new Education Department rules – issued under the authority of the federal anti-discrimination statute known as Title IX – is to ensure that “every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” Education Secretary Betsy DeVos said.

In order to ensure that guilt is not predetermined, the rules guarantee due process for accused students – something that was sorely lacking under the Obama administration’s 2011 guidance on the same topic.

The new due process requirements for universities include: the presumption of innocence; written notice of the allegations; an opportunity for the accuser and accused to review the evidence; a live hearing; an impartial decision-maker; and the right of the accused and accuser to each be represented by an adviser who can cross-examine and challenge evidence, subject to the typical “rape shield” exceptions.

The accuser is also protected from having to come face-to-face with the accused during the hearing and is not required to divulge any medical or psychological records. Schools are required to respond promptly to all reports of sexual misconduct and to investigate all complaints filed.

 

The new rules also increase transparency. Colleges are required to disclose the materials used to train their Title IX staff. Transcripts or recordings of hearings must be kept and made available to the parties. And the parties cannot be prohibited from speaking about the allegations.

Compare that to the Obama administration guidance. The guidance came in a “Dear Colleague letter” that did not go through the notice and comment process required for regulations and was withdrawn in 2017. The letter encouraged schools to deny due process protections to accused students – even when they faced expulsion – and mandated the lowest possible standard of proof for conviction.

As a result, accused students were commonly denied the presumption of innocence and even access to evidence favorable to their defense, as well as the details of the charges against them.

The 2011 letter was inspired by the same “women need to be believed” mantra that we’ve been hearing from Democrats and their allies until very recently. The most notable example came when Christine Blasey Ford alleged now-Supreme Court Justice Brett Kavanaugh had sexually assaulted her when both were teenagers. Exactly like Biden, Kavanaugh vehemently denied the allegation against him.

Biden’s take on Ford was typical of comments Democrats made during Kavanaugh’s Senate confirmation hearing for a seat on the Supreme Court: “You’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts,” Biden said.

Hence, it’s not surprising that Democrats liked the Obama guidance, despite their traditional support for due process (even for illegal immigrants), and attacked Secretary DeVos’ proposal for new rules in November 2018.

One of the critics of the proposed new rules was Joe Biden, who championed the 2011 guidance as vice president. This is an interesting stance for someone whose inappropriate touching could easily lead to a Title IX hearing if he were a student.

House Speaker Nancy Pelosi, D-Calif., joined in the criticism, characterizing the proposed Education Department rules and their due process guarantees as “utter contempt for survivor justice.”

Actress and #MeToo activist Alyssa Milano called the proposed regulations “Betsy’s s—– gift.”

Yet those same Democrats and their countless like-minded colleagues are now calling for due process for Joe Biden, the presumptive Democratic nominee for president in the November election.

Addressing the allegation against Biden, Pelosi paid lip service to “the idea that women will be heard and be listened to,” but added that “there’s also due process.”

Milano responded to the allegation with a sudden realization, saying: “So we have to find this balance in the ‘believe women movement’ and also giving men their due process. And, you know, realizing that we’re destroying lives, if we publicly don’t go through the right steps in order to find out if an accusation is credible or not.”

Even Biden was not afraid of looking like a hypocrite. Asked about the allegation against him on MSNBC, he qualified “believing the woman” by adding “then it’s vetted, looked into.”

Given this change of heart in recent weeks, Democrats and their allies might have rethought their opposition to the new Title IX rules. But the early indications, following Wednesday’s release of the finalized regulations, indicate otherwise.

Biden immediately denounced the rules, saying they would “strip survivors of their rights,” and vowed to reverse them. Similarly, Sen. Patty Murray, D-Wash., said “this rule is not about ‘restoring balance,’ this is about silencing survivors.”

You’d think that Joe Biden would finally understand that only a fair adjudication process can determine which party in an alleged sexual assault is the true survivor of an injustice.

Instead, Biden, Murray and their colleagues continue to mischaracterize due process, the linchpin of American justice, as “silencing” the accuser – at least when the person who is accused is not a prominent Democrat.

Joe Biden wants the presumption of innocence when he is accused of sexual assault, but doesn’t want students accused of sexual misconduct to get the same right.

Source: https://www.foxnews.com/opinion/curt-levey-ed-dept-wants-students-accused-of-sexual-misconduct-to-have-rights-joe-biden-wants-for-himself

Categories
Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Stalking Title IX

Title IX Regulatory Text — 34 CFR 106

PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

1. The authority citation for part 106 continues to read as follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.

2. Section 106.3 is amended by revising paragraph (a) to read as follows:

§106.3 Remedial and affirmative action and self-evaluation.

(a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated
against persons on the basis of sex in an education program or activity under this part, or
otherwise violated this part, such recipient must take such remedial action as the Assistant
Secretary deems necessary to remedy the violation, consistent with 20 U.S.C. 1682.

* * * * *

3. Section 106.6 is amended by revising the section heading and adding paragraphs (d),
(e), (f), (g), and (h) to read as follows:
§ 106.6 Effect of other requirements and preservation of rights.

* * * * *

(d) Constitutional protections. Nothing in this part requires a recipient to:
(1) Restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution;
(2) Deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution; or
(3) Restrict any other rights guaranteed against government action by the U.S.
Constitution.
(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family
Educational Rights and Privacy Act (FERPA). The obligation to comply with this part is not
obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR
part 99.
(f) Title VII of the Civil Rights Act of 1964. Nothing in this part may be read in derogation
of any individual’s rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
or any regulations promulgated thereunder.
(g) Exercise of rights by parents or guardians. Nothing in this part may be read in
derogation of any legal right of a parent or guardian to act on behalf of a “complainant,”
“respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but
not limited to filing a formal complaint.
(h) Preemptive effect. To the extent of a conflict between State or local law and title IX as
implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44,
and 106.45 is not obviated or alleviated by any State or local law.

*****

4. Section 106.8 is revised to read as follows:
§ 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance
procedures.
(a) Designation of coordinator. Each recipient must designate and authorize at least one
employee to coordinate its efforts to comply with its responsibilities under this part, which
employee must be referred to as the “Title IX Coordinator.” The recipient must notify applicants
for admission and employment, students, parents or legal guardians of elementary and secondary
school students, employees, and all unions or professional organizations holding collective
bargaining or professional agreements with the recipient, of the name or title, office address,
electronic mail address, and telephone number of the employee or employees designated as the
Title IX Coordinator pursuant to this paragraph. Any person may report sex discrimination,
including sexual harassment (whether or not the person reporting is the person alleged to be the
victim of conduct that could constitute sex discrimination or sexual harassment), in person, by
mail, by telephone, or by electronic mail, using the contact information listed for the Title IX
Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s
verbal or written report. Such a report may be made at any time (including during non-business
hours) by using the telephone number or electronic mail address, or by mail to the office address,
listed for the Title IX Coordinator.
(b) Dissemination of policy—(1) Notification of policy. Each recipient must notify
persons entitled to a notification under paragraph (a) of this section that the recipient does not
discriminate on the basis of sex in the education program or activity that it operates, and that it is
required by title IX and this part not to discriminate in such a manner. Such notification must
state that the requirement not to discriminate in the education program or activity extends to
admission (unless subpart C of this part does not apply) and employment, and that inquiries
about the application of title IX and this part to such recipient may be referred to the recipient’s
Title IX Coordinator, to the Assistant Secretary, or both.
(2) Publications. (i) Each recipient must prominently display the contact information
required to be listed for the Title IX Coordinator under paragraph (a) of this section and the
policy described in paragraph (b)(1) of this section on its website, if any, and in each handbook
or catalog that it makes available to persons entitled to a notification under paragraph (a) of this
section.
(ii) A recipient must not use or distribute a publication stating that the recipient treats
applicants, students, or employees differently on the basis of sex except as such treatment is
permitted by title IX or this part.
(c) Adoption of grievance procedures. A recipient must adopt and publish grievance
procedures that provide for the prompt and equitable resolution of student and employee
complaints alleging any action that would be prohibited by this part and a grievance process that
complies with § 106.45 for formal complaints as defined in § 106.30. A recipient must provide to
persons entitled to a notification under paragraph (a) of this section notice of the recipient’s
grievance procedures and grievance process, including how to report or file a complaint of sex
discrimination, how to report or file a formal complaint of sexual harassment, and how the
recipient will respond.
(d) Application outside the United States. The requirements of paragraph (c) of this
section apply only to sex discrimination occurring against a person in the United States.
5. Section 106.9 is revised to read as follows:
§ 106.9 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

6. Section 106.12 is amended by revising paragraph (b) to read as follows:
§ 106.12 Educational institutions controlled by religious organizations.

* * * * *

(b) Assurance of exemption. An educational institution that seeks assurance of the
exemption set forth in paragraph (a) of this section may do so by submitting in writing to the
Assistant Secretary a statement by the highest ranking official of the institution, identifying the
provisions of this part that conflict with a specific tenet of the religious organization. An
institution is not required to seek assurance from the Assistant Secretary in order to assert such
an exemption. In the event the Department notifies an institution that it is under investigation for
noncompliance with this part and the institution wishes to assert an exemption set forth in
paragraph (a) of this section, the institution may at that time raise its exemption by submitting in
writing to the Assistant Secretary a statement by the highest ranking official of the institution,
identifying the provisions of this part which conflict with a specific tenet of the religious
organization, whether or not the institution had previously sought assurance of an exemption
from the Assistant Secretary.

* * * * *

7. Add § 106.18 to subpart B to read as follows:
§ 106.18 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

8. Add § 106.24 to subpart C to read as follows:
§ 106.24 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.
9. Add § 106.30 to subpart D to read as follows:

§ 106.30 Definitions.
(a) As used in this part:
Actual knowledge means notice of sexual harassment or allegations of sexual harassment
to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute
corrective measures on behalf of the recipient, or to any employee of an elementary and
secondary school. Imputation of knowledge based solely on vicarious liability or constructive
notice is insufficient to constitute actual knowledge. This standard is not met when the only
official of the recipient with actual knowledge is the respondent. The mere ability or obligation
to report sexual harassment or to inform a student about how to report sexual harassment, or
having been trained to do so, does not qualify an individual as one who has authority to institute
corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is
not limited to, a report of sexual harassment to the Title IX Coordinator as described in §
106.8(a).
Complainant means an individual who is alleged to be the victim of conduct that could
constitute sexual harassment.
Consent. The Assistant Secretary will not require recipients to adopt a particular
definition of consent with respect to sexual assault, as referenced in this section.
Formal complaint means a document filed by a complainant or signed by the Title IX
Coordinator alleging sexual harassment against a respondent and requesting that the recipient
investigate the allegation of sexual harassment. At the time of filing a formal complaint, a
complainant must be participating in or attempting to participate in the education program or
activity of the recipient with which the formal complaint is filed. A formal complaint may be
filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact
information required to be listed for the Title IX Coordinator under § 106.8(a), and by any
additional method designated by the recipient. As used in this paragraph, the phrase “document
filed by a complainant” means a document or electronic submission (such as by electronic mail
or through an online portal provided for this purpose by the recipient) that contains the
complainant’s physical or digital signature, or otherwise indicates that the complainant is the
person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the
Title IX Coordinator is not a complainant or otherwise a party under this part or under § 106.45,
and must comply with the requirements of this part, including § 106.45(b)(1)(iii).
Respondent means an individual who has been reported to be the perpetrator of conduct
that could constitute sexual harassment.
Sexual harassment means conduct on the basis of sex that satisfies one or more of the
following:
(1) An employee of the recipient conditioning the provision of an aid, benefit, or service
of the recipient on an individual’s participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal access to the recipient’s
education program or activity; or
(3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as
defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or
“stalking” as defined in 34 U.S.C. 12291(a)(30).
Supportive measures means non-disciplinary, non-punitive individualized services
offered as appropriate, as reasonably available, and without fee or charge to the complainant or
the respondent before or after the filing of a formal complaint or where no formal complaint has
been filed. Such measures are designed to restore or preserve equal access to the recipient’s
education program or activity without unreasonably burdening the other party, including
measures designed to protect the safety of all parties or the recipient’s educational environment,
or deter sexual harassment. Supportive measures may include counseling, extensions of
deadlines or other course-related adjustments, modifications of work or class schedules, campus
escort services, mutual restrictions on contact between the parties, changes in work or housing
locations, leaves of absence, increased security and monitoring of certain areas of the campus,
and other similar measures. The recipient must maintain as confidential any supportive measures
provided to the complainant or respondent, to the extent that maintaining such confidentiality
would not impair the ability of the recipient to provide the supportive measures. The Title IX
Coordinator is responsible for coordinating the effective implementation of supportive
measures.
(b) As used in §§ 106.44 and 106.45:
Elementary and secondary school means a local educational agency (LEA), as defined in
the Elementary and Secondary Education Act of 1965, as amended by the Every Student
Succeeds Act, a preschool, or a private elementary or secondary school.
Postsecondary institution means an institution of graduate higher education as defined in
§ 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an
institution of professional education as defined in § 106.2(n), or an institution of vocational
education as defined in § 106.2(o).
10. Add § 106.44 to subpart D to read as follows:
§ 106.44 Recipient’s response to sexual harassment.
(a) General response to sexual harassment. A recipient with actual knowledge of sexual
harassment in an education program or activity of the recipient against a person in the United
States, must respond promptly in a manner that is not deliberately indifferent. A recipient is
deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light
of the known circumstances. For the purposes of this section, §§ 106.30, and 106.45, “education
program or activity” includes locations, events, or circumstances over which the recipient
exercised substantial control over both the respondent and the context in which the sexual
harassment occurs, and also includes any building owned or controlled by a student organization
that is officially recognized by a postsecondary institution. A recipient’s response must treat
complainants and respondents equitably by offering supportive measures as defined in § 106.30
to a complainant, and by following a grievance process that complies with § 106.45 before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. The Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as defined in § 106.30, consider
the complainant’s wishes with respect to supportive measures, inform the complainant of the
availability of supportive measures with or without the filing of a formal complaint, and explain
to the complainant the process for filing a formal complaint. The Department may not deem a
recipient to have satisfied the recipient’s duty to not be deliberately indifferent under this part
based on the recipient’s restriction of rights protected under the U.S. Constitution, including the
First Amendment, Fifth Amendment, and Fourteenth Amendment.
(b) Response to a formal complaint. (1) In response to a formal complaint, a recipient
must follow a grievance process that complies with § 106.45. With or without a formal
complaint, a recipient must comply with § 106.44(a).
(2) The Assistant Secretary will not deem a recipient’s determination regarding
responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of
discrimination under title IX by the recipient, solely because the Assistant Secretary would have
reached a different determination based on an independent weighing of the evidence.
(c) Emergency removal. Nothing in this part precludes a recipient from removing a
respondent from the recipient’s education program or activity on an emergency basis, provided
that the recipient undertakes an individualized safety and risk analysis, determines that an
immediate threat to the physical health or safety of any student or other individual arising from
the allegations of sexual harassment justifies removal, and provides the respondent with notice
and an opportunity to challenge the decision immediately following the removal. This provision
may not be construed to modify any rights under the Individuals with Disabilities Education Act,
Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
(d) Administrative leave. Nothing in this subpart precludes a recipient from placing a
non-student employee respondent on administrative leave during the pendency of a grievance
process that complies with § 106.45. This provision may not be construed to modify any rights
under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.
11. Add § 106.45 to subpart D to read as follows:
§ 106.45 Grievance process for formal complaints of sexual harassment.
(a) Discrimination on the basis of sex. A recipient’s treatment of a complainant or a
respondent in response to a formal complaint of sexual harassment may constitute discrimination
on the basis of sex under title IX.
(b) Grievance process. For the purpose of addressing formal complaints of sexual
harassment, a recipient’s grievance process must comply with the requirements of this section.
Any provisions, rules, or practices other than those required by this section that a recipient
adopts as part of its grievance process for handling formal complaints of sexual harassment as
defined in § 106.30, must apply equally to both parties.
(1) Basic requirements for grievance process. A recipient’s grievance process must—
(i) Treat complainants and respondents equitably by providing remedies to a complainant
where a determination of responsibility for sexual harassment has been made against the
respondent, and by following a grievance process that complies with this section before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. Remedies must be designed to restore or preserve
equal access to the recipient’s education program or activity. Such remedies may include the
same individualized services described in § 106.30 as “supportive measures”; however, remedies
need not be non-disciplinary or non-punitive and need not avoid burdening the respondent;
(ii) Require an objective evaluation of all relevant evidence – including both inculpatory
and exculpatory evidence – and provide that credibility determinations may not be based on a
person’s status as a complainant, respondent, or witness;
(iii) Require that any individual designated by a recipient as a Title IX Coordinator,
investigator, decision-maker, or any person designated by a recipient to facilitate an informal
resolution process, not have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent. A recipient must ensure that
Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal
resolution process, receive training on the definition of sexual harassment in § 106.30, the scope
of the recipient’s education program or activity, how to conduct an investigation and grievance
process including hearings, appeals, and informal resolution processes, as applicable, and how to
serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest,
and bias. A recipient must ensure that decision-makers receive training on any technology to be
used at a live hearing and on issues of relevance of questions and evidence, including when
questions and evidence about the complainant’s sexual predisposition or prior sexual behavior
are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that
investigators receive training on issues of relevance to create an investigative report that fairly
summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials
used to train Title IX Coordinators, investigators, decision-makers, and any person who
facilitates an informal resolution process, must not rely on sex stereotypes and must promote
impartial investigations and adjudications of formal complaints of sexual harassment;
(iv) Include a presumption that the respondent is not responsible for the alleged conduct
until a determination regarding responsibility is made at the conclusion of the grievance process;
(v) Include reasonably prompt time frames for conclusion of the grievance process,
including reasonably prompt time frames for filing and resolving appeals and informal resolution
processes if the recipient offers informal resolution processes, and a process that allows for the
temporary delay of the grievance process or the limited extension of time frames for good cause
with written notice to the complainant and the respondent of the delay or extension and the
reasons for the action. Good cause may include considerations such as the absence of a party, a
party’s advisor, or a witness; concurrent law enforcement activity; or the need for language
assistance or accommodation of disabilities;
(vi) Describe the range of possible disciplinary sanctions and remedies or list the possible
disciplinary sanctions and remedies that the recipient may implement following any
determination of responsibility;
(vii) State whether the standard of evidence to be used to determine responsibility is the
preponderance of the evidence standard or the clear and convincing evidence standard, apply the
same standard of evidence for formal complaints against students as for formal complaints
against employees, including faculty, and apply the same standard of evidence to all formal
complaints of sexual harassment;
(viii) Include the procedures and permissible bases for the complainant and respondent to
appeal;
(ix) Describe the range of supportive measures available to complainants and
respondents; and
(x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute,
or seek disclosure of, information protected under a legally recognized privilege, unless the
person holding such privilege has waived the privilege.
(2) Notice of allegations—(i) Upon receipt of a formal complaint, a recipient must
provide the following written notice to the parties who are known:
(A) Notice of the recipient’s grievance process that complies with this section, including
any informal resolution process.
(B) Notice of the allegations of sexual harassment potentially constituting sexual
harassment as defined in § 106.30, including sufficient details known at the time and with
sufficient time to prepare a response before any initial interview. Sufficient details include the
identities of the parties involved in the incident, if known, the conduct allegedly constituting
sexual harassment under § 106.30, and the date and location of the alleged incident, if known.
The written notice must include a statement that the respondent is presumed not responsible for
the alleged conduct and that a determination regarding responsibility is made at the conclusion of
the grievance process. The written notice must inform the parties that they may have an advisor
of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of
this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section. The
written notice must inform the parties of any provision in the recipient’s code of conduct that
prohibits knowingly making false statements or knowingly submitting false information during
the grievance process.
(ii) If, in the course of an investigation, the recipient decides to investigate allegations
about the complainant or respondent that are not included in the notice provided pursuant to
paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional
allegations to the parties whose identities are known.
(3) Dismissal of a formal complaint—(i) The recipient must investigate the allegations in
a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual
harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education
program or activity, or did not occur against a person in the United States, then the recipient
must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment
under title IX or this part; such a dismissal does not preclude action under another provision of
the recipient’s code of conduct.
(ii) The recipient may dismiss the formal complaint or any allegations therein, if at any
time during the investigation or hearing: a complainant notifies the Title IX Coordinator in
writing that the complainant would like to withdraw the formal complaint or any allegations
therein; the respondent is no longer enrolled or employed by the recipient; or specific
circumstances prevent the recipient from gathering evidence sufficient to reach a determination
as to the formal complaint or allegations therein.
(iii) Upon a dismissal required or permitted pursuant to paragraph (b)(3)(i) or (b)(3)(ii) of
this section, the recipient must promptly send written notice of the dismissal and reason(s)
therefor simultaneously to the parties.
(4) Consolidation of formal complaints. A recipient may consolidate formal complaints
as to allegations of sexual harassment against more than one respondent, or by more than one
complainant against one or more respondents, or by one party against the other party, where the
allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance
process involves more than one complainant or more than one respondent, references in this
section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.
(5) Investigation of a formal complaint. When investigating a formal complaint and
throughout the grievance process, a recipient must—
(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to
reach a determination regarding responsibility rest on the recipient and not on the parties
provided that the recipient cannot access, consider, disclose, or otherwise use a party’s records
that are made or maintained by a physician, psychiatrist, psychologist, or other recognized
professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or
assisting in that capacity, and which are made and maintained in connection with the provision of
treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so
for a grievance process under this section (if a party is not an “eligible student,” as defined in 34
CFR 99.3, then the recipient must obtain the voluntary, written consent of a “parent,” as defined
in 34 CFR 99.3);
(ii) Provide an equal opportunity for the parties to present witnesses, including fact and
expert witnesses, and other inculpatory and exculpatory evidence;
(iii) Not restrict the ability of either party to discuss the allegations under investigation or
to gather and present relevant evidence;
(iv) Provide the parties with the same opportunities to have others present during any
grievance proceeding, including the opportunity to be accompanied to any related meeting or
proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and
not limit the choice or presence of advisor for either the complainant or respondent in any
meeting or grievance proceeding; however, the recipient may establish restrictions regarding the
extent to which the advisor may participate in the proceedings, as long as the restrictions apply
equally to both parties;
(v) Provide, to a party whose participation is invited or expected, written notice of the
date, time, location, participants, and purpose of all hearings, investigative interviews, or other
meetings, with sufficient time for the party to prepare to participate;
(vi) Provide both parties an equal opportunity to inspect and review any evidence
obtained as part of the investigation that is directly related to the allegations raised in a formal
complaint, including the evidence upon which the recipient does not intend to rely in reaching a
determination regarding responsibility and inculpatory or exculpatory evidence whether obtained
from a party or other source, so that each party can meaningfully respond to the evidence prior to
conclusion of the investigation. Prior to completion of the investigative report, the recipient must
send to each party and the party’s advisor, if any, the evidence subject to inspection and review
in an electronic format or a hard copy, and the parties must have at least 10 days to submit a
written response, which the investigator will consider prior to completion of the investigative
report. The recipient must make all such evidence subject to the parties’ inspection and review
available at any hearing to give each party equal opportunity to refer to such evidence during the
hearing, including for purposes of cross-examination; and
(vii) Create an investigative report that fairly summarizes relevant evidence and, at least
10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or
other time of determination regarding responsibility, send to each party and the party’s advisor, if
any, the investigative report in an electronic format or a hard copy, for their review and written
response.
(6) Hearings. (i) For postsecondary institutions, the recipient’s grievance process must
provide for a live hearing. At the live hearing, the decision-maker(s) must permit each party’s
advisor to ask the other party and any witnesses all relevant questions and follow-up questions,
including those challenging credibility. Such cross-examination at the live hearing must be
conducted directly, orally, and in real time by the party’s advisor of choice and never by a party
personally, notwithstanding the discretion of the recipient under paragraph (b)(5)(iv) of this
section to otherwise restrict the extent to which advisors may participate in the proceedings. At
the request of either party, the recipient must provide for the live hearing to occur with the
parties located in separate rooms with technology enabling the decision-maker(s) and parties to
simultaneously see and hear the party or the witness answering questions. Only relevant crossexamination and other questions may be asked of a party or witness. Before a complainant,
respondent, or witness answers a cross-examination or other question, the decision-maker(s)
must first determine whether the question is relevant and explain any decision to exclude a
question as not relevant. If a party does not have an advisor present at the live hearing, the
recipient must provide without fee or charge to that party, an advisor of the recipient’s choice,
who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that
party. Questions and evidence about the complainant’s sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the complainant’s prior
sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. If a party or witness does not submit to cross-examination at the live hearing, the
decision-maker(s) must not rely on any statement of that party or witness in reaching a
determination regarding responsibility; provided, however, that the decision-maker(s) cannot
draw an inference about the determination regarding responsibility based solely on a party’s or
witness’s absence from the live hearing or refusal to answer cross-examination or other
questions. Live hearings pursuant to this paragraph may be conducted with all parties physically
present in the same geographic location or, at the recipient’s discretion, any or all parties,
witnesses, and other participants may appear at the live hearing virtually, with technology
enabling participants simultaneously to see and hear each other. Recipients must create an audio
or audiovisual recording, or transcript, of any live hearing and make it available to the parties for
inspection and review.
(ii) For recipients that are elementary and secondary schools, and other recipients that are
not postsecondary institutions, the recipient’s grievance process may, but need not, provide for a
hearing. With or without a hearing, after the recipient has sent the investigative report to the
parties pursuant to paragraph (b)(5)(vii) of this section and before reaching a determination
regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit
written, relevant questions that a party wants asked of any party or witness, provide each party
with the answers, and allow for additional, limited follow-up questions from each party. With or
without a hearing, questions and evidence about the complainant’s sexual predisposition or prior
sexual behavior are not relevant, unless such questions and evidence about the complainant’s
prior sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. The decision-maker(s) must explain to the party proposing the questions any
decision to exclude a question as not relevant.
(7) Determination regarding responsibility. (i) The decision-maker(s), who cannot be the
same person(s) as the Title IX Coordinator or the investigator(s), must issue a written
determination regarding responsibility. To reach this determination, the recipient must apply the
standard of evidence described in paragraph (b)(1)(vii) of this section.
(ii) The written determination must include—
(A) Identification of the allegations potentially constituting sexual harassment as defined
in § 106.30;
2027
(B) A description of the procedural steps taken from the receipt of the formal complaint
through the determination, including any notifications to the parties, interviews with parties and
witnesses, site visits, methods used to gather other evidence, and hearings held;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of the recipient’s code of conduct to the facts;
(E) A statement of, and rationale for, the result as to each allegation, including a
determination regarding responsibility, any disciplinary sanctions the recipient imposes on the
respondent, and whether remedies designed to restore or preserve equal access to the recipient’s
education program or activity will be provided by the recipient to the complainant; and
(F) The recipient’s procedures and permissible bases for the complainant and respondent
to appeal.
(iii) The recipient must provide the written determination to the parties simultaneously.
The determination regarding responsibility becomes final either on the date that the recipient
provides the parties with the written determination of the result of the appeal, if an appeal is
filed, or if an appeal is not filed, the date on which an appeal would no longer be considered
timely.
(iv) The Title IX Coordinator is responsible for effective implementation of any
remedies.
(8) Appeals. (i) A recipient must offer both parties an appeal from a determination
regarding responsibility, and from a recipient’s dismissal of a formal complaint or any
allegations therein, on the following bases:
(A) Procedural irregularity that affected the outcome of the matter;
(B) New evidence that was not reasonably available at the time the determination
regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of
interest or bias for or against complainants or respondents generally or the individual
complainant or respondent that affected the outcome of the matter.
(ii) A recipient may offer an appeal equally to both parties on additional bases.
(iii) As to all appeals, the recipient must:
(A) Notify the other party in writing when an appeal is filed and implement appeal
procedures equally for both parties;
(B) Ensure that the decision-maker(s) for the appeal is not the same person as the
decision-maker(s) that reached the determination regarding responsibility or dismissal, the
investigator(s), or the Title IX Coordinator;
(C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth
in paragraph (b)(1)(iii) of this section;
(D) Give both parties a reasonable, equal opportunity to submit a written statement in
support of, or challenging, the outcome;
(E) Issue a written decision describing the result of the appeal and the rationale for the
result; and
(F) Provide the written decision simultaneously to both parties.
(9) Informal resolution. A recipient may not require as a condition of enrollment or
continuing enrollment, or employment or continuing employment, or enjoyment of any other
right, waiver of the right to an investigation and adjudication of formal complaints of sexual
harassment consistent with this section. Similarly, a recipient may not require the parties to
participate in an informal resolution process under this section and may not offer an informal
resolution process unless a formal complaint is filed. However, at any time prior to reaching a
determination regarding responsibility the recipient may facilitate an informal resolution process,
such as mediation, that does not involve a full investigation and adjudication, provided that the
recipient –
(i) Provides to the parties a written notice disclosing: the allegations, the requirements of
the informal resolution process including the circumstances under which it precludes the parties
from resuming a formal complaint arising from the same allegations, provided, however, that at
any time prior to agreeing to a resolution, any party has the right to withdraw from the informal
resolution process and resume the grievance process with respect to the formal complaint, and
any consequences resulting from participating in the informal resolution process, including the
records that will be maintained or could be shared;
(ii) Obtains the parties’ voluntary, written consent to the informal resolution process; and
(iii) Does not offer or facilitate an informal resolution process to resolve allegations that
an employee sexually harassed a student.
(10) Recordkeeping. (i) A recipient must maintain for a period of seven years records of –
(A) Each sexual harassment investigation including any determination regarding
responsibility and any audio or audiovisual recording or transcript required under paragraph
(b)(6)(i) of this section, any disciplinary sanctions imposed on the respondent, and any remedies
provided to the complainant designed to restore or preserve equal access to the recipient’s
education program or activity;
(B) Any appeal and the result therefrom;
(C) Any informal resolution and the result therefrom; and
(D) All materials used to train Title IX Coordinators, investigators, decision-makers, and
any person who facilitates an informal resolution process. A recipient must make these training
materials publicly available on its website, or if the recipient does not maintain a website the
recipient must make these materials available upon request for inspection by members of the
public.
(ii) For each response required under § 106.44, a recipient must create, and maintain for a
period of seven years, records of any actions, including any supportive measures, taken in
response to a report or formal complaint of sexual harassment. In each instance, the recipient
must document the basis for its conclusion that its response was not deliberately indifferent, and
document that it has taken measures designed to restore or preserve equal access to the
recipient’s education program or activity. If a recipient does not provide a complainant with
supportive measures, then the recipient must document the reasons why such a response was not
clearly unreasonable in light of the known circumstances. The documentation of certain bases or
measures does not limit the recipient in the future from providing additional explanations or
detailing additional measures taken.

12. Add § 106.46 to subpart D to read as follows:
§ 106.46 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

13. Add § 106.62 to subpart E to read as follows:
§ 106.62 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

14. Subpart F is revised to read as follows:
Subpart F–Retaliation
Sec.
106.71 Retaliation
106.72 Severability

Subpart F–Retaliation

§ 106.71 Retaliation.
(a) Retaliation prohibited. No recipient or other person may intimidate, threaten, coerce,
or discriminate against any individual for the purpose of interfering with any right or privilege
secured by title IX or this part, or because the individual has made a report or complaint,
testified, assisted, or participated or refused to participate in any manner in an investigation,
proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination,
including charges against an individual for code of conduct violations that do not involve sex
discrimination or sexual harassment, but arise out of the same facts or circumstances as a report
or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the
purpose of interfering with any right or privilege secured by title IX or this part, constitutes
retaliation. The recipient must keep confidential the identity of any individual who has made a
report or complaint of sex discrimination, including any individual who has made a report or
filed a formal complaint of sexual harassment, any complainant, any individual who has been
reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as
may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part
99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct
of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging
retaliation may be filed according to the grievance procedures for sex discrimination required to
be adopted under § 106.8(c).
(b) Specific circumstances. (1) The exercise of rights protected under the First
Amendment does not constitute retaliation prohibited under paragraph (a) of this section.
(2) Charging an individual with a code of conduct violation for making a materially false
statement in bad faith in the course of a grievance proceeding under this part does not constitute
retaliation prohibited under paragraph (a) of this section, provided, however, that a determination
regarding responsibility, alone, is not sufficient to conclude that any party made a materially
false statement in bad faith.

§ 106.72 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

15. Add subpart G to read as follows:
Subpart G – Procedures
Sec.
106.81 Procedures
106.82 Severability

Subpart G – Procedures
§ 106.81 Procedures.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are
hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR
100.6-100.11 and 34 CFR part 101. The definitions in § 106.30 do not apply to 34 CFR 100.6-
100.11 and 34 CFR part 101.

§ 106.82 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.
Subject Index to Title IX Preamble and Regulation [Removed]
16. Remove the Subject Index to Title IX Preamble and Regulation.
17. In addition to the amendments set forth above, in 34 CFR part 106, remove the
parenthetical authority citation at the ends of §§ 106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, ,
106.11, 106.12, 106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 106.32,
106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 106.41, 106.42, 106.43, 106.51,
106.52, 106.53, 106.54, 106.55, 106.56, 106.57, 106.58, 106.59, 106.60, and 106.61.

Source: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf , pages 2008-2033.

Categories
Campus Dating Violence Department of Education Domestic Violence Due Process Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

PR: New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

 New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

WASHINGTON / May 8, 2020 – SAVE is today releasing an analysis that enumerates the many ways by which the newly released Title IX regulation will benefit victims of campus sexual assault. Title IX is the federal law that bans sex discrimination in schools. The new regulation was released on Wednesday by the Department of Education (1).

Titled, “Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways,” the SAVE report identifies seven broad ways that the new federal regulation benefits victims and survivors:

  1. Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
  2. Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
  3. Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
  4. Defines the procedures to properly investigate and adjudicate such complaints.
  5. Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint if desired.
  6. Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
  7. Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints:

  • A student who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
  • One client was charged for sexual misconduct for touching a student on her elbow at a dance because he was trying to move her out of the way of another person.
  • One male student was charged for giving an honest compliment to a friend on her outfit.

The new SAVE document identifies 28 legally enforceable provisions in the new regulation that will benefit and support victims. Three examples of these provisions are: “Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution;” “Complainants are assured that respondents that are deemed an immediate threat to safety will be removed from campus;” and “Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf.”

SAVE has identified numerous cases in which campus disciplinary committees, sometimes derisively referred to as “kangaroo courts,” have shortchanged victims (2). The Independent Women’s Forum argues that “Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.” (3)

There is no evidence that the previous campus policies have succeeded in reducing campus sexual assault. A recent report from the American Association of Universities revealed an actual increase in campus sexual assaults from 2015 to 2019 (4).

The SAVE analysis is available online: http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

Links:

  1. https://www2.ed.gov/about/offices/list/ocr/newsroom.html
  2. http://www.saveservices.org/sexual-assault/victims-deserve-better/
  3. https://www.iwf.org/2020/05/06/does-due-process-silence-survivors/
  4. https://www.aau.edu/newsroom/press-releases/aau-releases-2019-survey-sexual-assault-and-misconduct
Categories
Title IX

Education Secretary Betsy DeVos Issues New Title IX Rules To Protect Free Speech, Due Process for Accused Students

Screen Shot 2020-05-06 at 12.09.17 PM
(Screenshot via Youtube)

On Wednesday, Education Secretary Betsy DeVos formally announced the new rules related to Title IX—the federal statute that governs sexual misconduct in schools—thus completing a process that began more than a year ago, when the government first unveiled its proposed changes.

The new rules aim to protect victims of sexual misconduct while also establishing fairer procedures for the accused. The department believes the new rules will “balance the scales of justice on campuses across America,” a Department of Education spokesperson said during today’s press briefing.

Justin Dillon, an attorney with the firm KaiserDillon who specializes in campus misconduct adjudication, hailed the new rules as tremendously well thought out.

“Nothing Betsy DeVos has done since she took office will have a more lasting effect on people’s lives than this,” Dillon tells Reason. “It’s frankly inspiring to see how hard she and her staff have worked to get these regulations done and get them right.”

The new rules are similar to what the Department of Education proposed in November 2018. Most notably, the government has abolished the single-investigator model, which previously permitted a sole university official to investigate an accusation of misconduct, decide which evidence to consider, and produce a report recommending an outcome. Under the new rules, the final decision maker must be a different person than the investigator, and a finding of responsibility can only be rendered after a hearing in which a representative for the accused is able to pose questions to the accuser—i.e., cross-examination.

Importantly, the new rules narrow the scope of actionable sexual harassment to exclude conduct that ought to be protected under the First Amendment. Obama-era guidance had defined sexual harassment as “any unwelcome conduct of a sexual nature.” The new rules keep this definition but add that the conduct must be offensive to a reasonable person, severe, and pervasive. In practice, this should mean that schools will no longer initiate Title IX investigations that impugn free speech.

“This new rule strikes a powerful blow against campus censorship,” said a Department of Education spokesperson. “Campus free speech must not be sacrificed in the misguided pursuit of any other value.”

The new rules will also end the pernicious practice of universities initiating Title IX investigations in cases where the alleged victims are not interested in this course of action. Under previous guidance, any university official who became aware of a potential Title IX issue had to report it, thus triggering an investigation. Under the new guidance, school employees should make the Title IX office aware of potential issues, which will prompt these officials to reach out and offer support to victims. But a formal complaint that results in adjudication can only be initiated by the victim or their parents/legal guardians. This approach gives agency to victims and prevents schools from taking actions contrary to their wishes.

Nevertheless, victims’ rights advocates intend to fight the new rules in court. Catherine Lhamon, current chair of the U.S. Commission on Civil Rights and the former Obama administration official who presided over the changes that compromised due process, slammed the reforms as “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” That’s a gross misrepresentation of what DeVos has done, though not an unexpected one, given how irresponsibly activists and members of the media have characterized DeVos’s work.

It remains to be seen whether colleges and universities will carefully follow the new rules—much is uncertain about the future of higher education right now. Nevertheless, today is a big day for the restoration of basic due process and free speech rights in schools.

The new rules, which take effect in August, are available here.

ROBBY SOAVE is a senior editor at Reason.

Categories
Campus Sexual Assault Title IX

Does Due Process Silence Survivors?

Honest question for those putting out panicked press releases claiming that Betsy DeVos has just silenced rape survivors on college campuses:

How exactly does due process silence anyone?

The new Title IX regulations released today by the Department of Education outline a school’s legal obligation to respond to every report of sexual harassment or assault. They require schools to investigate all complaints and emphasize the importance of supportive measures (such as course adjustments; schedule changes; counseling; no-contact orders; dorm room reassignments; and/or leaves of absence) for all survivors, even those who choose not to file a formal complaint.

They also require schools to adopt investigatory and disciplinary procedures that are fair and unbiased.

So, to which of these procedures do the rules’ opponents object?

— Do they object to informing students of the specific claims against them in a timely manner?

— Do they object to letting accused students present witnesses in their own defense?

— Do they object to letting accused students present potentially exculpatory evidence, such as text messages?

Exactly which of these basic aspects of due process silences or otherwise harms survivors?

Many of the opponents of the new rules say they’re concerned that allowing accused students to question their accuser will retraumatize victims. But cross-examination does not have to be traumatic. In fact, the new rules recommend that college administrative proceedings employ certain “rape shield” protections, such as putting the parties in separate rooms; requiring that the questioning be done by a third-party; and prohibiting questions about an accuser’s unrelated sexual history.

Do the opponents of the rules object to any attempt to test the credibility of an accuser?

The Department of Education’s new Title IX regulations do not “roll back” protections for survivors. Rather, they codify existing case law. As such, they aim to ensure fairness and protect the legitimacy and the integrity of college disciplinary decisions. Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.

These new rules help to do that.

So tell me again how they silence survivors?

 

Source: https://www.iwf.org/2020/05/06/does-due-process-silence-survivors/