Month: May 2020

DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct

Post author By saveadmin
Post date May 6, 2020

Education Secretary Betsy DeVos released final regulations for schools dealing with sexual misconduct, giving them the force of law for the first time and bolstering due-process rights. The rules preserve Education Secretary Betsy DeVos’s broad goals in overhauling Title IX.

By Erica L. Green

May 6, 2020

WASHINGTON — Education Secretary Betsy DeVos on Wednesday issued final rules for how public and private schools and colleges must address allegations of sexual misconduct, locking in protections for accused students and faculty but tempering earlier proposals that critics said would harm victims of assault and harassment.

The rules preserve Ms. DeVos’s broad goals in overhauling Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, by infusing legal standards in disciplinary proceedings that have been left largely to schools to navigate.

The new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which alleged victims and accused perpetrators can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.

Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”

To find a school legally culpable for mishandling allegations, they would have to be proven “deliberately indifferent,” in carrying out mandates to provide support to victims and investigate complaints fairly.

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Ms. DeVos said in a statement. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”

The final rules, which take effect in August, codify for the first time sexual assault grievance proceedings that until now were covered by Education Department guidance and recommendations.

The Obama administration issued a “Dear Colleague” letter in 2011 and a supplementary document in 2014, which defined sexual harassment broadly and held schools liable for incidents they knew about or “reasonably should” have known about. They asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged cross-examination and mediation between victims and accused students.

Victims rights groups said that approach shepherded in a new era of accountability at colleges, putting schools on notice that Title IX did not only address equal access to sports teams. The Obama administration found a pattern of cover-ups and rampant mishandling of Title IX proceedings in both higher education and elementary and secondary schools, and initiated high-profile investigations at schools that carried the threat of losing federal funding.

Fatima Goss Graves, president of the National Women’s Law Center, vowed to fight the new rules in court, saying victims “refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.”

“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone — even during a global pandemic,” Ms. Goss Graves said. “And if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”

When Ms. DeVos rescinded the Obama-era guidance in 2017, she said she acted, in part, to give new rules the force of law. But she also sided with conservatives and other critics who said the Obama guidelines favored accusers and gave little recourse to students accused of wrongdoing. Dozens of students have won court cases against their colleges for violating their rights under the Obama-era rules.

Ms. DeVos’s initial proposals, released in November 2018, elicited more than 120,000 public comments and prompted hundreds of meetings between Education Department officials and advocacy groups.

The final rules changed to address concerns raised by victims rights groups. The department amended provisions that would have allowed schools to ignore allegations of misconduct that occurred off-campus, and officials changed proceedings that critics argued would have re-traumatized victims.

For instance, the department did extend responsibility beyond campus, saying that schools would be obliged to investigate allegations of misconduct that occur in “a building owned or controlled by a student organization that is officially recognized by a postsecondary institution,” such as a fraternity or sorority house.

Jurisdiction also extends to “locations, events, or circumstances” over which the school exercised “substantial control” over students and the activities in which the harassment occurred. However, the rules do exclude actions that happen to students studying abroad.

It also softens initial proposals for cross-examination, which lawyers for accused students believed was crucial. It prohibits students from questioning each other in personal confrontations, leaving that to advisers and lawyers. It also allows colleges to hold hearings virtually, and to grant any request for the two parties to be in separate rooms while the hearing takes place.

In the case of cross-examination, a hearing officer must first decide if the questions are relevant, and questions about a person’s sexual history are not considered relevant unless they could establish consent or prove that someone other than the accused student committed the misconduct.

The final regulations also make exceptions for primary, secondary and other specialized schools, amid concerns that the draft regulations would have subjected small children to the same treatment as young adults.

Those schools are not required to hold a hearing or cross-examinations, though parties must be able to submit written questions. And students in primary and secondary schools can report their claims to any staff member, unlike colleges, where reports must be made to a high-ranking official.

The department maintained a Supreme Court definition of harassment: “Unwelcome conduct that is so severe, pervasive and objectively offensive” that it effectively denies a person access to the school’s education program or activity. But the final rule added that conduct could be harassment if “a reasonable person” would say it was.

The department also clarified that sexual assault, dating violence, domestic violence and stalking are also sexual harassment, and added definitions for the infractions that align with the Clery and Violence Against Women Acts. Those allegations would not have to meet a severe and pervasive standard.

The rules still mandate that schools dismiss complaints that do not meet the sexual harassment definition, even if the allegations are proven true.

The rules bolster the role and visibility of the Title IX coordinator, the main point person for facilitating the complaint process, and allow schools to appoint several staff members to the position. Those staff members are now required to provide “supportive measures” to accusers even if they choose not to go through with a formal complaint.

Cases involving students can be resolved through mediation, but those involving both staff and students cannot.

The rules require that accused students be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk.

The department added an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct. A school cannot punish a student or other complainant for making a claim just because a case resulted in an unfavorable outcome. And schools are warned against disciplining students for actions revealed during Title IX proceeding, such as underage drinking or sexual contact on campus.

The rules are the most concrete and wide-reaching policy measure of Ms. DeVos’s tenure. The Title IX overhaul was a priority for the White House, and President Trump has personally commended Ms. DeVos for the undertaking.

But the rules are almost certain to be challenged. Ms. DeVos’s critics have successfully halted or hindered several of her policies in court by challenging her adherence to federal rules for issuing regulations. Under the Congressional Review Act, the rules could be overturned by a simple majority of the Senate, but that would almost certainly require Democrats to retake control of the presidency and the Senate in the November elections.

PR: 266 Professors Nationwide Issue Call for Prompt Restoration of Free Speech and Due Process on Campus

Post author By saveadmin
Post date May 4, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

266 Professors Nationwide Issue Call for Prompt Restoration of Free Speech and Due Process on Campus

WASHINGTON / May 4, 2020 – A group of 266 distinguished faculty members today is releasing a Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus. The co-signers come from 43 states and represent a broad range of disciplinary backgrounds and political persuasions. The Resolution concludes with an urgent appeal: “the undersigned professors call on lawmakers and university administrators to assure the prompt implementation of new policies that will clarify grievance procedures, enhance free speech, and embrace fairness for all.”

Among other institutions, the group includes professors from 25 law schools: Brooklyn Law School, University of California – Berkeley, Case Western Reserve University, Cleveland-Marshall School of Law, Denver University, Duke University, George Mason University, Harvard Law School, University of Hawaii, Howard University, Indiana University, John Marshall Law School, University of Kentucky, Marquette University, University of Minnesota, Mitchell Hamline School of Law, Notre Dame University, Ohio Northern University, University of Pittsburgh, University of St. Thomas, University of San Diego, Stanford University, Touro College, University of Virginia, and Washington University.

Since 2011, groups such as the American Association of University Professors have issued statements condemning the growing encroachments on free speech and due process. In 2016, the AAUP Council adopted a report, “The History, Uses, and Abuses of Title IX,” which highlights that as a result of federal sexual assault policies, free speech considerations “have been relegated to the background or ignored altogether.” (1)

Nadine Strossen, Professor of Law Emerita at the New York Law School and former President of the American Civil Liberties Union, has lamented that free expression on campus has become “an endangered species.” (2) The National Association of Scholars has called for the upcoming Higher Education Act reauthorization to include provisions to enhance free speech (3).

There are numerous examples of faculty members whose constitutionally based due process rights have been curtailed (4). At Northwestern University, professor Laura Kipnis was subjected to a months-long investigation because two students complained her criticism of her campus’ sexual harassment policy allegedly created a “chilling effect” on other students who wanted to file a sexual misconduct report (5).

SAVE urges the prompt implementation of the new Title IX regulation, which is expected to be issued soon. The Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus can be viewed online. The names are listed in alphabetical order by state: http://www.saveservices.org/wp-content/uploads/Faculty-Resolution-5.2.2020.pdf

Links:

Title IX

Biden’s Reade Denial Should Boost Title IX Rule Changes

Post author By saveadmin
Post date May 4, 2020

(Biden for President via AP)

Joe Biden and the Democratic Party have suddenly come to realize that their previously professed, reflexive belief in sexual misconduct accusations was the wrong standard. Instead, with the sexual assault allegation against Biden by former staffer Tara Reade now roiling his campaign, the Democrats are saying that the accused as well as the accuser deserve to have their accounts heard and weighed impartially and with “due process,” to borrow from recent statements by House Speaker Nancy Pelosi and others.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos. The White House has been sitting on them for months, perhaps out of fear of being attacked as indifferent to survivors by Democrats, who have savaged DeVos for seeking fairness in campus sexual assault proceedings.

Democrats, emphatically including Biden, have been almost uniformly hostile to the proposed rules, while demanding a return to the Obama administration’s guilt-presuming “believe the woman” approach, which Biden led. But how can they justify continuing to attack the DeVos regulations while at the same time preaching due process for Biden?

On Friday morning, interviewed on MSNBC’s “Morning Joe,” Biden declared that “from the very beginning, I’ve said believing the woman means taking the claim seriously, and then it’s vetted, looked into.” He added that when evaluating sexual assault allegations, “in the end the truth is what matters.”Other prominent Democrats have gone even further in expressing newfound support for the rights of the accused. Speaker Pelosi remarked, “There’s a lot of excitement around the idea that women will be heard and will be listened to. But there’s also due process.”

Kirsten Gillibrand, long her party’s Senate guilt-presuming point person on the issue of sexual assault, asserted in an interview with WNYC’s Brian Lehrer that her mantra of “believe women” meant only that female accusers should be believed “to the extent that you then do an investigation.” Gillibrand has also maintained, “I stand by Vice President Biden. He’s devoted his life to supporting women and he has vehemently denied this allegation.” Meaning that she does not believe Tara Reade.

Randi Weingarten, president of the American Federation of Teachers, captured the party’s new consensus in an interview with the Washington Post. “Democrats,” she said, “always want to make sure that a woman is respected. But you also want to make sure that people have due process.”

Apart from Gillibrand’s curious suggestion that Biden’s political record answers the question of whether he committed personal misconduct, the standards recommended by Biden and his allies are both appropriate and welcome. They recognize both the need to ensure that sexual assault complainants are treated with the respect and sensitivity they deserve and the foundational importance of “due process” in evaluating such a serious allegation.

In fact, this rhetoric closely mirrors that offered by DeVos in 2017, when she rescinded Obama-era guidance and announced plans to develop the new regulations. DeVos stated that her goal was to ensure that “every survivor of sexual misconduct must be taken seriously,” but also that “every student accused of sexual misconduct must know that guilt is not predetermined,” since “due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

DeVos’ proposed regulations, released in draft form in 2018, provided a sense of her ambitious scope. Colleges would he held to account for sweeping serious allegations under the rug (as her Education Department has recently done in levying heavy fines against Michigan State and USC). But accused students would have a chance to meaningfully defend themselves through a hearing that would include the right for an advocate to cross-examine adverse witnesses and access to the evidence that the college gathered in developing its case.

The proposed regulations went forward and received significant public comment. They were cleared by the Office of Management and Budget last month. But they remain unreleased.

In 2018, leading Democrats criticized DeVos’ efforts, often in harsh terms. Gillibrand described the proposal as “betraying survivors of sexual assault and harassment on college campuses.” Pelosi issued a statement oddly claiming that the fairer adjudication system envisioned by DeVos “denies survivors due process.” Sen. Patty Murray demanded that DeVos “withdraw this rule, start over, build on the progress we’ve made instead of moving us backward, and work with us and women and survivors across the country.”

But now the allegation against Biden has suddenly created room for a rare moment of possible bipartisan accord, as both parties have rediscovered the importance of due process — which, of course, exists not simply to protect the rights of the accused but to help produce a just adjudication.

Releasing the new regulations now would not only help keep politicians honest on this issue, but also would provide colleges with sufficient time to make the necessary procedural changes for the fall semester. It might even serve as a strike against political cynicism, if Democratic politicians prove that their newfound support for due process comes not from political expediency but instead from an appropriate commitment to fairness and justice for all.

KC Johnson is co-author, with Stuart Taylor Jr., of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Stuart Taylor Jr. is co-author, with KC Johnson, of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Sexual Harassment

Digital Dating Abuse: Many Teens, More Often Boys, Are Being Harassed Online By A Partner

Post author By saveadmin
Post date May 4, 2020

Study author: “Girls may use more violence on their boyfriends to try to solve their relational problems, while boys may try to constrain their aggressive impulses when trying to negotiate discord with their girlfriends.”

BOCA RATON, Fla. — A new study may make you long for the days of notes being passed back and forth in class stating “do you like me? Yes or no.” Life is infinitely more complicated for today’s youth than it was for generations past. Adolescents are constantly in contact with each other thanks to the internet, smartphones, and social media. While all of that technology can certainly be used in a positive way, often times it leads to cyber bullying and harassment. Now, researchers from Florida Atlantic University are shedding light on yet another problem the internet has created for teenagers: digital dating abuse.

Defined as using technology to repeatedly harass a love interest, partner, or crush in order to coerce, control, intimidate, threaten, or just plain old annoy, digital dating abuse has developed into a disturbingly common phenomenon. The research team analyzed over 2,200 U.S. middle and high school students, and 28.1% admitted they had been subjected to a form of online dating abuse over the past year.

Perhaps surprisingly, the study also noted that boys (32.3%) appear to be experiencing this type of abuse more often than girls (23.6%). Across all variations, boys were more likely to have experienced a form of digital dating abuse. In fact, boys were also more likely to have experienced physical aggression from their partner. Besides these gender fluctuations, researchers didn’t find any significant demographic differences regarding rate of digital abuse among varying races, ages, or sexual orientations.

In all, 2,218 adolescents between the ages of 12 and 17 who had been in a romantic relationship took part in the study. Examples of digital abuse given by participants included their partner looking through their phone without permission, having their phone flat out stolen by their partner, being threatened via text, their partner posting something embarrassing or hurtful about them online, or their partner posting a private image online without their consent.

Besides online abuse, 35.9% of participants also said they’ve been a victim of offline dating abuse (being pushed, shoved, hit, threatened physically, called names, etc).

“Specific to heterosexual relationships, girls may use more violence on their boyfriends to try to solve their relational problems, while boys may try to constrain their aggressive impulses when trying to negotiate discord with their girlfriends,” says Sameer Hinduja, Ph.D., lead author and a professor in the School of Criminology and Criminal Justice within FAU’s College for Design and Social Inquiry, and co-director of the Cyberbullying Research Center, in a release. “It’s unfortunate to be thinking about dating abuse as we approach one of the most romantic days of the year, Valentine’s Day. However, it is clear that digital dating abuse affects a meaningful proportion of teenagers, and we need to model and educate youth on what constitutes a healthy, stable relationship and what betrays a dysfunctional, problematic one.”

Predictably, there was a major connection between being harassed online by a partner and also experiencing abuse in person. In all, 81% of students who had experienced digital dating abuse also reported being subjected to more traditional forms of romantic harassment.

Additionally, multiple risk factors were identified in regards to digital dating abuse. Teens who said they deal with depression were four times more likely to have been harassed online by a partner, and participants who reported having had sex were 2.5 times more likely to have experienced online abuse. Participants who had sent a “sext” were five times more likely to be targeted for online relationship abuse than teens who hadn’t sexted.

“As we observe ‘Teen Dating Violence Awareness Month,’ we are hopeful that our research will provide more information on the context, contributing factors, and consequences of these behaviors,” Hinduja concludes. “Gaining a deeper understanding of the emotional and psychological mind-set and the situational circumstances of current-day adolescents may significantly inform the policy and practice we need to develop to address this form and all forms of dating abuse.”

The study is published in the Journal of Interpersonal Violence.

Title IX

Release The New Title IX Regs, Madam Secretary

Post author By saveadmin
Post date May 4, 2020

Even the last of the trailing indicators, Elizabeth Bruenig, can’t avoid facing the one thing, the only thing, that is known with absolute certainty now.

This is collateral damage that Democrats — who have spent the last few years championing the #MeToo movement — should be loath to incur. Democrats who subject Ms. Reade’s allegations to a level of scrutiny not widely applied to accusers in similar circumstances — such as Christine Blasey-Ford, who famously came forward during the confirmation of Justice Brett Kavanaugh for the Supreme Court to allege that he had sexually accosted her in high school — also open up past and future cases to reproachful disregard. Conservatives, like my colleague Bret Stephens, can see the plain gulf between how Democrats have approached sexual assault in politically advantageous cases versus Ms. Reade’s, and the evident hypocrisy threatens to discredit the entire enterprise.

Whether Biden sexually assaulted Tara Reade or not, a fact that will never be determined because Reade chose not to avail herself of the mechanism America uses to make such determinations, the Democrats, the pseudo-feminists and most importantly, Joseph Biden know a far harder truth: They are hypocrites. They are and were wrong. There must be due process for the accused.

KC Johnson and Stuart Taylor did the math.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos.

It’s been a terrible struggle over the past decade for male college students to eke out what little opportunity they could to defend themselves against accusations wrapped in a litany of inane excuses that made everything, no matter what, proof of guilt. When the 2011 Dear Colleague Letter and its progeny were rescinded, activists cried that giving the accused a tenth of a chance to defend themselves was enabling rapists.

Can the same people who gave us whiplash in their pivot from Believe All Women to Take Women Seriously But Vigorously Investigate live with their flagrant hypocrisy by persisting in their disingenuous complaints about the new Title IX regs? As KC and Stuart note, “if this long overdue change is sincere,” they cannot. It’s a huge “if.”

But the head cheerleader, and the presidential nominee who has taken the hard position against giving male college students due process, is none other than the man who asks it for himself now. Is joe Biden “sincere”? Does Joe Biden have the integrity to admit he’s been dangerously wrong up to now, but he’s seen the light?

FACE, families Advocating for Campus Equality, sent Biden a letter putting the question to him.

We are hopeful your recent experience has made you realize that “sexual misconduct” is no longer just about sex. The “rules of engagement” for sexual misconduct are a moving target. Historically-acceptable hugs and genuine forms of non-sexual expressions of affection are no longer acceptable. Worse still, the consequences can be a swift end to education, career, and sometimes can even be life-ending. This affects not only those wrongfully disciplined, but also their mothers, fathers, siblings, grandparents, and spouses.

Children and young adults are not puppets to manipulate as props for the purpose of advancing political agendas. Yet that is today’s reality. Just like you have been accused of touching women in ways that cause them to “feel uncomfortable,” so too have many men, women, and LGBTQ students and professors been disciplined for the often subjective feelings of their accusers.

As a well-respected public figure, you are fortunate to have the opportunity to survive accusations of impropriety for your well-intended gestures, as well as an audience willing to forgive. Unfortunately, young students and faculty members only experience draconian repercussions for the same types of behaviors.

Joe Biden enjoys the support of his followers, his party and most of the media, who will do their part to seek out faults in Tara Reade’s accusations and history, ignoring the litany of excuses that have protected other accusers, from Christine Blasey-Ford to every woman on campus to every accuser on social media. And still Biden is constrained to defend against the accusations. What of the college sophomore, the 19-year-old male student who has neither the powerful friends and supporters nor the ability to air his denial on Morning Joe? If Biden demands his chance to deny guilt, would he demand the 19-year-old male student be presumed guilty?

Senator Biden, please, take off your political hat for just a moment, and open your eyes to what’s happening to innocent students and faculty who could be your sons, daughters, brothers or sisters – because, as you must now know, “doing the right thing” no longer protects you in this ‘accusation = guilt’ world.

Whether Biden sexually assaulted Tara Reade will forever be a mystery, but in a principled world, he would be presumed innocent because the burden is, must be, on the accuser to prove his guilt. The same thing is true of male college students accused of sexual misconduct, and it’s time for Biden to man up to the egregiously wrong position he’s taken for too long and concede that every accused must be afforded due process. Just like him.

Now is the moment, the “perfect storm,” to release the new Title IX regs that will, hopefully, give male college students a fighting chance to defend themselves from accusations. It may still be that neither Biden, nor his supporters, are sincere in their epiphany that due process matters, and their hypocrisy will then be as flagrant as possible. It will be out there for all to see.

But there will never be a better moment than now. Secretary DeVos, please release the new regs now.