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Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

Contact: Rebecca Stewart
Telephone: 513-479-3335

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

WASHINGTON / July 28, 2020 – SAVE recently released a study that shows black male students face a type of “double jeopardy” by virtue of being male and black. (1) Analyses show although black male students are far outnumbered on college campuses, they are four times more likely than white students to file lawsuits alleging their rights were violated in Title IX proceedings (2), and at one university OCR investigated for racial discrimination, black male students were accused of 50% of the sexual violence reported to the university yet they comprised only 4.2% of the student population. (3)

In 2015, Harvard Law Professor Janet Halley raised an alarm to the U.S. Senate HELP committee that, “the rate of complaints and sanctions against male students of color is unreasonably high.” (4) She advised school administrators to, “not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.” (5)

Her powerful words were ignored. Over the past 5 years numerous black males have been caught up in campus Title IX proceedings. Their lawsuits often claim a lack of due process in the procedures.

Grant Neal, a black student athlete, was suspended by Colorado State University – Pueblo for a rape his white partner denied ever happened. (6) Two black males students accused of sexually assaulting a fellow student recently settled a lawsuit against University of Findlay for racial, gender and ethnic discrimination. (7) Nikki Yovino was sentenced to a year in prison for making false rape accusations against two black Sacred Heart University football players whose lives were ruined by her accusations. (8) These are just a few examples.

Wheaton College in suburban Chicago, a major stop along the Underground Railroad, recently dismissed Chaplain Tim Blackmon, its first nonwhite chaplain in its 155-year history. Blackmon claims Wheaton’s Title IX office failed to investigate a previous Title IX complaint against him in a “clear misuse of the Title IX investigative process,” and he was “completely blind-sided by this Title IX investigation.” Blackmon’s attorney believes the professor’s race heavily factored into his firing, and that Wheaton was looking for an excuse to sever its relationship with its first African American chaplain and return to being a predominantly white educational institution. (9)

The impact to black male students and faculty could be even greater than any data or media reports imply since only those who can afford a costly litigation file lawsuits and make the news. More data is needed, but anecdotally black males are disproportionately harmed in campus Title IX proceedings.

SAVE recently spoke with Republican and Democrat offices in the House and Senate regarding this issue. Virtually all staffers agreed members of Congress are concerned about harm to black students and supportive of ways to offer protections to all students, including those of color.

The new Title IX regulation offers necessary due process protections that black students need. By complying with the regulation, college administrators will protect the rights of all students and address the serious problem that black men are accused and punished at unreasonably high rates. At a time when activists on college campuses are clamoring that Black Lives Matter, college administrators should assure they are doing everything they can to help their black students.




SAVE is leading the policy movement for fairness and due process on campus:

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

Supreme Court Asked to Review Title IX ‘Circuit Split’

Former Michigan State University students have asked the U.S. Supreme Court to review an appellate court’s December 2019 decision in their case against the university, in which a judge delivered a precedent-setting and unfavorable decision for victims of sexual misconduct.

The petition to the Supreme Court, made by Emily Kollaritsch and other women who say they were raped by the same male student while attending Michigan State, asks the justices to solve a “circuit split” between appellate courts across the country. Several courts disagree on how colleges should be held liable when sexual harassment complainants experience further harm after filing complaints. The petition calls on the justices to decide whether colleges can be held responsible for failing to address students’ “vulnerability” to sexual misconduct, or if preventable sexual misconduct must actually occur for colleges to be found in violation of Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination at federally funded institutions.

The case is centered on Kollaritsch and argues that Michigan State failed to protect her from being further harassed by a male student after the university found him responsible for sexually harassing her in 2011. The university issued a no-contact order and Kollaritsch said the male student broke it, but Michigan State could not prove he had. Kollaritsch also said she suffered panic attacks as a result of seeing the male student on campus, which she said indicated that Michigan State was “deliberately indifferent” to her sexual harassment. She said she suffered further harm by the male students’ presence on campus.

The 2019 opinion issued in the United States Sixth Circuit Court of Appeals said Michigan State could not be held liable because Kollaritsch could only prove she experienced mental health challenges from seeing the male student and not “further actionable sexual harassment” by him. The case was sent back to the district court for dismissal.

The Sixth Circuit opinion deepened a split in how different appellate courts interpret a 1999 Supreme Court case that found colleges can be held liable for “deliberate indifference” to sexual misconduct on campus under Title IX. Some circuit courts maintain that if a victimized student is merely vulnerable to harassment, even if it does not actually occur, then the institution is failing to provide an equal educational environment and could be held liable. The Eighth and Sixth Circuits hold that alleged victims must “prove additional, post-notice sexual harassment in order to state a claim for damages under Title IX,” according to Kollaritsch’s petition.

The petition was filed on July 2. On July 23, the court approved an extension requested by Michigan State to move the deadline for when the university’s lawyers must file a response. Michigan State will respond to the petition by Sept. 9, the case’s docket says.


Title IX

The ACLU’s ‘Death Star’ Client in Its Title IX Lawsuit

June 21, 2020

The American Civil Liberties Union has been deservedly criticized for its May 14 lawsuit indirectly attacking the civil liberties of students accused of sexual assault, who have since 2011 been subjected to grotesquely unfair campus proceedings that effectively presume their guilt.

It’s true, as the ACLU claims — after years of shameful silence during the Obama administration campaign to force (all too willing) universities to rig their processes against accused males – that its lawsuit against the Betsy DeVos Education Department does not directly attack all of the procedural-fairness reforms in its recently adopted Title IX rules.

But the lawsuit does insist that accused students be found guilty even if the evidence of innocence is almost as strong as the evidence of guilt. It also argues for a far more sweeping definition of sexual harassment than the one in the DeVos regulations (which parallels the definition adopted by the Supreme Court). And its central legal theory — that it was illegal for the Education Department to make the rules for universities processing student-on-student claims of sexual harassment and assault less accuser-friendly than those for race-based, national origin-based, and disability-based harassment and assault — would logically lead to invalidation of all of the new rules.

Other writers have detailed the above points and criticized three other legal challenges so far to the new regulations filed by a total of 19 Democratic state attorneys general, along with the National Women’s Law Center, which are even more sweeping than the ACLU’s lawsuit.

The ACLU filed its complaint on behalf of four organizations: Know Your IX, Council of Parent Attorneys and Advocates Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools. The latter three groups have played a minimal, or nonexistent, role in the contentious debate about due process and campus sexual assault. Know Your IX, however, was dubbed the “death star” by one lawyer who frequently represents accused students. As such, it represents an odd partner to a civil liberties organization.

Know Your IX was co-founded by Amherst graduate Dana Bolger and Yale graduate Alexandra Brodsky. (Both claimed that their institutions, neither of which could be deemed a hotbed of men’s rights activism, had mishandled their claims of sexual assault.) The group was one of several active during the Obama years arguing that campus Title IX procedures — which routinely denied accused students basic rights, such as access to evidence or cross-examination — were actually biased against accusers.

Nearly 600 lawsuits from accused students — generating more than 170 favorable rulings in court, and more than 100 pre-decision settlements — exposed the folly of this portrayal of campus tribunals. And in recent years, most of the Obama-era organizations have fallen by the wayside. Know Your IX, however, soldiers on, funded by Advocates for Youth, with a staff of nearly 20. None of its current employees identify as male.

The Know Your IX website proclaims that “sexual and dating violence are manifestations of systemic gender oppression, which cannot be separated from all other forms of oppression, including but not limited to imperialism, racism, classism, homophobia, transphobia, and ableism.” Its Twitter feed is similarly filled with paeans to the latest trends in intersectionality-based talking points.

While linking Title IX tribunals to imperialism seems like a stretch, misogyny remains a powerful force in American society. But the data makes university undergraduate populations — the focus of Know Your IX’s efforts — an unusual example for demonstrating “systemic gender oppression.” Women comprise about 56% of student bodies. Many universities feature female-only scholarships, programs, student and faculty awards, STEM camps, gym hours, and other opportunities that are off-limits to males. (These might, or might not, be welcome programs, but their existence surely cuts against a “systemic gender oppression” interpretation of college life.) And while any amount of sexual violence on campus is deplorable, the most comprehensive data suggests that about one in 40 women is sexually assaulted in college, not the one in five suggested by various dubious surveys.

To co-founder Bolger, however, male students are inherently dangerous. In 2015, she told Yahoo News that the four Vanderbilt football players who collaborated in the horrifying rape of one player’s passed-out girlfriend were typical of male undergraduates, “particularly [at] ‘elite’ institutions.” She also stereotyped male students as having “a certain arrogance and entitlement, whether to a desired grade in a classroom, or to women’s bodies.” At the same time, Bolger portrayed the Title IX process as designed, at least in part, to achieve the “justice” that criminal trials deny in rape cases. During her time helming Know Your IX, she maintained that the “criminal justice process revictimizes rape survivors” because “police disbelieve victims” and “juries buy into the rape myths that saturate our society and acquit perpetrators.” But if the Title IX system substitutes for the criminal justice system, any argument against meaningful procedural protections for the accused is unsustainable.

For the most part, the organization has downplayed such extreme rhetoric. Showing a political savvy that other accusers’ rights activists lacked, Know Your IX presents the group’s agenda as seemingly balanced. It purports to reject “the notion that justice for survivors is in tension with fair procedural protections for accused students,” and therefore commits to “fight for fair processes both for survivors, and for accused students.” These are admirable goals, though scant evidence exists Know Your IX has ever implemented them. The organization has neither filed an amicus brief nor publicly supported even one accused student lawsuit, despite myriad complaints detailing obviously unfair procedures. Bolger even rejoiced at the expulsion of an Amherst College student victimized by the most procedurally unfair of these campus processes. (The college later settled a lawsuit filed by the student.) Co-founder Brodsky even unconvincingly maintained that Obama-era policies should be interpreted as favorable to the due process rights of accused students.

The differing approaches the ACLU and Know Your IX took to comments addressing the draft regulations further highlight the awkward alignment between the two organizations. The ACLU, while previewing many of the troubling themes from its later lawsuit, at least accurately described the relevant case law. Know Your IX, by contrast, misrepresented two of the most important federal court wins for accused students, on which the DeVos rules were partly based. In one passage, Know Your IX suggested that the 2018 decision of the Sixth Circuit U.S. Court of Appeals, in Doe v. Baum, did not say what it plainly held: that a public university “must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder” in all cases in which credibility is an issue.

In another section of its comment, Know Your IX wrongly asserted that the Education Department’s presumption that it is sex discrimination for a school to use unfair procedures to impose discipline had been rejected by the courts. False. The comment relied on a federal district court decision that had already been overruled by the Second Circuit Court of Appeals. That court declared in 2016 that a university “that adopts, even temporarily, a policy of bias favoring one sex over another in a disciplinary dispute … has practiced sex discrimination.”

In one key area, Know Your IX hasn’t had to reverse earlier practice as part of its new alliance with the ACLU — though here its position reflects a fundamental misunderstanding of the Title IX disciplinary process. The lawsuit faults the regulations for giving schools the choice of using either the preponderance of the evidence standard (50.01%) or the clear and convincing standard (around 75%) in determining an accused student’s guilt. Colleges have had this choice since 2017 and none has elected to use the higher standard, so this option is more rhetorical than real.

In its comment, Know Your IX argued that using the clear and convincing standard — which many due process advocates see as critical in the Title IX process because university procedures are so tilted against the accused in so many other ways — was “lopsided.” It suggested that the harm done to an innocent male who is wrongly found to be a rapist is no greater than the harm done to a rape victim whose assailant is wrongly found not guilty.

Know Your IX’s argument might have made sense if schools primarily used restorative justice programs designed to address allegations of sexual assault in a non-punitive way. Yet the Title IX disciplinary process is just that — a disciplinary process. The only person whom the college can punish as part of the process is the accused student. The idea that procedural protections for the accused in such a situation are “lopsided” is curious.

Few, if any, journalists have done better work in detailing the injustices faced by accused college students than Emily Yoffe. Her succession of meticulously accurate and fair articles in Slate, the AtlanticPoliticoand Reason have exposed unfair procedures faced by white and black students, in public and private institutions. Brodsky’s reaction, during her tenure at the helm of Know Your IX? “There is a special place in hell,” she tweeted, “for women who are Emily Yoffe.”

That the ACLU has chosen to team with a group co-founded by such a figure, targeting regulations that advance campus due process more than anything for a generation, speaks volumes of the organization’s decline as a leader in the protection of civil liberties.

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).


Myths and Hoaxes of Sexual Abuse Stoke ‘Politically Useful’ Fear

by Wendy McElroy

[S]ince love and fear can hardly exist together, if we must choose between them, it is far safer to be feared than loved.”—Niccolò Machiavelli, The Prince, 1513

For those who want to control a population, fear is more useful than love and far easier to elicit. A culture conditioned to feel knee-jerk fear allows political power to rise on a tide of emotions without the need for arguments and evidence. When the adrenaline of fear hits, people cry out for social control in the belief that government can protect them. Those who want to verify a crisis before acting on it are seen as part of the problem because they obstruct or delay the “solution.” For decades, a fear response has been embedded into society through constant cries of “danger!” Many alarm bells have been manufactured, however, because they are politically useful to those who want to produce legislation or funding.

The issue of “sexual violence and women” illustrates this process. Women have received the unrelenting message that they live in danger from men, and only government can save them from it. Predictably, many politicians support and promote this process and conclusion.

The dynamic can be glimpsed through a phenomenon that has become commonplace within feminism: declaring an “awareness month” for specific issues like domestic violence (DV). There is nothing intrinsically wrong with doing so. But the “awareness” declared usually promotes a myth that is propped up a hoax.

Consider one such event: National Stalking Awareness Month (January).

When stalking involves genuine threats of harm, it is a problem that should be legally addressed. But awareness advocates use the term so broadly that criminal behavior is lumped together with totally legal activities.  The National Center for Victims of Crime(NCADV) defines stalking as a “pattern of behavior that makes you feel afraid, nervous, harassed, or in danger” which can be physical or verbal contact, unwanted gifts and communication. This subjective definition furthers the myth that common and innocuous behavior, such as repeatedly emailing someone after a breakup, is a criminal matter. Anyone who questions whether persistent emails deserve legal intervention or who suggests a private solution instead is accused of promoting violence against women.

The myth is then given urgency by hoax statistics such as “one in 6 women (16.2%) and 1 in 19 men (5.2%) in the United States have experienced stalking victimization.” The alarmingly high rate of victimization is understandable when it is seen to include unwanted communication. “Repeatedly receiving unwanted telephone calls, voice, or text messages was the most commonly experienced stalking tactic for both female and male victims of stalking (78.8% for women and 75.9% for men).”

A myth joins a hoax and together they seek government support. First recognized in 2004 by the NCADV, National Stalking Awareness Month has received Congressional approval and a Presidential Proclamation. The harm the myth does becomes official. The discussion of stalking now focuses almost entirely on women as victims and men as victimizers. The expanded definition introduces immense subjectivity into the enforcement of laws and policies. The alleged pervasiveness of stalking encourages oversensitivity and fuels fear. Sensationalized rhetoric does much the same. The NCADV, for example, views stalking as a first step toward femicide.

What is the solution to this first indication that women may be murdered? The NCADV offers a list of them—every one of which involves more government intervention. “Ask your legislators to update the federal domestic violence firearm prohibitor to including misdemeanor dating violence and misdemeanor stalking” is one suggestion. Laws and policies increase dramatically, as they have over past decades, but the problem never goes away. It is too politically useful to go away.

Gradually, a climate of fear becomes the cultural norm, especially on college campuses where awareness campaigns and sexual myths are popular. But the panic hits Main Street, as well.

On April 6, the New York Times published an article entitled “A New Covid-19 Crisis: Domestic Abuse Rises Worldwide.” Lockdowns trapped women in close proximity to abusive men, it maintained, and this situation resulted in soaring rates of DV.  The conclusion was based upon warnings from DV activists, whose salaries usually depend upon the public attention given to this issue, and upon any reported increase in calls to DV hotlines—calls which were handled as though they were confirmed cases.

In an earlier article for the Libertarian Institute, I observed that police reports are more reliable sources by far, for several reasons. “People access DV hotlines…for  many non-DV issues…but they report this crime to the police. The same person may phone a hotline many times, but a police report is…‘one person, one case’. The funding of a DV service often depends on its volume, which encourages overstatement. Police accounts also ground DV in reality, with real names and verifiable details rather than anonymous reports.” The rate of police reports during the lockdown in many or most cities has shown a decline or little change.

Nevertheless, mainstream media around the world echoed the New York Times article. The UK Independent (April 15) stated Domestic abuse killings appear to double during UK’s lockdown,” for example. The main source cited was an anti-DV “campaigner, who is chief executive of domestic abuse charity Nia.”

Meanwhile, other newspaper accounts indicated that crime in general was sharply down in UK during the same period. This does not mean murders were down, of course, but it raises questions, even if the Independent’s account is accurate. What was the general rate of murder? Did the crime increase for both sexes and, perhaps, more for men than for women? Can murder, which has many motives, be automatically ascribed to DV? Was the murder done by a male partner, as most articles suggested, or was a stranger or a woman the perpetrator? How can the last question be answered if those accused have not been tried?

In America, where murder rates have generally soared since the lockdown, a substantial number of police departments reported a decrease in DV. This should give pause to those reporting on the issue. Instead, the data was strangely interpreted. A recent headline in The Financial Post captured the gist of it, “No surge in domestic violence cases during COVID-19 lockdown—that doesn’t mean it’s not happening.” In short, reports of decline are reason to worry about an increase. Counter-evidence did not discourage fear mongering. Remember, it serves a political purpose and fits an established narrative.

The myths and hoaxes continue to block the possibility of genuine solutions emerging. A big step toward a genuine solution to stalking would be a definition that includes only harm or threat of harm to person and/or property and that includes men equally. A big step toward solving DV would be to credit only investigated cases and to acknowledge that both sexes are victimized at roughly the same rate.

All victims benefit from the truth. Unfortunately, the truth suffers from the disadvantage of being far less politically useful.

About Wendy McElroy

Wendy McElroy is an individualist anarchist and individualist feminist who has written or edited over a dozen books, scripted dozens of produced documentaries, worked as a writer for FOX News for 5 years and published in periodicals ranging from Penthouse to The Hill.

New Title IX Rules Strengthen Rights For Victims and Due Process For Accused

by Michelle Owens

For nearly a decade, college administrators used the pseudo-legal authority they received from the Obama Administration to set up Wonderland-worthy courts where the Queen of Hearts’ motto, “sentence first – verdict afterwards,” was the law of the land. While many argued this was done to make it easier for victims to come forward, there is no evidence it actually reduced sexual assault on campus. Nor did it help victims. This lack of clarity hurt students who’d been attacked and students who’d been unjustly accused.

I have a unique perspective on these issues.  For more than a decade I have worked as a licensed social worker with survivors of sexual abuse.  As a longtime Nashville attorney specializing in Title IX cases, I’ve also defended those falsely accused of sexual misconduct in the extremes of minor and trivial complaints that ruin lives.

These students have survived an unjust and unfair process.  My cases have included representing 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).  Another 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. And one male student was charged for giving an honest compliment to a friend on her outfit.

These are among the cases that allow college administrators to start the process of kicking students out of school and labeling them a sexual predator on their academic record.  But they barely scratch the surface of reasons of why changes needed to be made to Title IX, the law that bans sex discrimination in schools. The Department of Education recently released regulations that establish a basic level of privacy for accusers and fundamental due process for the accused. Those who say we cannot have due process and help victims are creating a false choice. We can and must have both and that’s reflected in the long overdue regulations.

In March, the Department of Education Office of Civil Rights released its findings from an investigation of sexual misconduct cases at Penn State University.  A review of more than 300 case files involving reports of sexual harassment found numerous procedural errors that seriously damaged the right of both complainants and respondents to a fair process.

Unfortunately, some insist on preserving the ways of the past and say the outlined reforms hurts victims. That’s simply not true. It merely requires that accused students not be punished or expelled until/unless they’re found guilty, that all evidence including exculpatory evidence is disclosed, and that all faculty involved in the investigation are free of conflicts of interest or bias.

In reality, the new Title IX reforms strengthen the rights of victims.  Specifically, the regulations: require the school to actually investigate allegations and do so in a timely manner; ensure accusers are not required to disclose any confidential records, including medical and psychological; require the school to give the accuser support in the form of class or dorm reassignments, no-contact orders against the accused, etc., even if they have not initiated an official investigation; allow the accuser to participate in dispute resolution or withdraw their complaint if they so choose; discourage minor complaints that harm the credibility of survivors; and define the proper process of investigation including appeals.

For victims, this means the end of paperwork backlog, slow-walked investigations, disclosure of personal health records, and stalled class and dorm reassignments.  For the accused, it means the end of surprise administration letters saying that you’ve been accused of sexual assault and subject to expulsion without evidence or any specifics.

Sexual assault is a serious crime, and the patchwork response from college administrators that has stood for nearly ten years can no longer stand. We need national standards are fair to all students. That is the only way to ensure justice for survivors and due process for the accused. Thankfully, the new guidance on Title IX does just that.

Michelle Owens is a managing partner specializing in Title IX defense, education disciplinary defense, professional license defense and labor law at Agee, Owens & Cooper in Nashville, Tenn.

#MeToo Campus Civil Rights Discrimination Due Process False Allegations Free Speech Investigations Office for Civil Rights Sexual Harassment

Black Immigrant Chaplain Claims Christian College Used Bogus Title IX Investigation to Fire Him

‘From the outset … race was very much at issue’

A professor’s race heavily factored into his firing on the grounds of making racially and sexually insensitive comments, according to his attorney.

Wheaton College, known informally as the Harvard of evangelical colleges, publicly announced the dismissal of Chaplain Tim Blackmon earlier this month, more than a month after his firing.

The 50-year-old black immigrant from the Netherlands has since vigorously disputed the allegations against him, telling the Chicago Tribune that “they are a complete misconstrual of the comments” he made.

President Philip Ryken justified the college’s firing of Blackmon by publicly accusing him of several violations Wheaton learned about last fall. He had “repeatedly used an ethnic slur” to refer to an Asian employee and suggested that a female staff member sit on his lap during a training session for sexual harassment, according to Wheaton’s statement.

The black chaplain also circulated a meme to employees about masturbation and “arranged” to have the book “The Complete Idiot’s Guide to the Kama Sutra” placed on a female staff member’s desk, the college claimed.

Wheaton claimed that Blackmon “admitted to certain allegations, which is patently untrue,” his attorney Andrew Miltenberg told The College Fix in an email. The ex-chaplain “continues to refute” both the allegations and the context Wheaton applied to them.

“From the outset, Chapl[a]in Blackmon’s race was very much at issue,” contrary to Wheaton’s race-neutral portrayal of the allegations, Miltenberg said.

Citing Wheaton’s allegedly poor record with racial and ethnic diversity, “especially with the African American community,” the attorney said that Blackmon has been treated far worse than his white colleagues.

Pressure to conform with the prevailing views of the #MeToo movement and the controversies surrounding Title IX investigations resulted in an overreaction from the college, the attorney added.

Ultimately, Wheaton chose to oust Blackmon so that it could maintain the mantle of being an “ethnically diverse” college all the while “return[ing] to its roots – that being a primarily white educational institution,” Miltenberg alleged. Yet the fired employee and his attorney have not decided whether to take legal action yet.

When asked to specify some of the college’s allegations about Blackmon – including the exact racial slur – beyond its curt statement, Director of Marketing Joseph Moore stated: “Wheaton College is not providing further comment.”

That supposed slur, Blackmon told a blogger last week, stemmed from an “inside joke” about the song “Black and Yellow” by the rapper Wiz Khalifa and its relevance to working in a “predominantly white institution.”

Theological articles he shared were ‘ideologically problematic’ for accuser

Wheaton’s internal statement to its community, which Moore provided and which preceded Blackmon’s response, made clear that the college did not find that he engaged in “sexually immoral relationships or physical sexual misconduct.” Rather, its investigation “revealed conduct inconsistent with Wheaton’s policies and commitments.”

Moore did not not provide The Fix with the specific policies and commitments purportedly breached by Blackmon, however.

“To be clear, I was completely blind-sided by this Title IX investigation,” Blackmon said via his attorney in response to Wheaton’s statement.

“I recently learned this was the second time this individual filed a Title IX against me,” the first one occurring in 2017 after Blackmon had “shared five theological articles that the complainant [accuser] deemed ideologically problematic.” (He doesn’t give a more specific description of the accuser; Wheaton’s language suggests at least two women complained.)

Wheaton’s Title IX office didn’t investigate at the time, “as it was a clear misuse of the Title IX investigative process,” the chaplain continued. But in the most recent complaint, he said that “several of my comments have been taken completely out of their factual and, in some cases, religious context.”

He emphasized that no one accused him of “flirtation, inappropriate relationships, sexual misconduct or any sexual action towards anyone,” and neither the accuser nor “any witness, communicate[d] offense or discomfort.”

While it left out his race when justifying his firing, Wheaton emphasized Blackmon’s race when hiring him five years ago as the first nonwhite chaplain in its 155-year history.

Rodney Sisco, director of the Office of Multicultural Development, told The Wheaton Record: “I think change is change, and change is always difficult. Chaplain Blackmon is going to be seen differently.”

While Sisco was personally excited to have a “person of color leading the chaplain’s office,” he suspected that some community members would be “a little worried, asking, ‘Have we made some sort of strange mistake?’” He concluded by saying: “I think there will be some folks who push against the college.”

At the time, only 2.3 percent of the student body was comprised of African Americans. The most recent figures from 2017 put it at 3.03 percent––its white population is at 70.8 percent. (Ranking service College Factual says Wheaton has more “non-resident alien” students than African Americans.) This is at a college that was founded by evangelical abolitionists in 1860 and was a major stop along the Underground Railroad.

“Wheaton has failed in its attempt, if any were even made, to achieve truly measurable and transformative cultural diversity,” Miltenberg, who has represented hundreds of college students accused of sexual misconduct, told The Fix.

‘The Complete Idiot’s Guide to the Kama Sutra’ was a regifted ‘gag’

In a separate public statement, the attorney alleged that Wheaton administrators “are now publicly smearing and defaming my client in the media by using out of context statements and false accusations.”

Contrary to President Ryken’s claim, Blackmon “never asked his secretary to sit on his lap during a sexual harassment training,” and “never harassed anyone, sexually or racially,” according to Miltenberg. The college simply “weaponized the Title IX process to get rid of someone whose words and ideas didn’t always conform to their views.”

The lap allegation, Blackmon told The Roys Report blog last week, stemmed from his critical comments about “the mandatory (but rather patronizing) sexual harassment training video” he was required to watch when starting at Wheaton in September 2015.

He said he told the accuser: “Come on, it’s not like I don’t know what sexual harassment is. It’s not like I’m asking my secretary to sit on my lap and take the training for me.”

The context for another allegation, about his comments to a newly married female employee, was the fact that her “brand-new husband had been pulling all-nighters for grad-school,” Blackmon continued:

As a way of celebrating their newly wedded bliss I said, “Maybe you should surprise him and pay him a conjugal visit.” As to the conjugal-visit comment, I was genuinely trying to commiserate with her about the challenges of graduate school and newlyweds.

Regarding the incident involving “The Complete Idiot’s Guide to the Kama Sutra,” Miltenberg told The Fix that Blackmon “received the book from a former parishioner.”

That person’s wife wrote about the incident in a comment on a blog post on the Blackmon controversy: “I left the book on Tim’s desk. During our annual Church bazar [sic] I found the book in the donated items as we set up.” She thought that it would be “ironic to put the book on Tim’s desk.”

Later, after she and her husband “laughed about it,” her husband “snuck into Tim’s office and hid it in his library where it sat for years. I guess it made its way to Chicago. I thought it was funny to put a book that silly in Tim’s office. And the idea I was a victim is stupid.”

According to Miltenberg, at some point Blackmon “told the complainant the story after he found the surprise gag gift in his [college’s] library and then gave her the book. He thought it was a funny story. That’s all there was to it.” (Blackmon told The Roys Report he shared the story with others, but admitted that it sounded bad when “taken out of its contexts without the prank.”)

Because this was “such a benign event,” the attorney continued, “we believe that Wheaton was looking for an excuse to sever its relationship with its first African American Chaplain” and return to being a predominantly white educational institution.

‘China-man’ was an ‘inside joke’

Regarding the “ethnic slur” he allegedly used repeatedly toward an Asian American employee, Blackmon provided the context to The Roys Report.

When he started working at Wheaton, Blackmon said one of his Korean ministry colleagues was “mistaken” for a professor. They “commiserated about the realities of beginning to work” at the predominantly white institution, comparing their situation to the Wiz Khalifa song “Black and Yellow”:

[A] black pastor from Holland and a Korean ministry associate. I said, “Maybe we should call you the China-man because people can’t even tell one Asian from another, one Chinese from a Korean.” More laughter ensued and for the next couple of weeks we commiserated about the ironies of working in a predominantly white institution, and we soon moved on from our inside joke and got to work.

“This,” said Blackmon, “is what they are considering the racial/ethnic slur.”

Miltenberg also suspects that “Wheaton may have overreacted out of fear of public pressure given the #MeToo movement and other Title IX related controversies as of late”:

Wheaton has repeatedly shifted the landscape in Chaplain Blackmon’s case, at times claiming it was Title IX issue, and other times, suggesting that the situation did not fall under Title IX.

This shifting has impeded Blackmon’s ability to appropriately respond to the allegations as well as “denying him the right to counsel,” Miltenberg said. The college has also ignored its own “employee conflict resolution procedures,” he claimed.

Its actions “have put Chaplain Blackmon’s future very much at risk,” Miltenberg said.


Campus Sexual Assault Sexual Harassment Title IX

Betsy DeVos Thanks Assistant Secretary Marcus for His Service Leading Civil Rights Office

WASHINGTONU.S. Secretary of Education Betsy DeVos praised Assistant Secretary Kenneth L. Marcus for his strong leadership of the Office for Civil Rights (OCR) and for the remarkable results achieved after Marcus announced his upcoming departure from government service to return to the private sector.

“I am so thankful for Ken’s strong leadership over the last two years,” said Secretary DeVos. “He helped drive incredible results for students by vigorously enforcing civil rights laws, expanding protections from discrimination, and refocusing OCR on resolving cases efficiently and effectively. He has been a tremendous asset to us and an ally to students, and I will always be grateful he agreed to return to government service to join the President’s and my team. While we are sad to see him go, I know in his next professional chapter he will further build on his successful career of advocating for the civil rights of America’s students.”

“I am grateful to President Donald J. Trump and Secretary Betsy DeVos for the honor of directing, over the last two years, OCR’s talented and committed staff,” said Assistant Secretary Marcus. “Throughout my tenure, OCR has reinforced its status as a neutral, impartial civil rights law enforcement agency that faithfully executes the laws as written and in full, no more and no less, focusing carefully on the needs of each individual student. The data demonstrate that this approach works. While I am sad to leave colleagues for whom I have so much respect and affection, I am heartened to know that I am leaving the institution in excellent hands.”

During the last two fiscal years and the first several months of the current fiscal year, OCR has made historic advances in protecting the civil rights of America’s students:

  • Resolving some of OCR’s most extensive systemic investigations of Title IX violations in American higher education, as well as the largest investigation that OCR ever conducted into systemic sexual assault problems in an urban public school system;
  • Launching the Outreach, Prevention, Education, and Non-discrimination (OPEN) Center to focus on outreach and proactive compliance with federal civil rights laws;
  • Commencing nationwide initiatives to address sexual assault in elementary and secondary schools and inappropriate use of restraint and seclusion on students with disabilities (with the Office of Special Education and Rehabilitative Services);
  • Launching over three times more proactive civil rights investigations last year than the prior administration launched in all eight years combined;
  • Establishing the National Web Accessibility Team to resolve technology accessibility problems in educational institutions;
  • Advancing the Administration’s deregulatory initiative, in conjunction with the Department of Justice, by rescinding sub-regulatory guidance that exceeded statutory authorization;
  • Improving the quality of OCR’s authoritative Civil Rights Data Collection through numerous reforms facilitated by a newly-expanded partnership with the National Center for Education Statistics;
  • Reforming the Department’s approach to civil rights in career and technical education, through a new Memorandum of Procedures issued in conjunction with the Department’s Office of Career, Technical, and Adult Education;
  • Providing timely and important guidance on protection of student civil rights in light of COVID-19;
  • Administering President Trump’s historic Executive Order on Combating Anti-Semitism through vigorous enforcement; and
  • Strengthening Title IX protections for survivors of sexual misconduct and restoring due process in campus proceedings to ensure all students can pursue education free from sex discrimination through game-changing Title IX regulatory reform.

The data demonstrate the vigor with which OCR has been conducting its work in recent years. For example, during fiscal years 2018 and 2019, OCR resolved nearly 1,000 more allegations of discrimination by requiring corrective action than the previous administration had during its last two fiscal years. During this period, OCR achieved a 45% increase in the total number of Title VI allegations resolved with change and a 78% increase in the total number of Title IX allegations resolved with change compared to the last two fiscal years under the previous administration.

Assistant Secretary Marcus will continue his service until the end of the month in order to ensure appropriate continuity within OCR. Principal Deputy Assistant Secretary Kimberly Richey will succeed Marcus as Acting Assistant Secretary.


Campus Sexual Assault Sexual Harassment Title IX

Ringing the Bell of Justice, 14 Attorneys General Remind Colleges of their Legal Duties Under Title IX


Contact: Rebecca Stewart

Telephone: 513-479-3335


 Ringing the Bell of Justice14 Attorneys General Remind Colleges of their Legal Duties Under Title IX

WASHINGTON / July 20, 2020 – The Attorneys General from 14 states have released an Amicus Brief that summarizes the legal obligations of colleges and universities in responding to allegations of campus sexual misconduct. The Attorneys General represent the states of Texas, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, and Tennessee.

On May 6, the federal Department of Education issued a new regulation creating a legal obligation for colleges to investigate and adjudicate allegations of sexual assault. The regulation, known as the Final Rule, increased legal protections both for complainants (1) and the accused (2).

But one month later the Attorneys General from 18 other states filed a lawsuit in federal court seeking to block the implementation of the new regulation, claiming the policy would cause “immediate and irreparable harm” to schools and students (3).

Last week’s Amicus Brief by the 14 Attorneys General is grounded in schools’ constitutional and other legal obligations to assure fairness for all students. The AGs note, “the Final Rule’s due process protections requiring live hearings, direct cross examination, and neutral fact-finders, reflect a reasonable, straightforward approach to resolution of Title IX complaints that protects both complainants’ and respondents’ due process rights.”

The Brief charges that current campus policies represent a “constant recycling of discredited, unconstitutional policies” that “effectively eliminated a presumption of innocence for those accused of sexual misconduct.” The Brief concludes, “The Final Rule aims to provide robust protections for individual rights by ameliorating the constitutional and statutory deficiencies caused by prior regulations and guidance.”

The Amicus Brief also disputes the “immediate and irreparable harm” claim, accurately explaining that the plaintiffs “have known for years that constitutional norms favor more procedural protections for students accused of sexual harassment, not less.” Therefore, “If Plaintiffs and these institutions suffer harm because of the Final Rule’s effective date, then that harm was self-inflicted.”

To date, 650 lawsuits have been filed by accused students against their schools (4). In a majority of cases, judges have ruled in favor of these students (5).

The Editorial Boards of the following newspapers have endorsed the new Title IX regulation: New York Daily News, Detroit News, Wall Street Journal, The Oklahoman, Pittsburgh Post-Gazette, and the Philadelphia Inquirer (6).

The Attorneys General Amicus Brief is available online (7).

NOTE: The original AG Brief, filed on July 15, listed 14 Attorneys General. The following day, the Nebraska Attorney General also agreed to support the Brief. So now 15 Attorneys General are included. This is the revised Brief:  



Blue State AGs Want To Limit College Students’ Due Process Rights. Red State AGs Are Fighting Back

by Ashe Schow

A group of 18 Blue State attorneys general filed a lawsuit against U.S. Department of Education Secretary Betsy DeVos earlier this month to try and block new regulations that would provide much needed due process to college students accused of sexual assault.

The lawsuit is meant to delay the final rule’s implementation at least until after the November election, with filers hoping former Vice President Joe Biden will become president and cancel the rule all together.

As Inside Higher Ed reported earlier this month, the lawsuit claims the new rules would “reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education,” ignoring the fact that denying due process makes it easier for false accusations to limit access to education and does nothing to stop actual sexual harassment.

The AGs also took issue with the fact that the new regulations limit who can make an accusation (the new rules state the accuser must be a student of the school), are unfair. The whole point of Title IX wading into sexual harassment and assault was to claim accusers had their educational opportunities limited by a college that ignored their sexual assault claims. If the accuser isn’t even a student, their educational opportunities can’t be limited by a school they don’t attend.

The AGs that filed the lawsuit were all from Democrat states: California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

Last week, a coalition of Red State AGs filed a brief defending the new regulations.

The new rule, the AGs wrote, “requires educational institutions to investigate and, where proved, punish allegations of sufficiently severe, pervasive, and objectively offensive sexual harassment. It also provides a needed framework, consistent with long-standing Supreme Court precedent, that protects the foundational constitutional rights of due process and speech.”

The AGs take particular issue with the notion that because the adjudications can’t result in jail time (at least the schools can’t impose such a punishment, they can and do send information gathered to police in order to circumvent students’ constitutional due process rights), then due process isn’t necessary or can be severely limited.

“The need for procedural due process only increases in the context of sexual harassment and misconduct. Although not a criminal proceeding outright, the underlying act at issue in a harassment-related disciplinary hearing overlaps with illegal conduct. A finding of guilt attaches a special stigma to the accused party that will stay with them well after they exit campus,” the AGs wrote.

They also quoted a ruling against Brandeis University from an accused student. The judge in that case wrote, “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”

The AGs writing in support of the final rule are from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.

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Campus Civil Rights Due Process False Allegations Sexual Assault Sexual Harassment

Why Are Some Members of Congress Opposing Due Process Protections for Black Male Students?


July 14, 2020

During the Senate HELP Committee’s 2015 hearing on campus sexual assault, Harvard Law Professor Janet Halley made the surprising observation that in her experience, “male students of color are accused and punished at ‘unreasonably high rates’ in campus sexual misconduct investigations.” (1) Two years later, journalist Emily Yoffe posed this question in The Atlantic: “Is the system biased against men of color?” explaining, “black men make up only about 6 percent of college undergraduates, yet are vastly overrepresented in the cases I’ve tracked.” (2) Lara Bazelon, director of the racial justice clinics at the University of San Francisco School of Law, likewise has opined about the troubling racial dynamics at play under the current Title IX system, and urged Education Secretary Betsy DeVos to “take important steps to fix these problems.” (3)

During this time of national reflection on race relationships, stories mount of black men whose lives were irrevocably harmed by false allegations or poorly administered campus tribunals (4). The examples of unfair treatment are numerous and egregious:

  • Two years ago, Nikki Yovino was sentenced to one year in jail for falsely accusing two black male football players, students at Sacred Heart University, of sexual assault (5).
  • Grant Neal, a black student athlete suspended by Colorado State University-Pueblo for a rape his white partner denied ever happened, sued and settled with his university (6).
  • Two black male students accused of sexual assault recently settled a lawsuit against University of Findlay for racial, gender, and ethnic discrimination (7).

Black faculty members also have been targeted by the campus kangaroo courts. The nation’s first elected black governor, former Virginia Governor L. Douglas Wilder, penned a scathing letter regarding his “unimaginable nightmare at Virginia Commonwealth University” after he was erroneously accused of sexual misconduct. He aptly titled his letter, “Secretary DeVos Right to Restore Due Process on Campus.” (9) Similarly, Howard University castigated law professor Reginald Robinson for allegations of sexual harassment, although his actions were clearly an expression of academic freedom consistent with university policy. (10)

So how widespread is the problem?

In 2017, the Office for Civil Rights investigated Colgate University for potential race discrimination in its sexual assault adjudication process. During the course of the investigation, the institution had to reveal the embarrassing fact that “black male students were accused of 50% of the sexual violations reported to the university,” (11) even though black students represent only 5.2% of all undergraduate students (12).

More recently, Title IX For All analyzed demographic data from the approximately 650 lawsuits filed against institutions of higher education since 2011. Among the 30% of cases in which the race of the accused student was known, black students are four times as likely as white students to file lawsuits alleging their rights were violated in Title IX disciplinary proceedings. Title IX For All concludes, “These findings come at a time when public officials who have long regarded themselves as champions of civil rights for minorities suspected or accused of crimes advocate a heightened awareness of their rights, while simultaneously working to undermine their rights in higher education settings.” (13)

The new Title IX regulation will ensure fairness, equitability, and credibility, and will support and assist sexual assault complainants, as well (14). Some members of Congress in both the Senate (15) and the House of Representatives (16) have urged Secretary DeVos to rescind the new regulation with vague claims that it is harmful to students.

At a time when activists across the country are clamoring that Black Lives Matter, why are some members of Congress opposed to a regulation that will help improve the lives of black men?