Month: August 2020

PR: Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government

Post author By saveadmin
Post date August 27, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government; SAVE Urges Delay on Vote

WASHINGTON / August 27, 2020 – State senator Hannah Beth Jackson has inserted language into a Higher Education bill, SB-493, that would force California colleges to defy a new federal regulation designed to assure fairness during campus adjudications of sexual harassment. The federal rule, which recently took effect on August 14, requires that the school convene a live hearing where each party’s advisor (but not the student) is allowed to pose relevant questions to the other party.

Question-asking is viewed as essential to clarify the facts of the case and assess the credibility of each party. Such measures are necessary to identify allegations that are exaggerated or false.

Sen. Jackson’s language directly contradicts the federal requirements in two respects:

Would make the hearing optional: “They shall provide that the institution shall decide whether or not a hearing is necessary to determine whether any sexual violence more likely than not occurred.” (1)
Prohibits an advisor from posing any questions: “Any cross-examination of either party or any witness shall not be conducted directly by a party or a party’s advisor.”

Jackson’s provisions also ignore the findings of three recent judicial decisions:

In Doe v. California Institute of Technology, the court required the university to provide “an opportunity for the Committee to assess [accuser] Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by [accused student] John or the Committee itself. That opportunity did not exist here.” (2)

In Doe v. Allee (University of Southern California), the judge ruled, “When a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing).” (3)

In Doe v. Regents of the University of California (Santa Barbara) the court found that the campus committee denied the Plaintiff the opportunity to cross-examine the complainant on the effects of an antidepressant she was taking, leading the court to conclude that “[t]he Committee reached a significant finding based on nothing more than speculation.” (4)

The new Rule has been praised by a wide range of stakeholders, including the National Association of Criminal Defense Attorneys (5), Harvard law professor Jeannie Suk Gersen (6), former ACLU president Nadine Strossen (7), former Virginia governor Douglas Wilder (8), and others (9).

A survey of California voters found that many view false allegations of campus sexual assault to be a problem. 44.0% of respondents believe that such false allegations are a “big problem.” Only 14.4% viewed false allegations as “not much of a problem.” (10)

Links:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB493
Super. Ct. July 9, 2019
30 Cal. App. 5th 1036 (Cal. Ct. App. 2019)
28 Cal. App. 5th 44 (Cal. Ct. App. 2018)
https://www.nacdl.org/newsrelease/NewTitleIXRegulationsDueProcess
https://www.chronicle.com/article/The-Sex-Bureaucracy-Meets-the/248849
https://ricochet.com/podcast/q-and-a/nadine-strossen-the-aclu-and-betsy-devos/
https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html
http://www.saveservices.org/2020/08/numerous-groups-and-individuals-applaud-new-title-ix-regulation/
http://www.saveservices.org/sexual-assault/opinion-polls/

PR: Sexual Assault Survivors Reveal Widespread Mistreatment at the Hands of Campus ‘Kangaroo Courts’

Post author By saveadmin
Post date August 26, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Sexual Assault Survivors Reveal Widespread Mistreatment at the Hands of Campus “Kangaroo Courts”

WASHINGTON / August 25, 2020 – Over the past nine years, male and female victims of campus sexual assault have reported numerous instances of mistreatment and neglect by university officials. The persistent problem led survivors to file complaints to the federal Office for Civil Rights. Over the past decade, complaints to the OCR increased over four-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). [1] The problem is reflected in the growing number of lawsuits filed against universities, with 650 claims filed to date. [2]

Both female and male victims of sexual assault have been shortchanged by their universities.

One female student at the University of Wisconsin-Whitewater charged, “I don’t think anybody should be treated the way that I was. It was worse than the assault, a lot worse. I regret with everything, coming forward and saying anything.” [3]

A male victim at Drexel University reported his sexual assault to campus administrators at least seven times, but the university never acted on his complaint. He stated one university official dismissed his rape claim as “ludicrous.” [4]

Penn State, Michigan State, and the University of Southern California (USC) have been in the news in recent months for gross mistreatment of victims:

At Penn State, the Office for Civil Rights identified several cases in which the university, after receiving a complaint of sexual assault, delayed its investigation for so long that the complainant chose to abandon the process. The OCR report noted, “(T)here are serious inadequacies in how the University treats both complainants and respondents in cases of alleged sexual harassment that need correction in order to bring the University into compliance with Title IX.” [5]
Michigan State is facing a possible U.S. Supreme Court challenge after three former students petitioned the court to review their Title IX case and reverse the lower appellate court decision. The original lawsuit cited lack of adequate response to their reports of sexual assault. [6]
The University of Southern California is facing a federal lawsuit after California Court of Appeal reversed a trial court decision and overturned a male student’s expulsion, ruling that his Title IX proceeding was “unfair.” The student, a former USC football star, is now forging ahead with a seven-count federal lawsuit on the grounds of “breach of contract, infliction of emotional distress, negligence and selective enforcement of Title IX.” [7]

A SAVE analysis documents seven ways by which the new Title IX regulation supports and assists complainants. [8]

Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
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.
Defines the procedures to properly investigate and adjudicate such complaints.
Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint, if desired.
Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Universities now have a legally enforceable duty to respond to victim complaints in a timely and thorough manner and to investigate allegations of sexual assault, domestic violence, dating violence and harassment. No longer should any survivor of sexual assault have to experience mistreatment and neglect from university administrators.

Citations:

[1] https://www2.ed.gov/about/overview/budget/budget20/justifications/z-ocr.pdf

[2] https://www.titleixforall.com

[3] https://medium.com/@sarah4mayor/university-of-wisconsin-whitewater-wrestling-a-lawsuit-1a28beeec1a5

[4] https://casetext.com/case/saravanan-v-drexel-univ

[5] https://www.thefire.org/ocr-penn-state-violated-rights-of-both-complainants-and-respondents-in-title-ix-proceedings/

[6] https://statenews.com/article/2020/07/former-msu-students-file-for-title-ix-lawsuit-review-in-u-s-supreme-court?ct=content_open&cv=cbox_latest

[7] https://www.foxnews.com/us/expelled-usc-football-player-legal-victory-title-ix-case

[8] http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

Campus Sexual Assault Sexual Harassment Title IX Victims

PR: Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

Post author By saveadmin
Post date August 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

WASHINGTON / August 18, 2020 – Sexual assault survivors, accused students, and faculty members are welcoming the new Title IX regulation, which took effect this past Friday on college campuses across the nation. Title IX is the federal law that bans sex discrimination at schools receiving federal funds. The new regulation replaces a 2011 Department of Education policy that sparked national controversy, hundreds of lawsuits, and thousands of federal complaints.

Sexual assault survivors are applauding the new regulation because it provides a detailed and legally enforceable framework for colleges to investigate and adjudicate allegations of sexual assault. Under the old policy, some victims reported the ‘brush-off’ treatment they received was more traumatic than the original assault (1).

Many of these victims complained to the federal Office for Civil Rights. As a result, the number of sex discrimination complaints increased over four-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). (2) Male victims of sexual assault are anticipating that their complaints also will taken more seriously by campus administrators.

Accused students will benefit from a restoration of fundamental due process rights, which include the right to an impartial investigation and an unbiased adjudication. Over the years, hundreds of wrongfully accused students have sued their universities. On July 29, for example, a federal appeals court reversed a lower court decision and reinstated sex discrimination charges brought by David Schwake against Arizona State University (3). The Schwake decision brings the number of judicial decisions in favor of students accused of sexual misconduct to 184. (4)

Faculty members, who found their free speech rights curtailed by expansive definitions of sexual assault, welcomed the new Rule, as well. The National Association of Scholars decried how faculty members had been “denied the chance to respond to complaints, the right to confront and question witnesses, and even the right to be presumed innocent.” (5)

On August 9, Judge John Koeltl issued a ruling that allowed the regulation to be implemented as planned on August 14. Highlighting the long-awaited improvements for all parties, the Judge noted the regulations will “benefit both complainants and respondents by providing procedural guidance for grievance procedures,” and promised complainants “greater assurance” that decisions “will not be overturned because the process did not comply with due process.” (6)

The new Rule has been praised by a wide range of stakeholders, including the Independent Women’s Forum (7), National Association of Criminal Defense Attorneys (8), Harvard law professor Jeannie Suk Gersen (9), former ACLU president Nadine Strossen (10), former Virginia governor Douglas Wilder (11), and others (12).

Staci Sleigh-Layman, Title IX Coordinator at Central Washington University, explains, “These new changes give a lot of credibility and due process and equal kind of attention to the person accused as well as the person coming forward… they put in place a process that seeks to provide due process for both sides.” (13)

Links:

Believe the Victim Campus Title IX Trauma Informed Victim-Centered Investigations

PR: Campus Administrators Need to Restore Impartial Investigations, or Face a Surge in Costly Lawsuits

Post author By saveadmin
Post date August 11, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Campus Administrators Need to Restore Impartial Investigations, or Face a Surge in Costly Lawsuits

WASHINGTON / August 11, 2020 – SAVE has published an analysis that documents a dramatic increase in judicial decisions against universities involving biased investigations of sexual assault allegations. In 2014-2016, the average number of lawsuits alleging faulty campus investigations averaged three decisions per year. In 2020, that number is projected to reach 30 judicial decisions against colleges and universities, a 10-fold increase in the span of a few years.

Such investigations go by a variety of names: “trauma-informed,” “Start By Believing,” and “victim-centered.” These investigative approaches discount the presumption of innocence and begin with the assumption that the complainant is being fully truthful. As a result, exculpatory evidence is often discounted or ignored.

Five examples illustrate the due process deficiencies that judges considered in the university lawsuits:

In Neal v. Colorado State University-Pueblo, the university opened an investigation into a male student after a classmate saw a hickey on that student’s girlfriend’s neck during class. The girlfriend swore to the university the sex was consensual, but the university decided to “investigate” anyway. The university gave the male student less than 24-hour notice to the hearing and refused to give him a copy of the investigative report.
In Doe v. Regents of University of California, a female student accused a male student of sexual assault without providing any witnesses or evidence. Without any investigation, the university put the male student on interim suspension and then did not allow him access to the investigative report once one was created.
In Doe v. Purdue University, the university withheld the investigative report, which included a made-up “confession” by the accused student.
In Doe v. Brandeis University, the institution refused to interview the accused student’s witnesses, refused to inform him of what he was being investigated for, and refused to allow him to review the investigative report.
In Doe v. Syracuse University, the accused student alleged that the university trained its investigators that “perpetrators of sexual assault are supposedly rational actors who plan, practice, and become habitual rapists and sexual predators… [and that] inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma.”

On May 6, the U.S. Department of Education issued a new regulation that would require campus investigations to be impartial and free of bias. In response, the State of New York filed a lawsuit requesting a Preliminary Injunction against the Title IX regulation (1). SAVE then filed an Amicus Brief highlighting the fact that, “The Regulations require that any coordinator, investigator, decision-maker, or any person designated to facilitate an informal resolution process be free from conflict of interest or bias.” (2) The SAVE Brief urged the Court to reject the New York complaint.

This past Sunday, Judge John Koeltl issued a ruling denying the State of New York request (3). In the opinion, the judge favorably quoted a key provision from the new regulation:

During an investigation of a formal complaint, the school must “[p]rovide 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.” (page 12)

The new Title IX regulation is slated to take effect this coming Friday, August 14 (4). SAVE urges campus administrators to carefully review investigative policies and procedures to assure compliance with the new regulation.

The SAVE analysis, “University Administrators Need to Assure Impartial and Fair Investigations, or Face Legal Consequences,” is available online (5).

Links:

Campus Investigations Sexual Assault Sexual Harassment Title IX Trauma Informed

PR: Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

Post author By saveadmin
Post date August 3, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

WASHINGTON / August 3, 2020 – With less than two weeks remaining before the effective date of the new Title IX regulation, SAVE is advising university counsel to review institutional polices to assure Title IX investigations do not rely on flawed “trauma-informed” methods. The use of such investigative approaches, sometimes referred to as “victim-centered” or “Start By Believing,” is inadvisable for four reasons:

Regulatory Requirements: “Trauma-informed” means the investigator presumes that the complainant has experienced significant physical and psychological trauma, and interprets the complainant’s statements through that lens. This presumption is inconsistent with the text of the new Title IX regulation, which reads:

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….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.” [key words in italics] (1)

Case Law: In a growing number of lawsuits, judges have issued rulings against universities because of their use of trauma-informed investigations. In a recent judicial decision against Syracuse University, the federal judge noted: “Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account . . . becomes evidence that her testimony is truthful” (2).

Brooklyn College professor KC Johnson has summarized a number of these cases (3): “In a lawsuit against Penn, the court cited the university’s trauma-informed training as a key reason why the complaint survived a motion to dismiss. During the Brown university bench trial, the decisive vote in the adjudication panel testified that she ignored exculpatory text messages because of the training she had received. Ole Miss’ trauma-informed training suggested that an accuser lying could be seen as a sign of the accused student’s guilt. And at Johnson & Wales, the university was so disinclined to make public the contents of its training that it refused a request by the accused student’s lawyer to see it before the hearing.”

Lack of a Scientific Basis: Several peer-reviewed articles have discredited the scientific basis of trauma-informed investigations: Deborah Davis and Elizabeth Loftus: “Title IX and “Trauma-Focused” Investigations: The Good, the Bad, and the Ugly” (4); Sonja Brubacher and Martine Powell: “Best-Practice Interviewing Spans Many Contexts” (5); and Christian Meissner and Adrienne Lyles: “The summary of Training Investigators in Evidence-Based Approaches to Interviewing.” (6)

Journalist Emily Yaffe has described trauma-informed methods as “junk science.” (7) A compilation of other scientific critiques of trauma-informed is available online (8).

Criticized by Leading Title IX Groups: Several organizations have issued reports and statements that are critical of trauma-informed investigations: ATIXA: “ Trauma-Informed Training and the Neurobiology of Trauma;” (9) FACE: “Trauma-Informed Theories Disguised as Evidence”(10) SAVE: “Believe the Victim: The Transformation of Justice;” (11) In addition, 158 professors and legal experts endorsed an Open Letter that is critical of the use of trauma-informed methods (12).

A UCLA working group appointed by former California governor Jerry Brown concluded, “The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent.” (13)

“Trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable.

Links: