California Title IX

California’s ill-advised attempt to circumvent new Title IX rules

The California State Capitol in Sacramento.

The California Assembly is debating SB 493, a bill which will further entrench problematic procedures for resolving campus sexual assault accusations. The bill, which was introduced in 2019, has already passed the state Senate. It includes many provisions that are at odds with due process and may also conflict with the U.S. Department of Education’s new Title IX rules, which took effect on Aug. 14.

California has already locked into state law the misguided and impractical “affirmative consent” standard for determining whether a party has consented to sexual activity. It already requires that schools use the low “preponderance of the evidence” standard when resolving accusations of campus sexual misconduct. Enacting SB 493 would put due process at even further risk.

The bill is so devoid of procedural protections for the accused that the legislature, despite addressing the concept of burdens of proof, amazingly declined even to state that an accused student must enjoy a presumption of innocence before they may be found responsible. Instead the bill states:

[T]he investigation and adjudication of alleged misconduct under this section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.

If the bill’s point is that it is the institution — and not either of the students — that bear the burden of proof, that is certainly defensible. But the obvious problem is that while institutions often make the same argument that campus sexual misconduct proceedings are educational in nature as opposed to being adversarial, that argument is total nonsense, as several courts across the country have concluded. For example, in Doe v. Notre Dame, a federal district court, in response to the university’s argument that it didn’t need to allow an accused student to have access to an attorney because its disciplinary process was educational and not punitive, wrote: “This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”

The legislature would be wise to revise or reject SB 493 given that the provisions of the bill that are directly in conflict with the Title IX regulations are likely preempted.

Another example of SB 493’s ambivalence towards the rights of the accused is evident in the bill’s treatment of cross examination. The bill provides “cross-examination of either party and any witnesses shall be conducted indirectly, through the submission of written questions to the neutral factfinder in advance and with an opportunity for the other party to object.” The cross-examination provision is further limited and available only “if the institution determines that a hearing is required in order to determine whether a policy violation has occurred.”

In contrast, the federal Title IX rules require a live hearing whenever either party requests a hearing, and states that “decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The regulations further clarify that “[s]uch cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by the party personally . . . .” Prior to the finalization of the Title IX regulations, this bill’s allowance for cross-examination through the fact-finder would have been a modest step in the right direction, since many schools didn’t allow cross-examination at all. However, even then the bill’s provision was insufficient, because it didn’t require fact-finders put their rationales for declining to ask certain questions on the record for appellate review. But since the regulations now require more robust cross-examination, the bill’s language is squarely at odds with them.

The legislation also fails to protect the interests of the accused by declining to guarantee student parties access to all of the evidence in the institution’s possession. While it prohibits the institution from using evidence it failed to disclose, institutions can still get away with concealing exculpatory evidence—after all, no institution would use exculpatory evidence to make the case that the student committed the offense. Only by providing access to all of the evidence in the institution’s possession can a respondent adequately prepare for his or her defense.

Another shortcoming of the bill is that it only provides for an appeal if the university has an appeals process in place. The Title IX regulations, however, require institutions to provide appeals to both parties.

The legislature should also be careful to ensure that it includes sufficient procedural protections in any legislation addressing allegations of campus sexual misconduct. Indeed, courts across the country are emphasizing the necessity of procedural fairness. As a court reviewing Brandeis University’s treatment of students accused of sexual misconduct powerfully explained:

Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. 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.

California schools have not been providing fair procedures, and for the most part, SB 493 doubles down on the status quo. Still, one helpful provision of SB 493, which is more in line with the new regulations, requires institutions to ensure that the fact-finder — what they call the person responsible for investigating the complaint — is not the same person responsible for making disciplinary decisions.

The legislature would be wise to revise or reject SB 493 given that the provisions of the bill that are directly in conflict with the Title IX regulations are likely preempted. Such conflicts will only increase uncertainty among students, faculty, and administrators, and may even lead to federal Title IX investigation into school policies.

Aside from preemption (and the fact that legal experts and courts across the country, including several in California, are increasingly critical of the lack of procedural protections for accused students), the bottom line is that fundamental fairness demands that institutions treat both the rights of accusers and the accused seriously. FIRE would welcome a conversation with the bill sponsors to discuss our concerns with the legislation and how to ensure that California law produces fair campus proceedings consistent with federal law.

Campus Title IX

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

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:

  1. 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)
  2. 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)


  2. Super. Ct. July 9, 2019
  3. 30 Cal. App. 5th 1036 (Cal. Ct. App. 2019)
  4. 28 Cal. App. 5th 44 (Cal. Ct. App. 2018)
DED Sexual Assault Directive Office for Civil Rights Victims

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


Contact: Rebecca Stewart

Telephone: 513-479-3335


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]

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

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.










Title IX

Two Courts Deny Preliminary Injunction Against the New Title IX Rule. Are These Decisions Harbingers of What’s to Come?

by: Gail Norris, Senior Counsel
Bond Schoeneck & King PLLC

Two federal court judges refused to issue a preliminary injunction to stop the new Department of Education’s Title IX rule (the Rule) from taking effect on its August 14, 2020 effective date. In the meantime, there remain four lawsuits1 pending against the Department of Education challenging the Rule on a number of legal grounds. Although the legal standards for issuing a preliminary injunction are different than those used to reach a decision on the merits of a suit, the decisions on preliminary injunction give some indication of the uphill battle the pending lawsuits face.

New York Decision

In State of New York, et. al. v. United States Department of Education, et. al., the plaintiffs brought suit alleging that the Rule violated various provisions of the Administrative Procedures Act and contended that the Department of Education’s (DOE) actions in adopting the Rule were “arbitrary and capricious.” The plaintiffs moved for a preliminary injunction to stop the implementation of the Rule while the suit is pending.

In his decision, U.S. District Judge John Koeltl, Southern District of New York, reiterated that the well-established standards for the issuance of a preliminary injunction including that the plaintiffs show that they are likely to succeed on the merits. As such, Judge Koeltl gave us a look at his view of the merits of the underlying claims in the suit. In his decision, Judge Koeltl serially addressed the plaintiffs’ complaints about the Rule’s definition of sexual harassment, its prescriptive grievance process, its limited definition of “program or activity,” and plaintiffs’ claims that the DOE generally failed to justify or adequately consider other aspects of the Rule. The decision echoes many of the comments discussed in the lengthy preamble to the Rule about each of the plaintiffs’ claims.

In the end, the judge concluded that the reasons provided by the DOE for changes in past policies and the rationale for the provisions of the Rule were adequate to satisfy the court that the department’s rulemaking was not arbitrary and capricious. As Judge Koeltl noted, while an agency must show that there are good reasons for its new policy, it need not show that the reasons for the new policy are better than the reasons for the old one. As such, the court determined that the plaintiffs did not show that they were likely to succeed on the merits of their claims and declined to grant an injunction.

Attorneys General Decision

In Commonwealth of Pennsylvania, et. al. v. Elisabeth Devos, et. al., 17 states and the District of Columbia sued challenging the Rule and also moved for a preliminary injunction to stop the implementation of the Rule pending judicial review of the suit.

In his decision, U.S. District Judge Carl Nichols (D.C.) also cited the standards for the issuance of a preliminary injunction, including that the plaintiffs show that they are likely to succeed on the merits. Judge Nichols’ decision, too, gave us some insight to his view of the merits of plaintiffs’ claims in the underlying suit.

Plaintiffs in this suit proffered some claims that were the same as those in the New York case. These include claims that the definition of sexual harassment was improper, that the Rule’s requirement that the harassment be connected to an educational program and activity was ill considered, and that several aspects of the grievance process were objectionable. In addition, the plaintiffs added claims (1) that the mandated grievance process in K-12 schools exceeded the department’s authority and was arbitrary and capricious by impermissibly intruding into the school’s disciplinary procedures and failing to account for the unique environment of K-12 schools, and (2) that the Rule impermissibly restricted schools from taking a more proactive approach to sexual harassment by investigating a broader array of allegations.

Judge Nichols reviewed many of the arguments (also discussed in the preamble to the Rule) on each of these issues. The judge concluded that, while it may be that the Rule is overly prescriptive and that it might be better to fashion a rule that grants more flexibility to investigate, make determinations and discipline sexual harassment, the court is not supposed to substitute its judgment for that of the DOE to decide whether another alternative is better. Rather, it can only decide if the Rule is arbitrary and capricious.

What the Decisions Mean for the Pending Lawsuits

Both decisions refer to the well-developed rationale expressed by the DOE in the 2,000-page preamble to the Rule. Most of the issues raised by the plaintiffs in the pending suits were the subject of some of the 125,000 written comments submitted to the department when the proposed rule was published. The department’s use of the preamble to lay out the issues, discuss the pros and cons raised by the comments and articulate a reasoned justification for the final Rule’s provision has served it well in the defense of these suits. As Judge Koeltl wrote in his decision, the comments discussed in the preamble “showed that there were bitter disputes about which policy was the most appropriate to implement in almost every aspect of the Rule’s provisions.” Plaintiffs’ arguments in their lawsuits repeat one side of the disputes referenced in the judge’s comments.

The legal standard that a court will used in addressing the claims in the pending lawsuit is different than, and largely not as burdensome as, the standard imposed by the courts in deciding whether to issue a preliminary injunction. The legal standard used in most of the plaintiffs’ claims in the existing lawsuit is whether the DOE was “arbitrary and capricious.” The decisions of Judge Koeltl and Judge Nichols give us some early signals that the rationale laid out by the DOE in the preamble of the Rule for the most controversial aspects of the Rule is likely to withstand the challenge that the department’s rulemaking was arbitrary and capricious.

Still, there is uncertainty about how the courts in the remaining two lawsuits might view similar claims or whether the courts will reach a different conclusion after a fuller briefing on the merits. The resolution of these cases is likely to take months. In the interim, a presidential election will occur that could have further impact on the Rule.

Educational institutions subject to the Rule might consider what their policies should look like should all or parts of the Rule be overturned by a court or revoked under a new administration so that they can move quickly to eliminate those portions of the Rule that they find most troublesome.

1 In addition to the lawsuits brought by the State of New York and by Attorneys General from 17 states that underlie the preliminary injunctions requested and discussed in this memorandum, suits have also been brought against the U.S. Department of Education by the American Civil Liberties Union and the National Women’s Law Center.

Title IX

Title IX and Targeting the Two-Track Approach

Trump’s Education Department has restored some balance to campus treatment of accused violators, but colleges are trying to get around the new rules.

August has been a big month for Title IX, the federal law banning sex discrimination at schools receiving federal funds. Two federal district courts allowed the Trump administration’s new Title IX regulations to take effect on schedule (August 14), and at least two schools, Princeton and Tulane Universities, announced they are creating two disciplinary tracks for campus sexual-misconduct complaints — one reflecting federal Title IX policy and the other reflecting the school’s own policy. Given the history of Title IX and the politics of campus sexual-assault allegations, this “two-track” approach should be closely watched.

Title IX was an uncontroversial 1972 ban on sex discrimination in education that became controversial when it was used to fund women’s college sports — and defund men’s — and was later applied to sexual misconduct, considered as a form of sex discrimination. This latter development was originally limited to quid pro quo propositions — high grades in exchange for sex, for example — but later was extended to the idea of “hostile environment” sex discrimination and then grew to include even the crime of violence, or sexual assault, as sex bias. These expansions came mostly from bureaucrats in the Clinton and Obama Education Departments — with the help of a few liberal judges — but were well received by feminists on campus, especially in the Title IX office, which quickly became known as the “campus sex police,” eagerly investigating and punishing any student accused of sexual assault. Wrongly accused students then began to successfully sue their schools, claiming due-process violations or contractual breaches of student handbooks when Title IX offices presumed guilt, withheld evidence, and banned the live questioning of witnesses or accusers.

The new regulations restore balance to these Title IX proceedings by mandating basic due process, such as the presumption of innocence, the right to see evidence, and, in higher education, the right to a live hearing to question accusers and cross-examine witnesses, among other things.

They also restore an objective and more education-related definition of “hostile environment” sex discrimination, based on a 1999 Supreme Court case, Davis v. Monroe County Board of Education, which found that Title IX holds schools responsible only for “conduct on the basis of sex” that is “so severe, pervasive and objectively offensive” that it effectively denies educational access. The new regulations also include two other categories of prohibited conduct — quid pro quo propositions and sexual assault.

Opponents of the new regulations quickly challenged them in court, however, claiming they were arbitrary and capricious and therefore should not take effect. Judges in New York and D.C. last week disagreed, finding that Trump’s Education Department had considered public input and had explained its rationales (the rule was issued with 2,000 pages of comment).

The court complaints (four were filed) object to the Davis standard, arguing that some acts may be severe but not pervasive — what if a student is shown pornography but only once? — while other acts may be pervasive but not initially severe, such as recurring taunts of a sexual nature. Must a student wait until educational access is “effectively denied” before complaining to the Title IX office?

Actually, yes. Because Title IX is quintessentially a guarantee for educational opportunity and not a sex-crimes law, it should apply only when educational opportunity is violated. In effect, the new regulations help bring Title IX back to that original purpose. (In fact, because the last category of prohibited conduct, sexual assault, presumes that such opportunity is violated, it deserves more scrutiny by the courts and others.) Schools are free, however, to ban taunts or pornography or any other “conduct on the basis of sex” in their own student codes, and now Princeton and Tulane have done just that: They are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.

Is this a move to evade the new due-process requirements? At Princeton, for example, its separate track allows for written cross-examination of witnesses, while the Trump regulations require a live hearing with in-person questioning of parties and witnesses, stating, “Such cross-examination at the live hearing must be conducted directly, orally and in real time by the party’s advisor of choice.”

If evasion is the intent of such schools, they should realize that this probably won’t work:

While not every complaint is a Title IX complaint, every school program, including disciplinary procedures, must comply with Title IX. And due-process deprivations can themselves become a Title IX issue if they favor one sex. One court explained: “Title IX . . . is understood to ‘bar the imposition of university discipline where gender is a motivating factor in the decision to discipline.’” In effect, if procedural problems suggest sex bias, even on a non–Title IX disciplinary track, an accused student can invoke Title IX as a shield to ensure evenhandedness.

But even more simply, courts are increasingly requiring schools to provide due process, including live hearings in sexual-misconduct cases, as a matter of fundamental fairness rather than regulatory mandate. That was the result of Doe v. University of the Sciences in Philadelphia, a Third Circuit case decided earlier this year: The court there found that procedural deficiencies violated both Title IX and the school’s student handbook, which guaranteed “fair” and “equitable” treatment of students. The court additionally noted that fairness was also required by state case law and the Pennsylvania Administrative Code, which governs private as well as public institutions. The court insisted that “basic fairness in the context of sexual assault investigations requires that students accused of sexual assault receive these procedural protections.” For the Third Circuit, which also covers Princeton, N.J., such “procedural protections” include live hearings and cross-examination. Princeton’s general counsel should have a look (will written cross-examination suffice?).

Of course, schools would do well to include due-process protections in all of their disciplinary tracks; but given the seriousness of sexual misconduct and the history of Title IX abuses, discipline on this second track will be closely watched for fundamental fairness — at Princeton and Tulane and elsewhere.

Teresa R. Manning is the policy director at the National Association of Scholars and the author of its report Dear Colleague: The Weaponization of Title IX, scheduled for release in September.

Title IX and Targeting the Two-Track Approach

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


Contact: Rebecca Stewart

Telephone: 513-479-3335


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)


Title IX

How Some Universities are Bypassing Trump’s New Title IX Rules

If schools follow the Trump administration’s new Title IX rules, survivors no doubt will be reluctant to report sexual harassment and assault. While some schools are accepting the rules and adopting restrictive policies, others are finding creative ways to get around the rules by designing policies that will minimize these harmful effects. We examined a few of these new policies—here’s what we found.

Read More Here:

Department of Education Due Process Office for Civil Rights Title IX

Numerous Groups and Individuals Applaud New Title IX Regulation

INDEPENDENT WOMEN’S FORUM: “IWF applauds the Title IX federal regulations released today by the Department of Education. The new regulations—for the first time—codify the obligation of schools to address claims of sexual misconduct. They also require that schools conduct all sexual misconduct investigations without bias and in a non-discriminatory manner.”

YOUNG AMERICA’S FOUNDATION: “These bold reforms – driven by unprecedented input from the American people – will restore constitutional principles and allow students to be confident in fairness and accountability from their schools.”

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION: “Advocates for free speech and due process on campus won one of their biggest-ever victories today with the finalization of long-awaited new Department of Education Title IX regulations. The regulations guarantee critical due process protections that Americans recognize as essential to securing justice, but that have for too long been denied to students accused of sexual misconduct on college campuses.”

JEANNIE SUK GERSEN, HARVARD LAW SCHOOL: “The major story here is that for the first time, the regulations are really making it clear that there are certain elements to a fair process. It’s not just telling schools to be fair, which they have been told by the Education Department multiple times. These regs are actually laying out some of the elements that the department thinks are essential to making a process fair in the college disciplinary context.”

NINA J. GINSBERG, PRESIDENT OF THE NATIONAL ASSOCIATION FOR CRIMINAL DEFENSE LAWYERS: “The restoration of due process on campus is essential…America’s colleges and universities are where millions of young adults are not just learning from textbooks and lectures — they are also becoming civically engaged members of a community, of a social order. We cannot expect young adult students to understand and defend core constitutional principles once they leave campus if some of those core principles that apply in America’s justice system are honored only in the breach by the educational institutions presiding over student misconduct proceedings.”

NADINE STROSSEN, FORMER PRESIDENT OF THE ACLU: “One of the best things about the DeVos guidelines is that it really goes back to square one of what the purpose of Title IX is.”

JUDGE RAYMOND KETHLEDGE, U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT: “Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

KIMBERLY LAU, JAMES FIGLIOZZI AND BRANDEN LYNN, ATTORNEYS AT WARSHAW BURSTEIN: “Placed in an unenviable position, DOE sought to strike a balance by integrating the bedrock principles of due process found within our legal system while also providing continuous support to complainants… As legal practitioners, we believe the final regulations, while not perfect, represent a step in the right direction for Title IX.”

MICHAEL POWELL, NEW YORK TIMES: “Ms. DeVos’ actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused.”

DOUGLAS WILDER, FORMER GOVERNOR OF VIRGINIA: “…the Department of Education has taken a major step toward improving one area with a longtime culture of injustice. Education Secretary Betsy DeVos recently strengthened Title IX protections for the survivors of sexual misconduct on campus, while instituting due process in campus proceedings.”

JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that…[it’s] one of the basic tenets of our system…everyone deserves a fair hearing.”

STACI SLEIGH-LAYMAN, EXECUTIVE DIRECTOR OF HUMAN RESOURCES AND THE TITLE IX COORDINATOR AT CENTRAL WASHINGTON UNIVERSITY: “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.”

BUDDY ULLMAN, FORMER PROFESSOR AT THE OREGON HEALTH & SCIENCE UNIVERSITY: “I am a progressive Democrat and enthusiastic supporter of the new Title IX Rule that was recently issued by Education Secretary Betsy DeVos. The DeVos Rule provides colleges and universities with a detailed and uniform modus operandi on how they must handle gender discrimination, sexual harassment, and sexual assault disputes. The new regulations emphasize fairness, equitability, due process protections, and extensive supportive measures for all parties, all of which have been.”

R. SHEP MELNICK, BROOKINGS INSTITUTION: “Not only was the Education Department’s rulemaking process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago… the new administrative regulations are less radical—and more demanding—than the Education Department’s critics often suggest… the Department of Education deserves credit for going through a transparent, time-consuming, and rigorous rulemaking process and respecting the Supreme Court’s interpretation of Title IX.”

What They’re Saying

Department of Education Title IX

U.S. Department of Education Launches New Title IX Resources for Students, Institutions as Historic New Rule Takes Effect

AUGUST 14, 2020
WASHINGTON — U.S. Secretary of Education Betsy DeVos launched new resources to help students and schools understand the protections provided by the Department’s historic regulation on Title IX, as the Rule takes full effect today. The Rule, announced on May 6, 2020, following years of stakeholder input, public comment and careful deliberation, extends many new protections against sexual harassment, and strongly safeguards the rights of all students, including the right to due process. The Department also launched a new website that provides a one-stop resource for this key information, including how to file a complaint, an overview of the Rule’s protections for survivors, and a detailed webinar on how schools can fully implement and uphold the new provisions in the law.

“Today marks a new era in the storied history of Title IX in which the right to equal access to education required by law is truly protected for all students,” said Secretary DeVos. “Every student should know that their school will be held accountable for responding to incidents of sexual misconduct and that it must treat all students fairly. This rule, as courts have recently noted, restores balance to the scales of justice in our schools, ending one of the most infamous and damaging overreaches of the previous administration.”

The new website will serve as an online hub for information and resources students can use to understand their rights under Title IX and what the new Rule means for them. It also provides a robust fact sheet for students that dispels myths and falsehoods about the Rule. For instance, the Rule expressly prohibits students from directly cross-examining one another, and it requires schools to provide support services to students, even if a student chooses not to move forward with a formal complaint process. The website is also home to information on how courts have opined on the new Rule and the importance of due process and includes statements from lawmakers, respected attorneys, and other major thought leaders on the importance of due process for all students.

To access the website, please click here

Background on the Title IX Rule:

Since the beginning of her tenure, Secretary DeVos has worked to ensure all students have the freedom to learn in a safe environment, free from discrimination. The regulation carries the full force of law, unlike the previous administration’s much-criticized “Dear Colleague” letter on the topic that denied students basic due process protections and led to courts frequently overturning school decisions, subjecting survivors to further trauma. With the benefit of robust public participation in the rulemaking process, the Title IX regulation reflects Secretary DeVos’ commitment to ensuring that every person’s claim of sexual misconduct is taken seriously while ensuring the fair treatment of every person accused of such misconduct.

Key provisions of the Department of Education’s new Title IX regulation:

  • Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
  • Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely
  • Requires schools to offer clear, accessible options for any person to report sexual harassment
  • Empowers survivors to make decisions about how a school responds to incidents of sexual harassment
  • Requires schools to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
  • Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment
  • Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
  • Restores fairness on college and university campuses by upholding a student’s right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
  • Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
  • Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard, and to apply the selected standard evenly to proceedings for all students and employees, including faculty
  • Provides “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records
  • Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding
  • Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely
  • Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment

Campus Civil Rights False Allegations Sexual Assault Sexual Harassment Victims

The New Title IX Regulation: Historic Civil Rights Victory

“Victory belongs to those that believe in it the most and believe in it the longest.” – Randall Wallace

It is not common in one’s lifetime to experience a Civil Rights victory as historical as the one we celebrate today.

Today, August 14, 2020, the new Title IX regulation implementing rules for sexual harassment goes into effect at schools across America.  SAVE celebrates this victory for our nation, our students, and faculty, many of whom have been subjected to unfair campus disciplinary hearings over the past nine years.

Since 2011, when the controversial Dear Colleague Letter on sexual violence was released, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with “expulsion” or “suspension”, and countless professors have been fired or censured.  There is no limit to the trauma and emotional abuse these persons have experienced.

Many of these persons complained. As a result, the Department of Education reported that following release of the DCL, the number of Title IX complaints to the OCR increased nearly 5-fold, from 17,724 (2000-2010) to 80,739 (2011-2020).

Today we turn the page. 

Margaret Thatcher famously said, “You may have to fight a battle more than once to win it.”  Secretary of Education Betsy DeVos, her staff, and individual civil rights advocates and groups, well understand the numerous battles that were fought to get to where we are today. Let’s highlight some of these efforts:



  • The Department of Justice reported the annual rate of sexual assault among college age females was 1/1000 women, refuting the widely disseminated one-in-five number.
  • Title IX for All was established, which offers a Database of OCR Resolution Letters and a Legal Database of lawsuits against universities.
  • A group of Harvard University Law Professors issued the statement, Rethink Harvard’s Sexual Harassment Policy.
  • A group of Penn Law faculty members issued their Open Letter, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities
  • The American Association of University Professors issued a report, The History, Uses, and Abuses of Title IX
  • Professors from around the country issued Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault
  • SAVE sent a letter calling on Congress to Rescind and Replace the Dear Colleague Letter (April 4), issued a Special Report, “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases;” and held meetings with staffers in 60 offices in the Senate and House of Representatives to discuss problems with the OCR policy. Over subsequent years, SAVE representatives would hold over 1,000 meetings with legislative staffers.
  • 2,239 articles and editorials were published critical of the OCR policy.



  • On May 6, 2020 the Department of Education issued its final rule.
  • Four lawsuits were filed opposing the Rule, and amicus briefs were filed by SAVE, FACE, and FIRE.
    • Attorneys General lawsuit (Request for Preliminary Injunction denied on 8/12/20)
    • ACLU lawsuit (Pending)
    • National Women’s Law Center lawsuit (Pending)
    • State of New York lawsuit (Request for Preliminary Injunction denied on 8/9/20)

Today, August 14, 2020 the Final Rule is being implemented on college campuses and K-12 schools across America.

This has been an incredible journey ending in a momentous victory, but one that is not over.  The letter of the law was penned by our U.S. Department of Education, and now the spirit of the law must be carried out to ensure our students and faculty receive every protection the Title IX law provides.