Campus Sexual Assault Sexual Harassment Title IX Trauma Informed

Healthcare Providers are Being Indoctrinated with ‘Trauma Informed’ Myths

Healthcare Providers are Being Indoctrinated with
‘Trauma Informed’ Myths

Colleen Farmer, BSN, RN

June 1, 2021

I have been a Registered Nurse for the past 32 years and I have worked in the emergency room for the last 25 years. I love my job and love taking care of my patients. I am concerned, however that my coworkers –nurses, doctors and physician assistants – who recently completed the “Trauma and Sexual Assault Survivor Support Training” course were immersed in biased theories that are not scientifically supported.1

What is a trauma-informed approach?

To be “trauma-informed” means you take a “victim-centered or a “Start by Believing” approach to the care you are providing.2 There are two parts to a trauma-informed approach.

The first step “recognizes the presence of trauma symptoms, acknowledges the role that trauma has played… and how trauma interferes with one’s ability to cope.”3 These trauma informed principles then allow healthcare providers to assess and modify care with an “understanding of how trauma affects the life of an individual…” so we can “avoid triggers and re-traumatization.”3

There is nothing new about healthcare providers recognizing the role of trauma in the care of our patients. We see trauma every day in an emergency room, and I would argue that our role on how to handle trauma has not changed. Our goals have always been to recognize where our patients are, be kind, caring, sensitive, supportive and empathetic while being a good active listener to all of our patients.

Nursing care has always looked to promote a safe environment, trustworthiness, and transparency while being respectful, using clear instructions, effective communication and always encouraging our patients to voice how they feel, empowering them with choices and being a part of their own care plan as we always have.

Trauma-informed theory is not scientifically proven

The second part of a trauma-informed approach is the ”science” of neurobiology. It is explained as a stressful or life-threatening event that causes a “flood of hormones… resulting in a complete shutdown of bodily function.” This state of mind is referred to as “paralysis, tonic immobility or freezing.” The “trauma physiologically impedes the victim’s ability to resist or coherently remember the assault resulting in an impaired memory or fragmented memory recall due to the disorganized encoding that occurred during the incident.”4,5 Various experts state, the “talk on fragmented memory and tonic immobility is unsupported by prevailing scientific research findings.”5

Many scientists, psychology professionals, and groups have published papers explaining how trauma-informed concepts are unsupported. The US Air Force Office of Special Investigations, for example, sounded the alarm calling for the end of “trauma-informed” training. Regarding the use of trauma-informed training methodology (FETI), the Air Force Office stated that it is “loosely constricted, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.”6

“There is no scientific evidence to support the idea that a trauma-informed approach should be offered as a valid clinical method for working with victims of trauma.”6 Simply stated, the science of neurobiology is not empirically supported. 1,5,7,8

The flaws and failures of trauma-informed training

– In trauma-informed training, tonic immobility is not only applied in life threatening situations but also expanded to include low-level, non- contact incidents or stressful incidents.9,10

– Current trauma-informed training teaches that a patient who remembers every detail of an incident or a patient who remembers little to nothing of an incident both indicate a trauma has occurred.1,4

When we make the assumption that trauma is the only possible cause, this can lead to misdiagnoses, because providers are discouraged from looking at other possible causes of memory loss such as mental illness, drug/alcohol problems or other factors. In defining trauma the Journal of Adolescent Health states, “A trauma-informed approach does not necessarily seek disclosure…”11 however, as clinicians, we need to seek the truth in order to properly treat, diagnose and care for our patients.

– In cases of sexual assault, trauma-informed, victim-centered, or “Start By Believing” training teaches us to view the patients as a “victim” vs. an alleged victim. Not only is this presumptuous, it violates both our legal and sworn ethical codes to remain neutral and impartial in our collection of evidence in our role as a sexual assault nurse examiner (SANE) provider.12 Not only are nurses and doctors being trained in this debunked science, but also our law enforcement, court personnel, judges, attorneys, staff and students on college campuses and more. 13,14,15

– When trauma is used as a preconceived assumption to justify inconsistent behavior, our objectivity as a SANE nurse or provider becomes compromised, as relevant evidence might be excluded.9 Trauma-informed training often emphasizes that documentation should “corroborate the victim’s account.”5,16,17,18 Training that suggests SANE nurses or providers corroborate a patient’s account of events, leading us to discredit inconsistencies in a patient’s story places us in the role of judge and jury, which is not our job. This violates our legal and ethical duties requiring us to remain neutral. As clinicians, we should follow scientific and lawful procedures to collect all evidence, without bias, to ensure quality of care for those who allege they have been assaulted. Our charting and reporting of events in an accurate, fair and complete way, is essential to providing good quality care for our patients.

– Trauma-informed training, care, approach, or theory, has become so broadly used and poorly defined it has the unfortunate effect of turning almost anyone into a “victim” or “survivor.”7

New York State trauma-informed programs have included trainings led by Dr. James Hopper. Dr. Hopper has stated, “Focusing on the brain…I’m able to… truly change lives, institutions, and ultimately cultures.”19 “Effective trauma-informed…methods are essential to treating victims justly…and holding perpetrators accountable.19 Hopper’s real intent appears to go well beyond what any science would support.

– A Washington Post and Kaiser Family Foundation Survey found 44% of women think when they give a guy a “nod in agreement,” that isn’t enough for consent. 24% of women surveyed agreed that “sexual activity when both people are under the influence of alcohol or drugs…” “Is sexual assault,” and 35% of women felt “sexual assault accusations are often used by women as a way of getting back at men.”20 This survey shows us there are real life consequences in being trained to “Believe the Victim.” When a nod of the head, having a drink or an angry partner is all that separates someone from a rape or sexual assault charge, we need to be very diligent in factually documenting all potential evidence. In these types of cases, the potential for harm in “corroborating a victim’s account” is very high.

The high stakes of trauma-informed policies

Currently, college and university lawsuits are the best place to see the failures of trauma-informed training. The training has been well established for the last decade. It is on our campuses, where the seed of “believe the victim” began and has grown to become the cultural movement of  #MeToo. More and more due to the biases of trauma-informed training, courts are denouncing victim-centered philosophies. They are showing they support “clear standards for admissibility of scientific evidence in court.”21,22

Trauma-Informed training does not meet this standard and has been questioned in many court cases.9,21 “Misuse of trauma-informed policies was clearly evident in Doe v. University of Mississippi. The court found trauma-informed training materials caused those trained to make “an assumption … that an assault occurred.” Even the Association for Title IX Administrators, a prominent agency that leads the way on campus policy and training, had this to say about trauma-informed training, “You will need to assess whether you can afford to have a non-empirical, biased training on your resume in this age of litigation.”23

Where do we go from here?

The “Trauma and Sexual Assault Survivor Support Training” that New York healthcare providers have attended was based on the flawed concepts of neurobiology outlined above. We need to question why medical professionals are being “trained” in unsupported scientific theory! The title of the training itself should make us question the goal of what is being taught and why we as medical professionals received training and instruction from college advocates, who work from a “survivor-centric” viewpoint that lacks transparency, accountability and is fraught with conflicts of interest.15

We need to end the unscientific “trauma-informed” training of all professions. It is extremely important that we, as nurses and providers conducting evaluations in cases of rape, sexual assault or sexual violence adhere to methods that have been scientifically validated.6 We would not want to see rape cases thrown out of court due to the use of this flawed training. We are capable of recognizing “real” trauma without the unethical use of trauma-informed training.


  1. Trauma Informed Junk Science: trauma-informed/
  2. Center for Prosecutor Integrity Start by Believing:
  3. What Does “Trauma Informed Care” really mean? J. Kellie Evans, LCSW, CSOTP May 1, 2013:
  1. Trauma Informed Junk Science: trauma-informed/
  2. Center for Prosecutor Integrity Start by Believing:
  3. What Does “Trauma Informed Care” really mean? J. Kellie Evans, LCSW, CSOTP May 1, 2013:
  4. Jim Hopper PhD:
  5. The Bad Science Behind Campus Response to Sexual Assault by Emily Yoffe September 8th, 2017:
  6. Report on the use of the Forensic Experiential Trauma Interview (FETI) Technique within the Department of the Air Force October 2015:
  7. Trauma-Informed Approaches: The Good and the Bad by Michael S. Scheeringa, MD, Sept. 17, 2017:
  8. Truthiness of the Trauma-Informed Science-Policy Gap by Michael S. Scheeringa, MD, Sept. 11, 2018:
  9. FACE Families Advocating for Campus Equality, Trauma Informed Theories disguised as evidence:
  10. Stress Is Not Trauma by Michael S. Scheeringa, MD, June 6, 2017

  1. College Sexual Assault: A Call for Trauma-Informed Prevention Heather L. McCauley, Sc.D. Adam W. Casler, M.Ed.
  2. Nursing Ethical Considerations Lisa M. Haddad; Robin A. Geiger. Last Update: September 1, 2020:
  3. Trauma-Informed Courts: The How and Why By Carl Donovan Trauma Training for Criminal Justice Professionals:
  4. ATIXIA Training Materials Paul Smith’s College Building Partnerships among Law Enforcement Agencies, Colleges and Universities: Developing a Memorandum of Understanding to Prevent and Respond Effectively to Sexual Assaults at Colleges and Universities training/
  5. Paul Smith’s College Coordinated Community Response

  1. This Campaign Against Sexual Violence Strongly Favors Female Victims, Strips Men Of Due Process Wendy McElroy June 07, 2018:
  2. Has EVAW Been Moderating or Covering its Tracks? By James Baresel February 16,2021:
  3. CPI ‘Believe the Victim:’ The Transformation of Justice:
  4. The Brain Under (Sexual) Attack Why people don’t fight, why memories are fragmentary – and some big implications. Jim Hopper, PhD – December 14, 2017

20. Washington Post-Kaiser Family Foundation Survey of College Students on Sexual Assault:

  1. Center for Prosecutor Integrity Judges: Faithful and Impartial….?

  1. Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade SAVE 2017:
  2. ATIXA Position Statement Trauma-Informed Training and the Neurobiology of Trauma August 16, 2019:
Campus Sexual Assault Sexual Harassment Title IX

I’m Afraid to Send My Son to School: How Title IX is Hurting the Next Generation of Men

I’m Afraid to Send My Son to School: How Title IX is Hurting the Next Generation of Men

Lindsay R. McKasson, Esq.

May 27, 2021

If you had asked me five years ago what my law practice would look like today, I never would have guessed I would be representing wrongfully accused students. I did not even know Title IX was a legal practice area. I certainly would not have realized that it is an epidemic sweeping America, forever changing the lives of boys and young men.

I have long considered myself a liberal and a defender of women. It seems, however, that progressives has forgotten about due process, a critically important civil right. We live in an age where it only matters that one is accused, not whether they are guilty or “responsible” (the terminology schools use in convicting students of misconduct). As a result, hundreds if not thousands of boys and young men are being accused each year of actions that may violate a school’s Title IX policy, consequently changing their lives forever. They will always be considered “charged” even if found not responsible.

During the days, months, and sometimes more than a year of investigating the matter, accused boys and young men live in constant fear that the school will make the wrong decision and that they will be suspended or expelled, forever changing their life’s trajectory.

The best-case scenario after being charged at a school is that one is found “not responsible.” This is usually after weeks and months of the investigation pending. Lives are turned upside down trying to prove one’s innocence. Reputations are ruined. Countless money is spent on attorneys’ fees. It is an emotional roller coaster that causes many of my clients severe emotional harm. They end up with PTSD, or worse, suicidal. I tell them to have hope, that it will get better. But, I also know the stakes are high – their future opportunities are completely at risk.

I think many people hearing about this issue assume this is happening only to guilty men on college campuses. They hear “Title IX” and believe it is sexual assault or rape. Many of my cases, however, involve young men and boys, and the “charge” comes down to improper language.

I have one client who was essentially accused of using improper language. No touching was involved or alleged. He was expelled from his high school. His scholarship and admission to college revoked. Not only will he never trust a female again, but his life is also completely different than the one he worked so hard to build. This was a collegebound male who now has no secondary education.

My youngest client is a fifth grader. I have another client who was “investigated” in eighth grade for actions that allegedly occurred in seventh grade. He was found “not responsible” for the sexual activity of which he was accused. But, the accusing student, who has been caught in many, many lies during the course of the school’s and our own investigation, cannot let it go. Nor can her mother, which is often the case. They sued him. The case has gone on for years. Next summer, he will simultaneously be preparing for college and defending against false allegations that arose when he was in seventh grade.

Many of my cases do not involve sexual assault. If it does, many of the allegations are so far outside of the realm of reality, they appear false on their face. Brett Sokolow, President of the Association of Title IX Administrators (ATIXA), recently stated that around 50% of the Title IX claims made by complainants are “baseless.”[1] Yet, the schools seemingly do not care. If there is an allegation made, they must investigate and “charge” the accused. The schools are so afraid of lawsuits and getting “cancelled” by “woke culture,” they side with the female complaining student, no matter the ludicrousness of the allegations.

My experience is that many of these matters involve false allegations or allegations that do not amount to sexual assault or rape. Each false allegation not only hurts the males who are accused but also delegitimizes true sex crimes that occur on campus. For those true crimes, there is a system already in place – the American criminal justice system wherein due process is protected. Moreover, there are also options in civil court. As it stands right now, however, students are going to the universities where due process is not as protected. Moreover, it is in jeopardy should the Title IX Regulations that went into effect in August 2020 get repealed.

Title IX’s intentions of protecting women from campus rape are absolutely valid. The road to hell, however, is paved with good intentions. In the process of trying to protect women, men’s lives are being ruined. Worse than that, no one seems to care. The schools show a callous disregard for their male students. They could not be doing more damage to these young men and boys.

Now, I have a six-month-old son. I have already begun making mental notes of everything I will tell him when I send him off to school. And yes, I do mean elementary school. When I contemplate the wisdom I have gained, I become overwhelmed because I know the answer is nothing will protect him.

If someone decides to make up a lie, take something out of context, or retroactively change their mind about a consensual sexual activity, not much can be done to rectify the situation. The best-case scenario after his life is turned upside down is the school miraculously finds him not responsible. Consequently, he will never be the same. How am I supposed to have this conversation with my son? Is my best advice being to avoid school altogether and homeschool him? I hope not.

Is this really the future for our sons? Is this the America where we want to live? Again, I hope not.

I find some solace in the prohibition on “materially false statements” in the new Title IX Regulations. Specifically, 34 CFR Section 106.71 provides a safe harbor for schools to discipline those complainants (and respondents) that make “materially false statements” to schools investigating these matters. This provision should provide a strong deterrent to those students that would falsely and maliciously accuse students. Without such a regulation, I worry that there will be no incentive against making false allegations and every incentive towards making one.

All Americans should want a system that protects students from assault and from false allegations. If the Biden Administration reverses the recent Regulations, I worry that it will be easier for our sons to be falsely accused. This should concern all mothers. I hope it concerns all Americans.



Campus Sexual Assault Sexual Harassment Title IX

Doe v. Purdue: Lodestar Decision On Due Process and Sex Discrimination

Doe v. Purdue: Lodestar Decision On Due Process and Sex Discrimination

Philip A. Byler, Esq. (winning appellate lawyer in Doe v. Purdue)

Nesenoff & Miltenberg LLP

May 21, 2021

When then Education Secretary DeVos announced on May 6, 2020, what would be the current Title IX regulations, she pointed to three cases that were particularly instructive, one of which was the Seventh Circuit’s decision in Doe v. Purdue.[1]  Secretary DeVos noted that it was a three-woman panel with then Circuit Judge Amy Coney Barrett as the author of the opinion.[2]  A short review of Doe v. Purdue provides an understanding that the current Title IX regulations, in mandating due process and fairness in Title IX sexual misconduct proceedings,[3] were based on well considered decisional law dealing with actual human experience.

Doe v. Purdue was a constitutional due process and Title IX discrimination suit brought on behalf of Plaintiff John Doe.  He was falsely accused of sexual assault by John Doe’s former girlfriend five months after the supposed occurrences of non-consensual sexual touching (never mind that John Doe and Jane Doe had a two-month long period of consensual sexual intercourse about which no complaint was made); and John Doe was suspended by the University and dismissed from Navy ROTC because of the university suspension.   John Doe’s dream and hope to serve his country as a Naval officer was destroyed after a University disciplinary process, rightly called “Kafkaesque” by John Doe, in which, among other things, there was no hearing, no cross-examination, no sworn testimony, no access given for John Doe even to see the investigator’s report much less comment on it, no provision of the evidence that supposedly supported the allegations of complainant and thus no fair and adequate ability to prepare a defense to those allegations, no presumption of innocence (there was a presumption the accusing female’s story was true, as she did not appear ever before the Dean and the Equity Committee), and no reasoned consideration of evidence as required by a burden of proof.[4]

The Seventh Circuit upheld the Complaint’s pleading of (i) the constitutional due process claim and (ii) the Title IX discrimination claim.[5]

  1. The Constitutional Due Process Claim.

Judge Barrett, after ruling that Purdue had deprived John Doe of a stigma-plus liberty interest, turned to “whether he [John Doe] has adequately claimed that Purdue used fundamentally unfair procedures in determining his guilt.”[6] She wrote in pertinent part what is well worth quoting:

John’s circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days. Yet Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension. ‘‘[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.’’ Goss [v. Lopez], 419 U.S. [565,] at 581, 95 S.Ct. 729. John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair. See id. at 580, 95 S.Ct. 729 (‘‘[F]airness can rarely be obtained by secret, one sided determination of facts decisive of rights’ (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring))).

John has adequately alleged that the process was deficient in other respects as well. To satisfy the Due Process Clause, ‘‘a hearing must be a real one, not a sham or pretense.’’ Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016) (citation omitted). At John’s meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. See id. at 630 (stating that a hearing would be a sham if ‘‘members of the school board came to the hearing having predetermined [the plaintiff’s] guilt’’). And in a case that boiled down to a ‘‘he said/she said,’’ it is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement.  It is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane’s credibility.

Sermersheim and the Advisory Committee’s failure to make any attempt to examine Jane’s credibility is all the more troubling because John identified specific impeachment evidence. He said that Jane was depressed, had attempted suicide, and was angry at him for reporting the attempt. His roommate—with whom Sermersheim and the Advisory Committee refused to speak—maintained that he was present at the time of the alleged assault and that Jane’s rendition of events was false. And John insisted that Jane’s behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had committed sexual violence against her. Sermersheim and the Advisory Committee may have concluded in the end that John’s impeachment evidence did not undercut Jane’s credibility. But their failure to even question Jane or John’s roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John.[7]

At this point in Judge Barrett’s opinion, a footnote stated that it was not necessary to address the lack of cross-examination because of all the other procedural deficiencies.[8]  Cross-examination, however, has been recognized as the greatest legal engine ever invented for discovery of the truth[9] and has been ruled to be required for basic due process in campus disciplinary cases.[10]

Judge Barrett’s opinion was on a motion to dismiss; however, her crystallization of the due process issues has been followed by pre-trial discovery that has fortified John Doe’s due process case as focused by Judge Barrett.  The depositions of Navy personnel and Navy document production showed that the Navy had relied exclusively upon the university suspension for disenrollment of John Doe,[11] and the depositions of Purdue people with the university documents that formed the basis of the allegations of the Complaint fully supported that Complaint and showed other failures of fair process. Among other things: John Doe was never provided the investigation report throughout the disciplinary case; there was no hearing, just an untranscribed half-hour meeting of John Doe alone with Dean Sermersheim and the Equity Committee; Jane Doe never appeared in person before Dean Sermersheim and the Equity Committee; there was involvement throughout the process of the Purdue sexual assault center known by the acronym “CARE”;  the investigators never met with John Doe concerning what John Doe says was a highly selective, misinterpretation of the texts between him and Jane Doe by the investigators.[12]

The failures of due process are important to recognize because the practical reason why due process matters is so that cases are not decided “on the basis of an erroneous or distorted conception of the law or the facts.”[13]  The damage done to John Doe’s career aspirations and emotional well-being was devastating and ought never to be inflicted without due process.  Male respondents in Title IX university sexual misconduct proceedings have their side of the story and in life, have their hopes and dreams and their feelings.  Due process, as provided by the current Title IX regulations applicable to all universities and colleges (private or public), allows male respondents to have their side of the story heard and not to have their lives upended based on Kafkaesque proceedings that really have no place in America.

  1. The Title IX Discrimination Claim.

Judge Barrett addressed John Doe’s Title IX claim by first examining what should be the test for Title IX discrimination, noting the “erroneous outcome” and “selective enforcement” doctrinal tests stated in Yusuf v. Vassar College[14] and also the “deliberate indifference” and “archaic assumptions” doctrinal tests added by the Sixth Circuit in Doe v. Miami.[15]  Judge Barrett, however, put all these doctrinal tests to the side, stating:

We see no need to superimpose doctrinal tests on the statute. All of these categories simply describe ways in which a plaintiff might show that sex was a motivating factor in a university’s decision to discipline a student. We prefer to ask the question more directly: do the alleged facts, if true, raise a plausible inference that the university discriminated against John ‘‘on the basis of sex’’?[16]

With that question in mind, Judge Barrett proceeded to analyze the facts as alleged in the Complaint.

Judge Barrett noted that John Doe cast his claim in “the backdrop” of the 2011 Dear Colleague Letter, recognizing Second Circuit and Sixth Circuit decisions that treated the 2011 Dear Colleague Letter as relevant in evaluating the plausibility of a Title IX claim.[17]  Judge Barrett quoted the Second Circuit stating ‘‘A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”[18] Judge Barrett recognized that the Sixth Circuit had ruled that the plaintiff’s allegation that “pressure from the government to combat vigorously sexual assault on college campuses and the severe potential punishment—loss of all federal funds—if it failed to comply, led Miami University to discriminate against men in its sexual-assault adjudication process,” combined with other facts, ‘‘support[ed] a reasonable inference of gender discrimination.”[19]  Judge Barrett also recognized that the Sixth Circuit had similarly ruled that the pressure of a Department of Education investigation and the resulting negative publicity ‘‘provides a backdrop, that, when combined with other circumstantial evidence of bias in Doe’s specific proceeding, gives rise to a plausible claim.”[20] Judge Barrett further again quoted the Second Circuit:  “There is nothing implausible or unreasonable about the Complaint’s suggested inference that the panel adopted a biased stance in favor of the accusing female and against the defending male varsity athlete in order to avoid further fanning the criticisms that Columbia turned a blind eye to such assaults.”[21]

After reviewing these pronouncements, Judge Barrett adopted the Sixth Circuit approach that the 2011 Dear Colleague Letter by itself did not plausibly establish Purdue had acted in part based on sex, but that the 2011 Dear Colleague Letter ‘‘provides a backdrop that, when combined with other circumstantial evidence of bias in [a] specific proceeding, gives rise to a plausible claim.”[22]

In John Doe’s case, such facts were found to have been alleged that gave rise to a plausible inference that Purdue discriminated against John Doe on the basis of sex.[23]  The “strongest” fact, according to Judge Barrett, was that “Sermersheim chose to credit Jane [Doe]’s account without hearing directly from her.”[24]  Judge Barrett explained:

The case against him [John Doe] boiled down to a ‘’he said/she said” — Purdue had to decide whether to believe John or Jane. Sermersheim’s explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane.[25]

Judge Barrett cited other facts as well: the Equity Committee panelists made up their minds before meeting with John Doe and appeared unfamiliar with the facts of the case while showing hostility toward John Doe; it was plausible that Dean Sermersheim and her Equity Committee advisors chose to believe Jane Doe because she is a woman and disbelieve because John Doe is a man; Purdue’s sexual assault center CARE put up on its Facebook page during the same month that John was disciplined an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are” — which could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals who commit sexual assault; and CARE Director Monica Bloom’s role in assisting Jane Doe’s case.[26]

The clarity of Judge Barrett’s analysis has resulted in Doe v. Purdue becoming the lodestar for interpreting Title IX in discrimination suits against universities by male respondents in university and college sexual misconduct disciplinary proceedings.  Four Circuits have cited Doe v. Purdue and adopted its approach when reinstating the Title IX federal court suits brought by the male plaintiffs: the Third Circuit in Doe v. University of Sciences,[27] the Sixth Circuit in Doe v. Oberlin,[28] the Eighth Circuit in Doe v. Univ. of Arkansas – Fayetteville,[29] and the Ninth Circuit in Schwake v. Arizona Bd. of Regents.[30]

  1. Recommendations As To Regulations.

The present question is what, if anything, is to be done about the current Title IX regulations?  The foregoing discussion of Doe v. Purdue has been provided to propose that the current regulations aren’t broken, and therefore don’t need to be fixed. Indeed, the current Title IX regulations were so well formulated precisely because of the many lamentable experiences with university sexual misconduct proceedings, as exemplified in Doe v. Purdue.

The current Title IX regulations state that the university or college disciplinary process shall treat complainants and respondents equitably, objectively evaluate the evidence, not have conflicts of interest or bias, presume respondents are not responsible, have prompt time frames, identify the burden of proof that is to be applied uniformly and have support services for both complainants and respondents.[31] These requirements reflect a very different disciplinary process than the one experienced by John Doe in Doe v. Purdue.  Purdue did not treat John Doe equitably, did not objectively evaluate the evidence, did have bias and an arguable conflict of interest in Dean Sermershweim serving as both decision-maker and Title IX Coordinator, did presume John Doe was responsible, did not reasonably apply the burden of proof and did not have support services for John Doe.

The current Title IX regulations require formal written notice of allegations that contains “sufficient details known at the time and with sufficient time to prepare a response before any initial interview” – “[s]ufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known.”[32] That written notice “must include a statement that the respondent is presumed not responsible for the alleged conduct” and must be amended if additional allegations are made later in the proceeding.[33]  Purdue did provide notice but did not state that John Doe was presumed not responsible for the alleged conduct.

The current Title IX regulations require that the university or college conduct investigations that:

  • “Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties”[34];
  • “Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence”[35];
  • “Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence”[36];
  • “Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney”[37];
  • “Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate”[38];
  • “Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient [university or college] does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source” and “[p]rior to completion of the investigative report, the recipient [university or college] must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report”[39]; and
  • “[c]reate an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing . . . send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.”[40]

These regulations would not have allowed Purdue to conduct the investigation the way the school did and would not have allowed Purdue not to disclose ever the investigation report to John Doe. Rather would have required Purdue investigators to share what the school considered its evidence with John Doe before the completion of investigation report, to meet with John Doe about the interpretation of the texts between John Doe and Jane Doe and to disclose the investigation report to John Doe 10 days prior to the hearing.

The current Title IX regulations require a “live hearing” at which cross-examination is to be conducted by the party’s advisor of all witnesses in real time, including questions challenging credibility, and the university or college is to create an audio or transcript recoding of the hearing.[41]  There was no such hearing in Doe v. Purdue, just an untranscribed half-hour meeting of John Doe alone with the Dean and the Equity Committee.

The current Title IX regulations require “[t]he decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility” and “[t]o reach this determination, the recipient [university or college] must apply the standard of evidence” and make a “written determination [that] must include”: identification of the allegations potentially constituting sexual harassment; a description of the procedural steps taken from the receipt of the formal complaint through the determination; “[f]indings of fact supporting the determination”; “[c]onclusions regarding the application of the recipient’s code of conduct to the facts”; “[a] statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant”; and a statement of the school’s appeal procedures and grounds for appeal.[42]  In Doe v. Purdue, Dean Sermersheim could not be the decision-maker because she was the Title IX Coordinator, and Dean Sermersheim’s decision would have been totally inadequate, as it consisted of a conclusory very short paragraph without findings of fact, without conclusions and without rationale.

In short, the current Title IX regulations would not allow what happened in Doe v. Purdue that was so lacking in due process and that was devastating to John Doe’s career aspirations and emotional well-being.


[1] 928 F.3d 652 (7th Cir. 2019); “Secretary DeVos Announces New Title IX Regulation,”; U.S. Department of Education Press Release, “Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students,” May 6, 2020; 34 C.F.R. 106. 45.

[2] “Secretary DeVos Announces New Title IX Regulation,” b3yfMNGuA.

[3] U.S. Department of Education Press Release, “U.S. Department of Education Launches New Title IX Resources for Students, Institutions as Historic New Rule Takes Effect” (August 14, 2010); 34 C.F.R. 106.45.

[4] Complaint, Doe v. Purdue, No. 2:17-cv-33-JPK (N.D. Ind.), ECF 1, pp. 2, 13-14; 928 F.3d at 656-658.

[5] 928 F.3d at 659-670.

[6] 928 F.3d at 663.

[7] 928 F.3d at 663-664.

[8] 928 F.3d at 664 n. 4.

[9] Lilly v. Virginia, 527 U.S. 116, 124 (1999); see also Maryland v. Craig, 497 U.S. 836, 846 (1990).

[10] Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018); Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–402 (6th Cir. 2017); Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641 (6th Cir. 2005); Doe v. Brandeis Univ., 177 F.Supp.3d 561, 605 (D. Mass. 2016); Donohue v. Baker, 976 F.Supp. 136 (N.D.N.Y. 1997).

[11] Memorandum of Law, Doe v. Purdue, No. 2:17-cv-33-JPK (N.D. Ind.), ECF 106.

[12] Memorandum of Law, Doe v. Purdue, No. 2:17-cv-33-JPK (N.D. Ind.), ECF 116, pp. 7-8.

[13] Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).

[14] 35 F.3d 709, 715 (2d Cir. 1994).

[15] 882 F.3d 579, 589 (6th Cir. 2018).

[16] 928 F.3d at 667-668.

[17] 928 F.3d at 668-669, discussing Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016), Doe v. Miami, 882 F.3d 579, 594 (6th Cir. 2018), and Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018).

[18] 928 F.3d at 668, quoting Doe v. Columbia, 831 F.3d 46, 58 n.11 (2d Cir. 2016).  Philip A. Byler was the winning appellate lawyer also in Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016).

[19] 928 F.3d at 668, quoting Doe v. Miami, 882 F.3d 579, 594 (6th Cir. 2018).

[20] 928 F.3d at 668-669, quoting Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018).

[21] 928 F.3d at 668, quoting Doe v. Columbia, 831 F.3d 46, 58 (2d Cir. 2016).

[22] 928 F.3d at 668-669, quoting Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018).

[23] 928 F.3d at 669-670.

[24] 928 F.3d at 669.

[25] 928 F.3d at 669.

[26] 928 F.3d at 669-670.

[27] 961 F.3d 203 (3d Cir. 2020).

[28] 963 F.3d 580 (6th Cir. 2020).

[29] 974 F.3d 858 (8th Cir. 2020).

[30] 967 F.3d 949 (9th Cir. 2020).

[31] 34 C.F.R. 106.45(b)(1).

[32] 34 C.F.R. 106.45(b)(2).

[33] 34 C.F.R. 106.45(b)(2).

[34] 34 C.F.R. 106.45(b)(5)(i).

[35] 34 C.F.R. 106.45(b)(5)(ii).

[36] 34 C.F.R. 106.45(b)(5)(iii).

[37] 34 C.F.R. 106.45(b)(5)(iv).

[38] 34 C.F.R. 106.45(b)(5)(v).

[39] 34 C.F.R. 106.45(b)(5)(vi).

[40] 34 C.F.R. 106.45(5)(vii).

[41] 34 C.F.R. 106.45(6).

[42] 34 C.F.R. 106.45(7).

Due Process Sexual Assault Sexual Harassment

SAVE Asks, ‘Why Are Groups Pushing to Incarcerate Even More Black Men?’


Rebecca Stewart: 513-479-3335


SAVE Asks, ‘Why Are Groups Pushing to Incarcerate Even More Black Men?’

WASHINGTON / May 17, 2021 – Despite long-standing disparities by the criminal legal system in its treatment of Black men, groups are currently pushing for changes that are likely to worsen such disparities. SAVE urges an about-face on consideration of these proposals.

According to the Centers for Disease Control, Black men are more likely than Black women to be victims of domestic violence, sexual violence, or stalking committed by a partner (1):

  • Black men: 1.47 million victims, annually (Table 5.6)
  • Black women: 1.38 million victims, annually (Table 5.3)

But studies reveal that ironically, Black men are more likely than Black women to be arrested for domestic violence (2). The “criminalization of social problems has led to mass incarceration of men, especially young men of color,” according to the Ms. Foundation for Women (3).

Inexplicably, current proposals for criminal justice change are likely to worsen the problems of wrongful arrests and convictions of Black men:

  1. Expanded Definitions of Crimes: The U.S. House of Representatives recently passed a bill, H.R. 1620, that would expand the definition of domestic violence to include “verbal, psychological, economic, or technological abuse.” (4) A Black man who is falsely accused of such broadly defined actions would find it difficult, if not impossible to defend against the claim.
  2. Affirmative Consent: Two years ago the American Bar Association House of Delegates debated a controversial proposal to re-define consent as “consent to engage in a specific act of sexual penetration, oral sex, or sexual contact.” (5) This definition would expose any Black man who gives unconsented good-night kiss to an accusation of sexual assault.
  3. ‘Victim-Centered’ Investigations: Controversial investigative methods known as “victim-centered,” “trauma-informed,” or “Start By Believing” eliminate impartiality and remove the presumption of innocence (6). For example, the Abby Honold Act, introduced in both the Senate (S. 119) and House of Representatives (H.R. 649), would promote such methods (7).
  4. Mens Rea: At the American Law Institute, activists are arguing for weakened mens rea standards, making it easier to obtain sex crime convictions where there are simple misunderstandings between two people, not an intent of one person to injure another (8). Debate on the mens rea topic will continue at the ALI annual meeting on Tuesday, May 18.

Due process for Black men is a concern on college campuses, as well (9).

Last week the Eugene/Springfield, Oregon chapter of the NAACP issued a statement in support of campus due process, announcing its “full support for the change in regulations to allow for substantive due process for all students accused of misconduct in our universities and college campuses” (10).

Nearly one year after George Floyd’s tragic death launched a national conversation on our criminal legal system, SAVE urges lawmakers, civil rights advocates, and others to ask, “Why are certain groups pushing for legal changes that will worsen the problem of mass incarceration of Black men?”


  3. Safety and Justice for All. New York, 2003, p. 17.
Campus Sexual Assault Sexual Harassment

Half-Truths, Myths, and Falsehoods in the Campus Sexual Assault Debate

Half-Truths, Myths, and Falsehoods in the Campus Sexual Assault Debate


May 15, 2021

History shows that every moral panic rests upon a series of claims that are misleading, partly true, or outright falsehoods. The campus rape hysteria that pervaded American society beginning in 2011 is no exception to this rule.

Following are four misrepresentations that campus activists have promoted on the problem of sexual assault:

  1. One-in-Five

The Campus Sexual Assault (CSA) Study found that one-in-five women experience “sexual assault” during their college careers.[1] But according to the Department of Justice’s National Crime Victimization Survey (NCVS), the rate of rape or sexual assault among female college-age students is 0.6/100 per year.[2] Assuming a four-year college duration, this translates into 2.4/100, which is nearly 10 times less than the one-in-five claim.

The disparity in these numbers can be explained by the different definitions used by the two surveys. In particular, the CSA study includes incidents of sexual contact that do not rise to the level of criminal behavior. Sexual assault is commonly understood to be a criminal offense. Describing the one-in-five number as “sexual assault” is misleading, at best.

Verdict: Misleading factoid.

  1. Unfounded Allegations

Psychologist David Lisak has claimed that “the prevalence of false allegations is between 2% and 10%.”[3] Campus activists repeat this statistic frequently.

But the actual number of unfounded sexual assault accusations is much higher. In the criminal setting, approximately one-third of such allegations are unfounded.[4] On campus, the number is even higher.[5] According to Brett Sokolow, head of the Association of Title IX Administrators, “Probably 40 or 50% of allegations of sexual assault are baseless. There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.”[6]

Verdict: Falsehood.

  1. Serial Rapists

David Lisak has also promoted the claim that 90% of campus rapes are committed by serial offenders who average six rapes each. Lisak’s “six rapes each” claim has been cited in numerous reports, and served as justification for the draconian sexual assault policies established on many college campuses.

But the data upon which this claim are founded came from studies conducted by other researchers. After reporter Linda LeFauve interviewed Lisak, she revealed, “I asked about those studies, he first said he was unable to remember their topics, then that they ‘may have been about child abuse history or relationships with parents.’ I asked whether they were about campus sexual assault; he conceded they were not.”[7]

Verdict: Falsehood.

  1. Male Victimization

According to the National Sexual Violence Resource Center, 24.8% of men experience some form of contact sexual violence in their lifetimes.[8] This figure comes from the CDC’s National Intimate Partner and Sexual Violence Survey, which is considered the most reliable national survey on this topic.[9] In the words of the CDC survey, most of these men were “made to penetrate” their female sexual partners. Thus, the number of men and women who are victimized by sexual violence each year is almost identical.[10]

But campus activists consistently portray the problem of sexual assault as a male-on-female problem. For example, the activist group It’s On Us highlights on its website four different statistics on female sexual victimization….and zero statistics on male victimization.[11]

Verdict: Half-truth, which recalls the old Yiddish proverb, “A half-truth is a whole lie.”[12]


A review of the four leading claims by campus activists identifies one misleading factoid, two falsehoods, and one half-truth.

Research shows that the campus policies promoted by the 2011 Dear Colleague Letter did not increase reporting by victims or reduce campus sexual assaults.[13] To succeed in the quest to curb campus sexual assault, the debate needs to shift so it is based on empirical fact, not ideological presuppositions.


[1] Krebs CP, Lindquist CH, Warner TD, Fisher BS, and Martin SL (2007). The Campus Sexual Assault (CSA) Study.

[2] Sofi Sinozich and Lynn Langton (2014), Rape and Sexual Assault Victimization Among College-Age Females, 1995-2013.

[3] David Lisak, Lori Gardiner, Sarah Nicksa, and Ashley Cote (2010). False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases. Violence Against Women. 16 (12): 1318–1334.

[4] SAVE (May 7, 2021), One-Third of Sexual Assault Allegations in Criminal Setting Are Unfounded.

[5] SAVE (May 11, 2021), 40-50% of Campus Sexual Assault Allegations Are Unfounded, Revealing Need for Strong Protections of the Innocent.

[6] Quoted in Richard Bernstein (December 16, 2020). Legal experts say Biden’s pushing ahead to the Obama past on campus rape could be a mistake. The Center Square.

[7] Linda Lefauve (July 28, 2015), Campus Rape Expert Can’t Answer Basic Questions About His Sources.

[8] National Sexual Violence Resource Center. Statistics. Accessed May 13, 2021.

[9] Smith, SG, Zhang, X, Basile, KC, Merrick, MT, Wang, J, Kresnow, M, & Chen, J (2018). National Intimate Partner and Sexual Violence Survey: 2015 Data Brief – Updated Release. Centers for Disease Control and Prevention.

[10] Lara Stemple and Ilan Meyer (June, 2014), The Sexual Victimization of Men in America: New Data Challenge Old Assumptions. American Journal of Public Health.

[11]  It’s On Us. About Sexual Violence. Accessed May 11, 2021.

[12] Forbes Quotes.

[13] SAVE, Failed Experiment in Campus Jurisprudence, 2011-2019.

Sexual Assault Title IX

Live Hearing with Cross-Examination at UC-Boulder Reveals Major Improvements Under New Title IX Regulation

Live Hearing with Cross-Examination at UC-Boulder Reveals Major Improvements Under New Title IX Regulation

Larry Mertes

Mertes Law, Boulder, Colorado

May 14, 2021

On April 12 and 13, 2021, a retired Denver District Judge (1) conducted via Zoom the University of Colorado-Boulder’s (“UCB”) first formal hearing concerning student sexual misconduct applying the new Title IX rules.

John Doe, a UCB sophomore, stood accused of violating UCB’s Sexual Misconduct, Intimate Partner Violence, and Stalking Policy (2) (“UCB policy”) by engaging in vaginal and oral intercourse with the complainant at a time when he knew or should have known that she was incapacitated due to alcohol consumption and unable to consent to sexual activity.

This case was unique in that the complainant was not associated with UCB, the alleged misconduct was not connected to any UCB activity or program, and the alleged sexual misconduct occurred outside of the State of Colorado. After the investigation commenced the complainant first requested that the matter be dropped and then declined to participate in the live hearing. UCB’s response was to assign the complainant an advisor, complete its investigation, and proceed to a live hearing.

Allegations brought under UCB policy are not held to the current Title IX requirements due to relaxed preemption requirements (3) — a circumstance which slipped under the radar of most legal observers and commentators when the new regulations were modified following public review largely at the urging of ten states which had pursued more aggressive state legislation governing student sexual misconduct.
At the time of this report, five weeks post-hearing, no finding on John Doe’s case has been published by UCB. Important hearing takeaways are nonetheless available for consideration as follows.

Much like what makes civil litigation manageable in state and federal courts, the Office of Institutional Equity and Compliance at UCB (“OIEC”) — which is charged with implementing both Title IX and UCB policy investigations — provided clear pre-hearing guidance and worked collaboratively with counsel for the complainant, respondent, and the assigned Judge to refine and, in certain instances, develop new procedures to create the circumstances for a hearing which embraced important aspects of constitutional Due Process. Critical steps in this process included:

1. OIEC’s creation of a Hearing Manual (4) which outlined both expectations and roles in the hearing process for all participants. With some specificity the Hearing Manual also provided guidelines for the involvement of OIEC equity officers/administrators and hearing facilitation, parties, the hearing officer or hearing panel, advisors, support persons, witnesses, evidence handling, and limitation on non-involved persons in the hearing process. In its recitation of the scope of the planned hearing, the Hearing Manual affirmed that the process was designed to not be a repeat of the underlying investigation.

2. A mandated pre-hearing conference allowed the advisors, Title IX administrators, and the Judge to review and discuss the Hearing Manual procedures, set schedules for witness and exhibit disclosures, and have on-the-record discussions regarding areas of dispute including limits to the hearing officer’s role, how the absence of a party would be handled, prohibitions on the use of non-disclosed evidence, organization of and handling of exhibits during the hearing, and affirmatively addressing Doe’s request to have a court reporter present in addition to the official Zoom recording in order to facilitate a timely appeal if needed.

OIEC did an excellent job of providing updated hearing notices following the pre-hearing conference which included an accurate recitation of matters discussed and determinations subsequently made by OIEC.

Title IX regulations provide only for cross-examination. While it takes a moment to imagine a cross-examination which does not follow a direct-examination, UCB’s hearing process went well; and as a trial lawyer, I found myself simply shifting into direct examination mode when I wanted the Judge to hear a witness’s answer without me leading the witness (5).

Problem areas with UCB’s hearing process included:

  1. OIEC declined my request to allow our Judge to review jurisdictional and procedural objections and instead limited him to making a simple determination of whether the matter involved a Title IX claim or was instead a UCB policy violation claim. In either instance, it was agreed that Title IX hearing rules were applicable to John Doe’s hearing.
  2. In a Title IX case, if a party or witness does not submit to cross-examination at the live hearing, the Hearing Officer or Panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility. In a UCB policy case, OIEC applies a different standard, and the Hearing Officer or Panel is not required to exclude or disregard any prior statement based on a party or witness who does not submit to cross-examination at the live hearing. They may instead decide how much weight to give the prior statements, weighed in light of all the evidence in the case, and the issues to be decided.

In my opinion, OIEC’s modification of cross-examination requirement for UCB policy matters conflicts with the processes mandated under the new Title IX regulations as set forth in Section 106.6(h). Our Judge was not permitted by OIEC to weigh in on this substantial issue when the complainant in Doe’s case declined to participate in the hearing that her complaint initiated, and our Judge was directed to apply the UCB policy standard.

OIEC limitations on presenting “new evidence” outside of the investigative record artificially limits what can be presented at a hearing. This can become an issue when a student without an advisor engages in an interview with investigators and when potential cross-examination information is developed after the investigation is concluded but before the hearing is conducted, or when a party opens the door to a line of cross-examination not covered in the investigation but which becomes germane to issues raised in the hearing.

OIEC prohibitions on providing our Judge with briefings, memos, or motions from the parties or their advisors required me, as the respondent’s advisor, to play a particularly active role in outlining the case at prehearing conferences. This was incumbent upon me because neither the complainant’s newly assigned advisor nor our Judge had a complete understanding of the case as a result of not being provided a complete investigative file and/or because they were unable to complete a thorough reading of the file prior to prehearing conferences.

My conclusion is that the University of Colorado-Boulder went to great lengths to ensure a thorough and transparent process that went leaps and bounds beyond what was in place prior to the implementation of the new Title IX regulations.


(1) Our assigned hearing officer/Judge heard the case under assignment from the JAMS mediation group in Denver, Colorado.
(4) University of Colorado Equity Offices Hearing Manual 2020-2021

Campus Sexual Assault Sexual Harassment Title IX

The Nomination of Catherine Lhamon: An Oxymoronic Injustice

The Nomination of Catherine Lhamon: An Oxymoronic Injustice

SAVE, a non-profit, non-partisan organization, is a long-standing national leader in the area of campus fairness and civil rights. SAVE supports the interests and rights of both complainants and the accused.

SAVE was surprised by recent news about the nomination of Catherine Lhamon to become the Assistant Secretary for Civil Rights at the Department of Education’s Office for Civil Rights. We believe this is a serious mistake. It would be an oxymoronic injustice for a person with Lhamon’s long-standing record of determined opposition to “civil rights” to be confirmed to head up a federal “Office for Civil Rights.”

As a result of Lhamon’s aggressive enforcement of the flawed 2011 Dear Colleague Letter and the wrongful campus determinations that followed, numerous appellate court decisions have been handed down upholding due process protections for the accused – see SAVE’s recent Special Report, “Appellate Court Decisions for Allegations of Campus Due Process Violations, 2013-2020.”

More recently, numerous statements in support of campus due process have been issued. The statements by lawmakers and leading newspapers have been issued from approximately equal numbers of liberal and conservative sources – see listing below.

SAVE urges senators to oppose the nomination of Catherine Lhamon to the Office for Civil Rights.




  1. Michael Bloomberg: Bring Better Justice to U.S. Universities
  2. Sen. Richard Burr and Rep. Virginia Foxx: Letter to Department of Education Miguel Cardona
  3. Virginia Lt. Gov. Justin Fairfax: Statement of April 7

Newspaper Editorial Boards:

  1. Detroit News: Keep Title IX sex assault rules constitutional
  2. Los Angeles Times: Betsy DeVos’s campus sex-assault rules need a tweak, not an overhaul
  3. Washington Post: Biden has a chance to restore balance to  the rules on campus sexual assault


  1. SAVE:
  2. Eugene/Springfield, Oregon Chapter of the NAACP
  3. National Association of Scholars:
  4. Independent Women’s Forum: IWF and Independent Women’s Law Center Urge Biden Administration To Maintain Due Process Protections
  5. FIRE: More than 100 members of Congress to new Education Secretary: Abandon Title IX rules.


  1. David Golub: How Will Title IX Policies Affect Autistic Students?
  2. Raul Jauregui: Removing or Weakening the Presumption of Innocence in Title IX Proceedings Would Institutionalize ‘Cancel Culture’
  3. Wendy McElroy: Due Process on Campus Keeps Justice on the Streets
  4. Andrew Miltenberg and Kristen Mohr: Princeton must consider due process in sexual misconduct policies
  5. Natanya DeWeese: Guilty Until Proven Innocent: The Devastating Impact of the Pre-2020 Title IX Regulations on College Students Accused of Title IX Violations.
  6. Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses
  7. Edward Bartlett and Linda Chavez: The Future of Title IX Implementation (podcast)
  8. Buddy Ullman: Biden’s Enigmatic Executive Order on Sex Discrimination
  9. Jennifer Braceras: Attempts To Roll Back Due Process On Campus Hurt Students (radio interview)
  10. James Baresel: Biden, Title IX, and the Dangers Behind “Vague Positives”
  11. KC Johnson: On Title IX, Dems Move to Restore Obama-Era Unfairness
  12. Andrew Sullivan: Emily Yoffe On Due Process and Campus Rape
  13. Just the News: Biden’s plans for campus sexual misconduct regulations leave lawyers puzzled
  14. Justin Dillon and Candice Jackson: Why Does Joe Biden Hate Due Process?
  15. Paul Falanga: Title IX: A Professor’s Premonition Becomes a Disastrous Reality
  16. Jacob Sullum: Biden Threatens to Revive Kangaroo Courts in College Sexual Assault Cases
  17. Cynthia Ward: New Title IX regulations restored fair process — why try to overturn them?
  18. James Baresel: Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems
  19. Alison Somin: Biden executive order will lead to due process deficits on campus
  20. Daily Wire: Schow On Fox: Everyone Loses When Due Process Is Rolled Back
  21. Teresa Manning: Biden Title IX bid to ‘believe all women’ will meet its match on campuses
  22. David Harsanyi: Biden Prepares to Strip College Students of Due-Process Rights
  23. Campus Reform: Biden signs executive order in move toward revoking rule aimed at preserving due process
  24. Jordan Davidson: Biden Wars Against Biological Sex And Due Process With Two New Executive Orders
  25. Washington Examiner: A conversation with Brooklyn College professor KC Johnson
Campus Due Process Sexual Assault Sexual Harassment Title IX

Eugene/Springfield, Oregon NAACP Endorses New Title IX Regulation

May 11, 2021

As Executive Director and representative of the Eugene/Springfield, Oregon office of the NAACP, I’d like to state our full support for the change in regulations to allow for substantive due process for all students accused of misconduct in our universities and college campuses.

After consideration by our legal redress committee and  our committee chair, attorney Brian Michaels, as well as the review of articles on the topic, including a statement by SAVE, we have decided that this effort deserves our support. The SAVE release explains:

“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, 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.“

And for added weight, this from former Supreme Court justice Ruth Bader Ginsberg:

“There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Eric Richardson

Executive Director

Eugene/Springfield, Oregon NAACP

DED Sexual Assault Directive Department of Education Sexual Assault Sexual Harassment Title IX

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness.


May 13, 2021

On April 4, 2011 the Department of Education issued its notorious Dear Colleague Letter on sexual violence. Within months, SAVE wrote the Department urging that the unlawful policy be withdrawn. Following intense public criticism and numerous lawsuits against universities, on September 22, 2017 the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence.

One of the most important milestones in the six-year quest for campus justice was a Statement signed by 28 faculty members at Harvard Law School (HLS). The faculty members wrote “to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.”

But how did this Statement come to pass? On September 10, 2014, faculty member Richard Parker circulated an internal memo that began with the words, “We are a law school.” The memo outlines six constitutional values that are threatened by draconian campus policies:

  1. Procedural Due Process
  2. Equal Protection / Gender Discrimination
  3. Confrontation
  4. Coerced Self-Incrimination
  5. Free Speech
  6. Academic Freedom / Free Association

A month later, the Harvard Statement was published. And the rest is history.

Professor Parker’s entire memo is reprinted with permission, below.


September 10, 2014

To:         The Faculty

From:    Richard Parker

We are a law school.  As an institution, we have a long and deep tradition of both integrity and embarrassment.  Our moments of collective integrity have come when we have thought and acted as a law school.

When our committee says that the Interim Sexual Harassment Policy and Procedures  “meet legal requirements,” we know it’s never so simple.  Where, in the committee’s report, is the grappling with ambiguity and argument that is the essence of doing law — and that we demand of our students?   Is there no tension among “legal requirements”?   Where is discussion of constitutional “requirements” or values?

When the dean says, “the discretionary ‘space’ for revisions is narrow,” we know enough, as law teachers, to be … respectfully skeptical.

Once again, we are indebted to Betsy and Janet and Phil for waking us up. For now, I won’t address the proposal of a disruption of our longstanding institutional processes – our small-c “constitutional” understanding of our responsibilities.  Nor will I address the departures of the “policy” from the Supreme Court’s reading of Title IX.  Instead, I’ll focus on big-C Constitutional values and requirements.  And I won’t discuss them in depth.  My aim is just to flag some issues and encourage you to engage, on your own as lawyers, with the legal rat king we face.

I’ll conclude with a few thoughts on the part we now ought to play as a law school — the only one at Harvard University.


[1] Procedural Due Process

Wikipedia entry on Kangaroo Court: “A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as ‘a mock court in which the principles of law and justice are disregarded or perverted’.”

The Supreme Court tends to determine the process that is “due” along a sliding scale.  It weighs administrative interests and the interests of one party against whatever is at stake for the other party along with our traditions of “law and justice.” Sometimes those traditions short circuit the weighing of interests [see Fuentes v. Shevin], but most often it is the interests of the “defendant”, so to speak, that focus the analysis. [see Goldberg v. Kelly]  In the context of a SH proceeding, those interests are huge – so huge as to amount to a constitutionally protected “liberty” interest.  [See Board of Regents v. Roth]

Please compare the procedures required in Goldberg – what were at stake were welfare benefits — with the proposed SH procedures:

The Court insisted on procedures with “ancient roots.”  It emphasized the right to “an effective opportunity to defend.”  That required, inter alia, notice of the “evidence” against one, especially vital when “credibility or veracity are at issue”; oral participation in a hearing before the decision-maker; cross-examination of witnesses [see below]; an “impartial decision-maker” – who must not have participated in making a prior determination in the case.

On every one of those counts the proposed procedures are either utterly ambiguous or fall short.

Of course, the SH “complainant” also has weighty interests at stake, and they may cut, to some extent, against certain traditional protections for the “respondent.”  I’m not saying the resolution of this issue is a slam dunk.  But if you think carefully about each point, I believe you’ll conclude that, on any fair balance, removed just a notch from the politics of the moment, the proposed procedures amount to a disappointing denial of due process of law

[2] Equal Protection/ Gender Discrimination

The SH policy and procedures are gender-neutral on their face.  But their probable effect and the proclaimed purpose behind them are not.  Hence, they discriminate by gender and must be subjected to “exacting” scrutiny under long-established Equal Protection norms.  [See Personnel Administrator v. Feeney]  It is no less well established that gender discrimination “against” men must be subjected to no less “exacting” scrutiny than gender-discrimination “against” women.  [See Craig v. Boren]

To assess the gender discrimination worked by the proposed procedures before us, compare them with [a] those followed by other institutions in comparable contexts and [b] those followed by HLS in comparable contexts [eg, plagiarism] and in similar contexts in the past.  And, most important, compare [c] the procedural opportunities provided “complainants” with those provided “respondents”.

Among the provisions to be evaluated in this light should be the lower standard of proof, the “complainant’s” opportunity to remain anonymous, the truncated role of the Ad Board and the faculty, the limited opportunity for appeal and the stunning finality of the Final Report.

As we all know, the gender bias of the proposed procedures is justified as necessary to make up for a contrary gender bias embedded in our culture and practices – a sort of affirmative action argument, though having to do with the distribution of punishments rather than benefits.

That similarity and that difference ought to invite your further scrutiny.

[3] Confrontation

In the context of terminating welfare benefits, the Goldberg Court said of the opportunity to confront witnesses, especially one’s accuser: “While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.”

Under the proposed SH procedures, the “respondent” is denied any such opportunity!  [Indeed, it’s possible that the “complainant” may remain anonymous!]`

Can it be that the Investigating Team, conducting individual

Interviews, is so reliable that we should dispense with this vital feature of adversary procedure?  Will they be so effectively “trained” as to guarantee their reliability?  And what does that mean?  I had thought a faculty full of lawyers was “trained” in a relevant respect.  Can we be sure that the special SH “training” of those to whom we’re being asked to give up most of our responsibility won’t be … ideologically biased?

Or is this extraordinary feature of the proposed procedures driven by an extraordinary claim: the weakness/victimization of “complainants”?  Most of them?  Do we really believe that of our female students?  Could it justify potential ruination of our male students’ lives?  Do we have no “space” to resist and revise that?

[4] Coerced Self-Incrimination

Under the proposed procedures, when the Investigative Team notifies the “respondent” of the allegations against him, he has a week to submit a written “response”.  Then, the Team will “request” separate “individual interviews” with him and the “complainant” and possibly with witnesses.  They will also “request” separate a “follow-up interviews” with both the principal parties. They will then make their findings of fact and law, giving the parties a week to respond to it in writing.  Then, they complete their Final Report.

Because many [or most] cases will be “she said/he said” disputes, he’ll know that he is in dire peril if he declines the “request” to respond.  If the Team has only the “she said”, and a refusal to offer any ‘he said”, they probably will — the proposed procedures include no equivalent of the Griffin safeguards — count the latter against him.  He will feel under terrific pressure — time pressure added to the prospect of punishment up to expulsion — to provide some “he said”… which may wind up dooming him, at least, to those very punishments.  Long ago, in a situation involving discharge from office, the Supreme Court held that this kind of pressure, outside the criminal process, amounts to “coercion”.  [See Garrity v. New Jersey]

This is, of course, the same kind coercion employed by Joe McCarthy and General Electric to force GE workers to speak in the 1950’s.

The proposed SH procedures do touch on the possibility of formal “incrimination” resulting from such “coercion”.  The Final Report and/or evidence gathered by the Team may very well find its way to a DA.  What the University’s proposed procedures say about this prospect is interesting.

Twice, the University says that [a] “when the allegations, if true, might constitute criminal conduct [b] the respondent “is hereby advised to seek legal counsel before making written or oral statements”.  The key words are “might” and “hereby.”  The latter makes it clear that the “trained’ Officers and Investigators will not offer him – he is as much our student as she is – any such advice.  [Why not?]  And that makes it clear that he — especially during the week that he has to respond after first receiving the allegation – will be at sea and quite probably unable to figure out the former and lack time to find counsel anyway.

There is one other relevant provision.  There, the University says that, if an allegation “includes behavior or actions that are under review by law-enforcement authorities,” the Team may go ahead and impose “interim measures” [eg, suspension] but will “assess and reassess the timing” of its investigation “so that it does not compromise the criminal investigation.”  Is this reassuring, from our lawyer’s point of view?  The key word may be “are.”  Isn’t the real problem that the Team’s interviews and Final Report may play into – and distort — a later criminal investigation?  Why is nothing said about that?

[5] Free Speech

The University’s definition of “sexual harassment” includes “verbal” and “graphic” conduct “of a sexual nature” that is “unwelcome” – which it defines, inter alia, as “undesirable or offensive”.   [It need not be “persistent or pervasive” creating a “hostile environment”.  That goes beyond the reach of Title VII.  Is there precedent for it? ]

Anyone who knows anything about First Amendment law knows that this text flies flagrantly in the face of established general free speech norms.

It must be that the University hopes to operate in a special “domain” where such norms may be overridden.  [See Post, Citizens Divided]   But the extent of the overriding cannot be unlimited.  It must, presumably, be tailored to good reasons for setting up the special “domain” in the first place.  And those who “manage” it should exercise wise “discretion” in deciding how far to go in suppressing speech.

How different, in relevant respect, is a college setting from a high school setting – and a graduate school from a college setting?  What sorts and degrees of harassment have been common [how common?] in each type of school? In the whole USA?  In each individual school?  To what degree, for instance, has “unwelcome” verbal conduct, absent a hostile environment, been a problem?

Did the University drafters care?  Our law school committee?

Our committee does offer a sort of proviso.  “The policies and procedures,” it says, “uphold traditions of … uncensored debate on matters of public concern.  They effect no compromise of freedom of thought, inquiry, or debate.  Rather, they seek to ensure an environment in which education [etc] … are not corrupted by sexual and gender based harassment.  Nothing in them shall be construed to abridge … principles of free speech’.

What will that be taken to mean?  Its contrast – particularly, the contrast of the fourth sentence — with the definition of [non-environmental] “verbal harassment” is stark, to put it politely.  Most probably, it will simply put off debate to each individual case.  Is that the best we can do? … Oh, I forgot that since the Team’s Final Report is Final, we, the faculty, will not be allowed to engage in such debate …

How different is all this from the old “speech codes” which bit the dust under “principles of free speech”?  [See also RAV v. St. Paul]

[6] Academic Freedom/Free Association

Several colleagues signed a brief arguing that the Solomon Amendment – pressuring us to allow military recruiters on our campus – violated principles of free association and academic freedom.  Their argument failed.  [It was, I believe, extremely weak since the Amendment’s impact on those values was too small.]  [See Rumsfeld v. FAIR]  We should look forward to hearing from those colleagues now.

Later, I’ll touch [below] on the government’s “conscription” of private schools of higher education to adopt and administer prescribed policies and procedures.  This intrusion is plainly far broader and far deeper than any effected by the Solomon Amendment.

What’s more: enforcement of OCR’s directives will involve official investigations of these schools – like the one now targeting HLS.  The investigations, in turn, will scoop up emails and memos by and to faculty members – like this one! – debating general matters, taking positions that may be unpopular, even “incorrect.”  Thus they will invade “the intellectual life of a university” and do “grave harm”.  [See Sweezy v. New Hampshire]

Again, our committee applies its wan proviso to “academic freedom.”  [See above]


So far, I’ve addressed constitutional “values” – which should carry great weight in a law faculty.  Now: Is HLS, as a private school, subject to constitutional “requirements” vindicating those “values”?

Throughout the country, male students at private universities – most recently, Brandeis — are filing lawsuits challenging SH policies and procedures on grounds, inter alia, of gender discrimination and denial of due process.  More and more and more are on the way – coming our way.

I’ve been asked: Where is the “state [ie, federal government] action”?   In my view, this is no problem.

Since the 1970’s, “state action” issues have tended to break into three parts.  [a] Who “initiated” the “action” in question?  Typically, it has been a private party – which sets up the issue of how to tie it to the state.  But in this case it is the federal government itself that initiated the SH policy and procedures!

[b] How “specifically” has governmental power been used to effectuate the challenged aspects of the “action” in question?  Has government participation been “focused” specifically on those aspects?  In our case, the government has indeed specifically prescribed many of the features of the SH policies and procedures [eg, the preponderance standard] that are being challenged.  To be sure, the University and HLS seem to want to add further features which are probably unconstitutional.  But they have simply been elaborating on federal instructions.  As quiet collaborators?

[c] … Or in fear of threatened federal penalties? This goes to the third issue: how much governmental power – intruding into the private institution – has been applied? In Harvard’s case, the threatened penalties are massive.  And the federal intrusion is astonishing – to borrow a term from the law of federalism, the government proposes to “commandeer” not just the internal policymaking process, but also the internal disciplinary process, of private colleges and universities.

[In April 2014, Justice Kennedy’s plurality opinion in Schuette interpreted past “state action” decisions even more broadly – so that governmental “encouragement” or “authorization”, rather than enforcement,” may suffice.]

Try to imagine a more blatant instance of “state action” than the one before us …

The upshot:  We will be sued.  We probably will lose.  [Our SH procedures and policies will go the way of the “speech codes” of yesteryear.]  We deserve to lose.  Much worse, we are actually inviting this constitutional condemnation!



Harvard Law School’s history is full of stories of resistance –resistance by faculty members to the “authorities” in the name of legal values, often values of civil liberty.  Some are about challenges to the dean.  Think of Frankfurter and Pound.  Or Byse and Griswold.  As often, the stories – the ones that last – are about challenges to the University governing boards and President.  Think of Frankfurter or Chaffee or Howe or Dershowitz.  “The Trial at the Harvard Club.”

My point doesn’t have to do with the details or even the truth of the stories.  Instead, it has to do with their staying power, their power to make many faculty members and alumni a bit proud to be associated with the School.  These are the stories we are likely to tell when recruiting new students – not the ones about our passivity, our helpful rule-following.  Not the ones where we act as obedient “employees” of the Central Administration rather than tenured “officers” of the University.  Not the ones where we abandon our tradition of institutional autonomy.  And not the ones where we show we don’t take seriously – because we don’t act on – the values we pretend to take seriously in our classes.

There is one story in particular that we might profit from now.  It has to do with a concerted effort by the federal government to reach inside colleges and universities in order to correct a pathology believed to fester there.  It was an effort that involved conscription of Harvard University officials, who then commandeered its processes and pressured the schools to fall in line.

It was, of course, in the early 1950’s.  The pathology was the supposed “communist infiltration of education.”  Instead of the Education Department, it was the FBI that was the point of the federal spear.  The officials conscripted included both President Pusey and McGeorge Bundy, dean of the college.  The appointments process was commandeered, going so far as to throw out lowly lecturers.  [See Sigmund Diamond, Compromised Campus]  The intrusion extended into the Law School – resulting, most notoriously, in the removal from the law review of a student who said he’d refuse to answer certain questions about his political activity.

The dean was Erwin Griswold.  His actual behavior in the circumstance is not entirely clear.  In fact, it appears that in the law review affair he played the good soldier.  But shortly thereafter he went to Worcester and gave the first of a series of 1954 speeches explaining and justifying the exercise of rights under the Fifth Amendment.  In 1955, he published them as The Fifth Amendment Today.  It made his national reputation.  Google him: he became a man of “courage,” “a champion of individual liberty.”  Upon his death, HLS issued a statement recalling him as “a foe of McCarthyism”.  [Print the legend.]  Imagine if he had done more!

My point, again, isn’t to equate the SH policy and procedures with McCarthyism.  It is, instead, to speak to our sense of self-respect, our integrity as a law school.

If you agree with some of what we critics have to say about the proposed SH policy and procedures, please be aware that we can resist.  We ought to.































Campus Sexual Assault Sexual Harassment

Colleges are Facing Skyrocketing Insurance Premiums, Partly Due to Flawed Sexual Assault Proceedings

Colleges are Facing Skyrocketing Insurance Premiums, Partly Due to Flawed Sexual Assault Proceedings

Minding the Campus

May 9, 2021

There is a growing line of cases in which colleges have been held liable for running defective campus sexual assault discipline proceedings. More than 500 such cases have been brought nationally. As often happens, the plaintiffs lost most of the early cases. In more recent years, however, the cases have noticeably trended against the college defendants….

According to a 2017 story, “[a] five-year study conducted by United Educators found that the average lawsuit filed against colleges by alleged sexual assault perpetrators costs $187,000.”  I expect this number has increased substantially since 2017 as more cases have survived early motions to dismiss, which is the point at which defense costs rise significantly.

A college president responded to one of my earlier emails with a link to a story that appeared last month in the Chronicle of Higher Education. I take no joy in being right in my prediction about skyrocketing insurance premiums. (For the record, I first made this prediction in late 2018.)

The good news is that colleges, to a large extent, can reduce their litigation exposure. I predicted several years ago that Educators United would start offering advice to colleges on how to reduce their litigation risk in much the same way workers compensation insurers have done for decades. I also predicted they would start to use differential pricing to reflect the differing risk profiles. If college A adopts risk mitigation strategies and college B doesn’t, then college A would receive a lower premium.

To take a not-unrealistic example: We can identify, based on a growing line of court cases, certain red flags that increase the risk of adverse outcomes if a college is sued over its sexual assault discipline procedures. These include the use of a single investigator model; inadequate notice of the allegations; not allowing the accused to see evidence, to be represented by counsel, or to call witnesses; not allowing cross examination of witnesses, etc. Considering the recent premium increases, I expect we will see insurance carriers be more proactive in encouraging colleges to reduce their risk profiles.

Colleges face an increasingly complex and unpredictable array of challenges—abuse, harassment, assault, police misconduct, accidents, health and environmental hazards, fiduciary wrongdoing, the pandemic—that are making it more difficult to calculate risk and insure against it.

That’s a big part of why annual insurance premiums have gone up by double digits in recent years. John McLaughlin, senior managing director of the higher-education practice at Gallagher, an insurance brokerage and risk-management and consulting firm, says those increases range between an average of 10 and 35 percent across an institution’s insurance portfolio.

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