Campus Department of Education Due Process Title IX

32 Judicial Decisions Have Upheld Cross-Examination in Title IX Cases 


32 Judicial Decisions Have Upheld Cross-Examination in Title IX Cases 


August 31, 2021

American jurisprudence has long recognized the truth of  John H. Wigmore’s assertion that cross examination is “the greatest legal engine ever invented for the discovery of truth.” For these reasons, the 2020 Amendments to the Title IX regulation state: “…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 a party personally.” Section 106.45(b)(6)(i)

Unfortunately, certain groups are incorrectly claiming that the recent Victim Rights Law Center v. Cardona decision casts doubt on the overall importance of cross-examination. For example, the TNG recently recommended:

“If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.” [emphasis added]

Below is a listing and key quotes from the 32 judicial decisions from 9 appellate courts and 23 trial courts that have affirmed the essentiality of cross examination. More information about these decisions is available HERE.

Appellate Court Decisions 

  1. Doe v. University of Sciences, 961 F.3d 203, 214 (3d Cir. 2020) (reversing the district court’s order dismissing Doe’s complaint alleging a Title IX violation and breach of contract and fairness): “In other private-university cases, Pennsylvania courts have similarly determined that fairness includes the chance to cross-examine witnesses[.]”
  2. Boermeester v. Carry, 263 Cal. Rptr. 3d 261, 279 (Cal. App. 2d Dist. 2020), as modified (June 4, 2020), reh’g denied (June 18, 2020), review granted and ordered not to be published, 472 P.3d 1062 (Cal. 2020) (finding that credibility was central to a determination of sexual misconduct): “In a case such as this one, where a student faces a severe sanction in a disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in-person hearing in which he may cross-examine critical witnesses to ensure the adjudicator has the ability to observe the witnesses’ demeanor and properly decide credibility. In reaching this conclusion, we agree with the prevailing case authority that cross-examination of witnesses may be conducted directly by the accused student or his representative, or indirectly by the adjudicator or by someone else.”
  3. Doe v. Westmont College, 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019) (affirming the trial court’s writ of mandate setting aside Westmont’s determination and sanctions against Doe because of fairness issues): “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly . . . [t]he Panel denied John [Doe] that right.”
  4. Matter of A.E. v. Hamilton Coll., 173 A.D.3d 1753 (2019) (Article 78 Proceeding – reversing the lower court’s order and directing respondents to adhere to the College’s published rules): 
    1. “Although the Policy states that both the complainant and the ‘individual whose conduct is alleged to have violated th[e] Policy’ are entitled to ‘be informed of campus judicial rules and procedures,’ the right to submit questions in writing to the accusers or witnesses is not explicitly mentioned anywhere in the Policy and was not mentioned in any communication to petitioner outlining the campus judicial rules and procedures.” Id. at 1755. 
    2. “Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right, we conclude that respondents’ failure to inform petitioner that he had such a right establishes that they did not substantially adhere to the College’s own published rules and guidelines requiring them to inform petitioner of all of the campus judicial rules and procedures.” Id
  5. Doe v. Baum, 903 F.3d 575, 583 (6th Cir. 2018) (reversing district court’s dismissal for failure to state a due process claim): “Universities have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment. And in sexual misconduct cases, allowing the accused to cross-examine the accuser may do just that.  But in circumstances like these, the answer is not to deny cross-examination altogether. Instead, the university could allow the accused student’s agent to conduct cross-examination on his behalf. After all, an individual aligned with the accused student can accomplish the benefits of cross-examination—its adversarial nature and the opportunity for follow-up—without subjecting the accuser to the emotional trauma of directly confronting her alleged attacker.” 
  6. Doe v. Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1071–72, 236 Cal. Rptr. 3d 655, 667 (2018) (finding that Doe’s case hinged on credibility and therefore his hearing should have included the opportunity to cross examine Jane): “CMC argues in the alternative that, even if under Regents John was entitled to question Jane indirectly, this was satisfied by CMC’s procedures ‘allowing [John] to submit questions for the Investigator to ask witnesses based on the PIR.’ Setting aside the issue that the investigator did not in fact ask any of John’s proposed questions to Jane, CMC’s argument ignores the Committee’s own need to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John. This was the very benefit to oral testimony underlying the holding of Cincinnati.”
  7. Doe v. Univ. of S. California, 29 Cal. App. 5th 1212, 1234, 241 Cal. Rptr. 3d 146, 164 (2018) (finding that Doe was denied a fair hearing): “The same considerations underlying the holdings in Claremont McKenna, Baum, and Cincinnati apply here. Where a student faces a potentially severe sanction from a student disciplinary decision and the university’s determination depends on witness credibility, the adjudicator must have the ability to observe the demeanor of those witnesses in deciding which witnesses are more credible. This will typically be the case in disciplinary proceedings involving sexual misconduct where there is no corroborating physical evidence to assist the adjudicator in resolving conflicting accounts.”
  8. Doe v. Regents of the University of California, 2d Civ. No. B283229, at *24 (Cal. Ct. App. 2d 2018) (reversing the trial court’s judgment denying Doe a writ of administrative mandate for fairness and procedural due process violations and remanding the case to the superior court with the direction to grant Doe’s writ of administrative mandate): “[T]he [Sexual/Interpersonal Violence Conduct] Committee inexplicably allowed Jane to decline to respond to John’s questions about the side effects of Viibryd on the ground that it was her ‘private medical information.’ This deprived John of his right to cross-examine Jane[.]”
  9. Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017) (citations omitted) (affirming district court’s order enjoining Doe’s suspension from University): 
    1. “Ultimately, the [University] must decide whether Doe is responsible for violating UC[incinnati]’s Code of Conduct: whether Roe’s allegations against him are true. And in reaching this decision [t]the value of cross-examination to the discovery of truth cannot be overemphasized. Allowing John Doe to confront and question Jane Roe through the [University sex misconduct hearing] panel would have undoubtedly aided the truth-seeking process and reduced the likelihood of an erroneous deprivation.” Id. at 404. 
    2. “[UC[incinnati] assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused. A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not. The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause. Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, cross-examination has always been considered a most effective way to ascertain truth.” Id. at 401

Trial Court Decisions 

  1. John Doe v. Michigan State University, et al., No. 1:18-CV-1430 (W.D. Mich. Sep. 1, 2020) (denying the university’s MTD because Doe plausibly claimed a constitutional due process violation):
    1. “Hence, consistent with how Plaintiff has framed the proposed class in this case (‘All MSU students and/or former students … subjected to a disciplinary sanction … without first being afforded a live hearing and opportunity for cross[- ]examination of witnesses’), Plaintiff’s procedural due process claim is specifically based on his claimed right to ‘a live hearing and cross-examination.’” Id. at *12-13.
    2. “In short, at this pleading stage, taking the facts as true and reading all inferences in Plaintiff’s favor, Plaintiff has plausibly demonstrated a violation of a clearly established right.” Id. at *15.
  2. Messeri v. DiStefano, 480 F. Supp. 3d 1157, 1165 (D. Colo. 2020) (holding a reasonable factfinder could find that University’s failure to provide Messeri with a neutral arbitrator violated his procedural due process): “As examined above in Part III.B.1, Plaintiff has a substantial interest in avoiding expulsion and continuing his education. The University’s interests in limiting procedural safeguards relating to student’s hearing rights are less evident. Although the University correctly points out that it has an interest in avoiding ‘convert[ing] its classrooms to courtrooms’ to referee cross-examination amongst students and their representatives, this interest truly pales in comparison to the risk of error which may result in the wrongful expulsion of a student.”
  3. Doe v. University of Michigan, 448 F. Supp. 3d 715, 728 (E.D. Mich. Mar. 23, 2020) (granting Doe’s motion for partial summary judgment and denying the university’s MTD on constitutional due process grounds): “From its inception to the University’s appeal in Baum, the 2018 Policy was in violation of Circuit precedent. Five months before publishing its 2018 Policy and likely during its drafting, the Sixth Circuit held that cross-examination was  ‘essential to due process’ only where the finder of fact must choose ‘between believing an accuser and an accused,’ and implored universities to provide a means for decision makers ‘to evaluate an alleged victim’s credibility.’ Cincinnati, 872 F.3d at 405-06. The Court of Appeals further emphasized that deciding the plaintiff’s fate without a hearing and cross-examination was a ‘disturbing…denial of due process.’ Cincinnati, 872 F.3d at 402. Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity.” 
  4. Averett v. Hardy, No. 3:19-CV-116-DJH-RSE, 2020 WL 1033543, at *7 (quoting Baum, 903 F.3d 575, 582) (denying MTD due process claim against university administrator): “Averett … alleges that his inability to access exculpatory evidence until the day of the hearing impaired his ability to effectively cross-examine witnesses. When sexual misconduct is alleged and the credibility of antagonistic witnesses plays a central role, ‘[c]ross-examination is essential…. it does more than uncover inconsistencies—it ‘takes aim at credibility like no other procedural device.’ U of L has a strong interest in handling allegations of sexual misconduct in a fair manner.”
  5. Doe v. University of Connecticut, No. 3:20CV92 (MPS), 2020 WL 406356, at *5 (D. Conn. Jan. 23, 2020) (granting Doe’s TRO against the university on constitutional due process grounds): “Here, however, the Plaintiff was denied even the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe’s witnesses on whose statements the hearing officers chose to rely. Given UCONN’s reliance on this testimony and given the importance of credibility evidence to this factual dispute, denying the Plaintiff the opportunity to respond fully to Jane Roe and her witnesses heightened the risk of erroneous deprivation.”
  6. L.M. v. S. Ill. Univ. at Edwardsville (SIUE), No. 18-cv-1668-NJR-GCS, 2019 U.S. Dist. LEXIS 192800, at *7-8 (S.D. Ill. Nov. 6, 2019) (denying MTD for failure to state due process claim): “The Complaint … does not clearly delineate what allegations relate to a substantive due process claim. L.M. appears to be alleging that the Procedures and Policies violate substantive due process because they did not allow counsel to conduct direct examination of L.M. or cross-examination of C.M., and because counsel could only submit written questions in advance … Defendants have not cited to authority demonstrating why this particular allegation fails to state a substantive due process claim. Thus, L.M.’s substantive due process claim will not be dismissed at this stage of the proceedings.” 
  7. Doe v. Cal. Inst. of Tech., 2019 Cal. Super. LEXIS 10956 (holding that the administrative procedure provided to Doe was unfair and requiring the sanctions against Doe be set aside): 
    1. We hold that where, as here, John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess 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 John or the Committee itself. That opportunity did not exist here.” Id. at *15. 
    2. “The credibility of the complainants, multiple adverse witnesses, and Petitioner was at issue. At least one of the complainants, ‘SURF,’ chose not to participate in the investigation. Nonetheless, the investigators credited her complaint over Petitioner’s response based on interviews with other witnesses.” Id. at *17.
  8. Norris v. Univ. of Colorado, Boulder, 362 F. Supp. 3d 1001, 1011 (D. Colo. 2019) (Denying MTD for failure to state a Title IX claim): “Plaintiff notes he does not simply disagree with the Investigators’ findings, but instead his Complaint sets forth a litany of grievances which he argues denied him of a fair and impartial process. In part, Plaintiff disputes the University’s actions of: … denying Plaintiff the right to cross-examine his accuser … precluding Plaintiff from questioning witnesses” 
  9. Doe v. University of Mississippi, 361 F.Supp.3d 597, 611 (2019) (holding that Doe had raised plausible claims of sex bias and due process violations): “Because neither Roe nor any other witnesses against Doe appeared at the hearing, he was not permitted to cross-examine – either directly or through written questions submitted to the hearing panel – the witnesses whose accounts of the evening led to his discipline.”
  10. Doe v. White, No. BS171704 (Cal. Sup. Ct. Feb. 7, 2019) (Order setting aside Doe’s expulsion): “John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess 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 John or the Committee itself. That opportunity did not exist here.” 
  11. Doe v. The Trustees of the State of California, No. BS167329, at *10 (Cal. Sup. Ct. Feb. 5, 2019) (granting Doe’s writ of mandate for lack of fairness during the adjudicative process): “Petitioner never had an opportunity to ‘cross–examine [Roe 2], directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.’”
  12. Doe v. University of Southern Mississippi, et al., 2:18-cv-00153-KS-MTP (S.D. Miss. Sep. 26, 2018) (granting Doe a preliminary injunction on due process grounds):
    1. “Thus, while the Fifth Circuit has not held that cross examination is required, it has certainly never held that it is strictly prohibited. This Court finds that this is a case where cross examination is warranted because such a procedural safeguard would have lessened the risk of an erroneous deprivation.” Id. at *8. 
    2. “[Doe] could not know whether the summary was correct because he never heard the testimony in the first place. Writing a rebuttal after the testimony is complete is not the same as cross examination, which provides the opportunity to assess the person’s demeanor when asked certain questions and flesh out inconsistencies in a search for the truth.” Id. at *9. 
  13. Doe v. Pennsylvania State University, 336 F. Supp. 3d 441, 450 (M.D. Pa. Aug. 21, 2018) (denying defendant’s motion to dismiss regarding Doe’s due process claim): “Mr. Doe’s main objection to this paper-only Investigative Model is that it prohibited him from telling his story directly to the panel, and from challenging Ms. Roe’s version of events before that panel . . . [i]n a case like this, however, where everyone agrees on virtually all salient facts except one—i.e., whether or not Ms. Roe consented to sexual activity with Mr. Doe—there is really only one consideration for the decision maker: credibility. After all, there were only two witnesses to the incident, with no other documentary evidence of the sexual encounter itself. As a result, in this Court’s view, the Investigative Model’s virtual embargo on the panel’s ability to assess that credibility raises constitutional concerns.” 
  14. Roe v. Adams-Gaston, No. 2:17-CV-945, 2018 WL 5306768 (S.D. Ohio Apr. 17, 2018) (granting a preliminary injunction):
    1. Roe did not lose her right to cross-examine the complainants by simply admitting that she engaged in sexual conduct with the complainants.” Id. at *9.
    2. “But the hearing officer made those credibility determinations without the benefit of observing Roe (or anyone else) cross-examine the complainants—the only individuals present, other than Roe, when the purported sexual misconduct occurred.” Id. at *10.
    3. “Given the central role cross-examination has played as a truth-seeking device in our justice system, and given that Defendants have not identified any authority supporting their position, the Court cannot conclude that a pre-hearing investigative process, such as OSU’s, is a constitutionally adequate substitute for cross-examination.” Id. at *11.
    4. “In the absence of an injunction, Roe would continue to be expelled and suffer significant reputational harm based on the outcome of hearings in which she was denied the opportunity to cross-examine adverse witnesses.” Id. at *14.
  15. Doe v. University of Oregon, No. 6:17-CV-01103-AA, 2018 WL 1474531, at *15 (D. Or. Mar. 26, 2018) (denying defendant’s MTD regarding Doe’s due process claim and 14th Amendment equal protection claim): “Plaintiff alleges significant and pervasive flaws in the procedures used to investigate and adjudicate Roe’s allegations, including that the University denied him a meaningful opportunity to cross-examine and confront witnesses . . . relied on an undisclosed expert whose report plaintiff never had the opportunity to refute[.]” 
  16. Gischel v. Univ. of Cincinnati, S.D. Ohio No. 1:17-CV-475, 2018 WL 9944998, at *8 (S.D. Ohio Jan. 23, 2018) (denying MTD for failure to state a Title IX claim): “Significantly, Gischel was denied the opportunity to cross-examine [Accuser] about her level of intoxication because the ARC panel refused to ask [Accuser] the questions Gischel had submitted on the topic.” 
  17. Doe v. Ohio State Univ., 311 F. Supp. 3d 881, 892 (S.D. Ohio 2018) (quotations omitted) (denying university MSJ): “In the context of student disciplinary hearings, cross-examination is essential to due process, … in a case that turns on a choice between believing an accuser and an accused. Here, John Doe couldn’t effectively cross-examine Jane Roe on a critical issue: her credibility, and specifically, her motive to lie. This particular situation may indeed demand the procedural protection of the university either correcting a false statement or providing the accused with the necessary information to impeach a critical witness.” 
  18. Doe v. Ainsley Carry et al., Case No. BS163736, at *14 (Cal. Sup. Ct. Dec. 20, 2017) (holding that USC did not provide a fair, neutral, and impartial investigation): “[Title IX investigator] Noonan never offered Petitioner an opportunity to submit questions to Roe. In fact, Noonan informed Petitioner that ‘this is not the discovery process’ and would not permit Petitioner to take notes during his interview, precluding Petitioner from drafting any questions to Roe at his meeting with Noonan.”
  19. Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017) (finding that the University’s adjudicative hearing was prejudicial towards Doe): “The EA [External Adjudicator] appears to have misunderstood the policy allowing Petitioner to suggest additional questions to be asked in response to the Title IX Coordinator’s determination. The EA did not analyze whether the questions were appropriate and should be posed to Roe. Further, Respondent appears to have told Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule. Petitioner was unable to ask the EA to pose questions to Roe at the hearing. It is entirely unclear whether the EA would have made the same credibility determinations had Roe been questioned. The court finds that cumulatively, these conditions were prejudicial to Petitioner and denied him a fair hearing.”
  20. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017) (denying defendant’s MTD regarding plaintiff’s Title IX erroneous outcome claim): “Here, Plaintiff has adequately alleged facts that plausibly support at least a minimal inference of gender bias on the part of HWS. The allegations which support that inference include the following . . . alleg[ing] that his disciplinary proceedings put him at a disadvantage as compared to Jane Roe. For example, Plaintiff points to the fact that, during the proceeding, he was not allowed . . . to cross-examine Jane Roe[.]”
  21. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017) (granting Nokes’ motion for a preliminary injunction against defendants on procedural due process grounds): “John Nokes was never able to test the roommate’s memory or credibility, including any improper motives for testifying as such.”
  22. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016), adhered to on denial of reconsideration, D.N.J. No. CV 16-471 (KM) (JBC), 2017 WL 1508177 (D.N.J. Apr. 25, 2017), and aff’d in part, remanded in part, 699 Fed. Appx. 129 (3d Cir. 2017) (denying MTD for failure to state a Title IX claim): “The Complaint [alleges] that ‘[a]s a purported female victim, the Accuser’s allegations against the male plaintiffs were accepted as true without any investigation being performed and without the development of any facts or exculpatory evidence.’ And the Complaint does allege that Collick and Williams were not given the opportunity to respond or explain themselves, did not receive proper notice of the specific charges, were not permitted to confront or cross-examine their accuser, were not given a list of witnesses against them, and more generally were not afforded a thorough and impartial investigation.” 
  23. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014) (denying the University’s MTD on First Amendment grounds seeking injunctive relief): “Neither Angela Gould nor Onna Gould was present at the hearing, and the only evidence presented by the university was the unsigned, two-page list of events which was allegedly lodged by Onna Gould.”
Campus Discrimination Sexual Assault Title IX

PR: Slow Learner? Grinnell College Continues Pattern of Title IX Sex Discrimination, Gets Schooled by Circuit Court Judge


Rebecca Stewart: 513-479-3335


Slow Learner? Grinnell College Continues Pattern of Title IX Sex Discrimination, Gets Schooled by Circuit Court Judge

WASHINGTON / August 26, 2021 – Circuit Court Judge Rebecca Goodgame Ebinger handed down a Title IX ruling against Grinnell College on Monday, denying the college’s motion for summary judgment on Moe’s Title IX and breach of contract claims. (1)  The recent decision echoes similar sex bias findings from a 2019 ruling by the same judge also involving Grinnell College.

In a 2015 case that did not involve Moe, a Grinnell female student accused another female student of non-consensual sexual contact, with the college ultimately finding the female respondent to be responsible. In the recent decision, the judge began by analyzing how Grinnell investigated the 2015 complaint, compared to the current Moe v. Grinnell case:

“[I]n the 2015 case opinion, the adjudicator did not address whether the initial sexual contact between the parties was consensual. [In the current case], the adjudicator considered whether the initial sexual contact between Moe and Complainant 1 was consensual. Also, unlike Moe’s case, the adjudicator did not make findings regarding the uncharged conduct of nonconsensual sexual contact in the 2015 case. Finally, in the 2015 case opinion, the adjudicator credited the female respondent’s testimony that the complainant ‘was an active participant in their sexual activities.’ The adjudicator did not credit similar testimony by Moe.” (Page 22)

On the basis of the different treatment of respondents in these two cases, Judge Goodgame Ebinger concluded:

“In light of differential treatment between Moe and the female respondent identified above, a jury could find the adjudicator’s assessment about Moe’s credibility was based on biased notions as to men’s sexual intent….The adjudicator relied in part on the inferences she drew about the intent behind Moe’s physical actions to assess his credibility.” (Pages 23-24)

Monday’s decision against Grinnell College has a similar fact pattern as a third case that was resolved in 2019, in which Judge Goodgame Ebinger had ruled,

“Doe claims the determination in Complainant #1’s case arbitrarily found Complainant #1’s side of the story more credible and made unwarranted assumptions about Complainant #1 being naïve and sexually inexperienced….The Court concludes Doe has presented sufficient evidence from which a reasonable jury could deduce the determinations of responsibility relied upon by Grinnell to dismiss Doe were based on a biased perspective regarding the behavior of women during sexual encounters.” (2)

Grinnell College has been stoutly criticized for retaining Marsha Ternus to act as its Title IX adjudicator. Scott Greenfield opined in a recent column (3):

“Why, one might reasonably wonder, would Grinnell College, the party school of Iowa, pick someone to be the Title IX sex adjudicator who they knew was flagrantly biased against male students? On the one hand, that’s apparently exactly what they wanted from their adjudicator, a person who would adeptly make sure that the guy would come out guilty. On the other hand, it was almost as if the college was handed someone so impervious to criticism that she was above reproach. So Grinnell College made a big bet by retaining Marsha Ternus, former chief judge of the Iowa Supreme Court, to serve as their Title IX adjudicator.”

SAVE urges college president Anne F. Harris to order a top-to-bottom review of its Title IX policies, procedures, and practices. Given its pattern of illegal sex bias, SAVE calls on Iowa lawmakers to make necessary reductions in its annual budgetary appropriations to Grinnell College.


  1. 4:20-cv-00058-RGE-SBJ (S.D. Iowa Aug. 23, 2021.
  2. 473 F. Supp. 3d 909 (S.D. Iowa July 9, 2019) Page 927.
Campus Sexual Assault Sexual Harassment Title IX

PR: TNG Commentary Illogically Dismisses Cross-Examination, Placing Universities at Liability Risk


Rebecca Stewart: 513-479-3335


TNG Commentary Illogically Dismisses Cross-Examination, Placing Universities at Liability Risk

WASHINGTON / August 24, 2021 – A recent commentary by the TNG Consulting group over-reaches in its analysis of the recent Victim Rights Law Center v. Cardona decision, dismisses the key role of cross-examination, and invites a new wave of litigation against schools that have faced a tide of Title IX lawsuits in recent years.

In the original lawsuit, the Victim Rights Law Center (VRLC) challenged the Title IX regulation’s various cross-examination provisions (1).  The provisions, found at 106.45(b)(6)(i), state in part, “Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice…”

In his July 28 opinion (2), District Court Judge William Young approvingly noted that the Department of Education:

  • “detailed its reason for adopting the live hearing procedures, including the cross-examination requirement” (Page 16)
  • “explained its balance between cross-examination as a ‘necessary part of a fair, truth-seeking grievance process’ with safeguards to minimize the potential for ‘traumatic effects on the complainants’” (Page 16); and
  • “stressed the importance of cross-examination to determine the credibility of evidence.” (Page 17)

Judge Young was concerned, however, by this sentence:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”

In his decision, Judge Young vacated the above-quoted sentence, and affirmed the remainder of the cross-examination provisions, concluding that “The Advocates’ argument contesting 106.45(b)(6)(i) also fails.” (Page 54)

Hence, the decision did not invalidate the general cross-examination mandates in the 2020 regulations. Rather, it spoke to the narrow issue of how universities can handle pre-hearing statements by individuals that do not subject themselves to cross-examination.

Unfortunately, the August 16 TNG commentary omits key parts of Judge Young’s analysis. Instead, TNG recommends:

“If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.” (3) [emphasis added]

Relying on the same reasoning, a recent article from the National Women’s Law Center advises, “Effectively, what this means is that parties and witnesses in postsecondary schools should now no longer need to answer cross-examination questions from the opposing party’s advisor in order for the school to consider their other statements in its investigation.” (4) [emphasis added]

NWLC’s Shiwali Patel likewise tweeted on August 23, “THIS IS BIG. Effectively, this means that complainants shouldn’t have to participate in direct, live, cross-examination by the respondent’s advisor – at least under Title IX.” (5)

To date, nine appellate court decisions and 22 trial courts have upheld the role of cross-examination (6). In Doe v. Westmont College, the appellate judge ruled, “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly.” (7)

The TNG commentary incorrectly suggests that the VRLC decision contemplates universities allowing parties in Title IX disciplinary proceedings to “refuse to answer all cross-examination questions” posed by opposing parties. As a result, universities may find themselves subject to lawsuits if they follow the TNG advice.


  7. 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019)
Affirmative Consent Campus Due Process Sexual Assault Sexual Harassment Title IX

PR: ALI Drives Another Spike into the ‘Affirmative Consent’ Coffin


Rebecca Stewart: 513-479-3335


ALI Drives Another Spike into the ‘Affirmative Consent’ Coffin

WASHINGTON / August 18, 2021 – The American Law Institute (ALI) has conclusively rejected an “affirmative consent” provision that would have fundamentally reshaped the sexual practices of millions of Americans. At its recent annual meeting, the ALI membership ended a decade-long, sometimes contentious debate by approving a “willingness” standard over an “affirmative consent” concept (1).

Beginning in 2012, some ALI members began pushing to revise the sex crimes provisions of its Model Penal Code. The proposed changes would have endorsed a so-called “affirmative consent” standard, which was defined as, “a person’s positive agreement, communicated by either words or actions, to engage in a specific act of sexual penetration or sexual contact.”

At its June meeting, the ALI membership confirmed its rejection of the “affirmative consent” standard. The body gave final approval to the definition of “consent,” which means “a person’s willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact.  Consent may be express or it may be inferred from behavior— both action and inaction—in the context of all the circumstances.”

The ALI dryly summarized a decade of heated debate with a one-sentence statement: “Approval of this draft marks the completion of the project, subject to the Council’s approval of the amendments approved at this Annual Meeting.” (2) A timeline of the ALI debate, including links to various draft documents, is available (3).

In 2019 the American Bar Association debated a resolution to endorse the affirmative consent standard (4). The Resolution was defeated after it was opposed by a broad coalition of groups, including the National Association of Criminal Defense Lawyers (5).

California, Connecticut, and New York have enacted laws that require schools to find against a student accused of sexual misconduct unless he or she can prove the accuser gave “affirmative consent.” The New York affirmative consent requirement was a key component of the 2015 “Enough is Enough” law that was championed by Gov. Andrew Cuomo (6).

In practice, these statutes presume guilt and place the burden of proof on the accused. In a decision overturning the University of Tennessee at Chattanooga’s decision to expel a student for sexual misconduct using the affirmative consent rule, Judge Carol McCoy ruled (7):

“[The accused] must come forward with proof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to an activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

Affirmative consent has been ridiculed as a mechanistic “Mother-May-I” approach that potentially criminalizes every good-night kiss and passionate hug (8).


Campus Due Process Legal Sexual Assault Title IX

Title IX Hall of Shame: Most Egregious Campus Lawsuits, By State

Title IX Hall of Shame: Most Egregious Campus Lawsuits, By State


August 13, 2021

SAVE has compiled a listing and brief summary of the most egregious Title IX lawsuits by state, as of the end of 2020. SAVE encourages you to share the relevant lawsuit(s) with your state lawmakers, and urge them to enact legislation that affirms campus due process.

For more information, see the Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations.

Arkansas (Doe v University of Arkansas):

    • The Eighth Circuit ruled, “We conclude that the complaint stated a claim under Title IX of the Education Amendments of 1972 that is plausible on its face, but that the other claims were properly dismissed.”

Arizona (Schwake v. Arizona Board of Regents):

    • The Ninth Circuit ruled, “we conclude that Schwake plausibly alleged that the University discriminated against him on the basis of sex. We, therefore, reverse the district court’s dismissal of the Title IX claim.”


  • Doe v Allee [USC]:
    • USC used a single investigator model system, and the college appeals board only had the power to overrule the decision if the investigator’s decisions were not consistent with facts presented in the investigative report. Since the investigator decided what facts were included in the report, she could never be overruled.
  • Boermeester v. Ainsley Carry:
    • The California Appeals Court ruled,  “We conclude USC’s disciplinary procedures at the time were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. We thus reverse and remand with directions to the superior court to grant the petition for writ of administrative mandate.”

Colorado (Neal v Colorado State University – Pueblo):

    • A third party saw a hickey on a female student’s neck and reported the student’s boyfriend as a rapist. Even though the supposed victim of the rape swore to the university that the sex was consensual, the university expelled the student after giving him less than 24 hours’ notice to the hearing and refusing to give him a copy of the investigative report.

Connecticut (Doe v Quinnipiac):

    • The university opened a sexual assault complaint “on behalf of” a previous girlfriend of a student, even though she had not filed a complaint herself. The university subjected the “accused” student to a 7-hour hearing with no witnesses, and subsequently destroyed the evidence of the hearing and the prior investigation.

District of Columbia (Doe v George Washington II):

    • The U.S. District Court ruled in favor of the accused student and remanded the case for a second hearing, instructing the university to consider the toxicology reports and phone records that showed the accusation to be false. The school did not consider any of the new evidence and found him responsible again, so the student had to sue a second time.

Florida (Jia v University of Miami):

    • The university instructed the accused student that he could not file a counter complaint against the accuser, even though they were both drunk, because he needed to be “compassionate.” The accuser later worked with a professor to accuse plaintiff publicly of assault; the university did nothing to stop this harassment.

Georgia (Doe v Board of Regents of Georgia [GA tech]):

    • The university used a single investigator model, did not interview the witnesses of the accused, withheld the identities of the accuser’s witnesses until the day the expulsion decision was made, and provided no opportunity for cross examination.

Illinois (Doe v University of Chicago):

    • The university found the accused student to be not responsible. But the accuser proceeded to distribute pamphlets falsely stating that the university had “found him guilty.” The university instructed the accused student that he could not publicly contest the pamphlet allegations, supposedly in order to protect the accuser’s confidentiality.

Indiana (Doe v Purdue University):

    • The university withheld the investigative report which included a made-up confession by the accused student. Additionally, two panel members admitted to not reading the materials presented to them prior to the hearing, and the accused student was not allowed to present witnesses.

Iowa (Doe v Grinnell):

    • The university contracted with an outside adjudicator who was the former Iowa Chief Justice, and required that she use an affirmative consent standard that required the student to prove consent rather than the university to prove lack of consent. The university consolidated two claims by different accusers of two separate incidents.

Kentucky (Elmore v Bellarmine):

    • Elmore reported a professor’s sexual harassment of himself. The university retaliated against Elmore, turning the evidence against him and denying him counsel at the hearing.

Louisiana (I.F. v Tulane):

    • A student was criminally charged and then acquitted. At the subsequent university hearing, the hearing panel relied on allegations of a phone call made by the accuser to a friend shortly after the alleged sexual assault. During the criminal defense, the student had proven the phone call never occurred. But the university continued to rely on the non-existent phone call as inculpatory evidence.

Maryland (Doe et al v Salisbury et al):

    • Two accused students were denied the opportunity to ask critical questions of witnesses or to see witnesses testify.


    • Doe v Brandeis:
      • The school did not allow the student any right to notice of charges, the right to counsel, the right to cross examination, the right to review investigative report, or the right to appeal. Additionally, the University refused to interview Doe’s witnesses.
    • Doe v Amherst:
      • A female student performed non-consensual oral sex on a male student while he was passed out. Inexplicably, the female student later accused the male student of sexual assault. The university found him responsible, because even though he was blacked out at the time, “being impaired by alcohol is never an excuse,” the university argued. The male student later acquired text messages from the female accuser’s friends that proved the accuser had lied, but the university refused to reopen the case.

Michigan (Doe v Baum):

      • In this double-jeopardy case, the accused student prevailed in the initial hearing, but on the accuser’s appeal, was found responsible. The accused student was denied the right to cross examination.

Mississippi (Doe v University of Mississippi):

      • The university excluded Doe’s exculpatory statements and evidence. The university also counseled Doe’s new girlfriend to not support him emotionally, or be subject to retaliation charges at the school.

Montana (Powell v Montana State):

      • A student held a private conversation with a professor in which the student stated he did not agree with the gender identity movement. The professor reported the conversation to school officials and a transgender student in her class, alleging the student represented a danger to transgender students. The university suspended the student.

New Jersey (Collick et al v William Patterson University):

      • Collick and other students were charged criminally and the university summarily expelled them, and issued a public statement praising the bravery of the “victim.”

New Mexico (Lee v University of New Mexico):

      • The accused student was not afforded the right to cross examination, or to present evidence in his defense. The university prevented him from reviewing the evidence that did exist.

New York (Hall v Hoftstra):

      • When the accused student requested to review the investigative report, he was informed that he could review the report only under supervision, could not take notes, and could not speak with his attorney. The complainant admitted to hitting the accused in the groin, but administrators stated they “did not believe complainant was aggressive towards [the accused student].”

North Carolina (Gulyas v Appalachian State University):

      • University officials admitted to omitting key facts from the investigative report, and to not investigating an incident where the complainant physically assaulted the male student.


    • Doe v University of Cincinnati:
      • The accused student was subjected to a “respondent only” hearing where the board members asked no questions of substance at all. The accused was asked if he had any questions for the accuser, even though she was not present.
    • Doe v. Oberlin College:
      • The Sixth Circuit ruled, “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….John Doe argues that his complaint in this case adequately stated a claim that Oberlin College did precisely that when it determined his responsibility on a sexual-assault allegation. We agree, and reverse the district court’s decision to the contrary.”

Oklahoma (Ritter v Oklahoma City University):

      • The judge ruled that a student can allege discriminatory intent under the Twombly Iqbal standard. This standard makes it easier to sue the schools for Title IX violations.

Oregon (Doe v University of Oregon):

      • The university used a trauma-informed, single investigator model. The accuser changed her story multiple times, and the investigator concluded these inconsistencies made the allegations more credible.


  • Doe v Penn State et al, August 2018:
      • The hearing panel convened a hearing in which neither the complainant nor the respondent were allowed to attend. The panel had been trained to believe that “only 2% of rape accusations are false.”
  • Doe v. University of the Sciences:
    • The Third Circuit ruled, “Doe filed a lawsuit in the District Court alleging that USciences was improperly motivated by sex when it investigated and enforced the Policy against him. Doe also asserted that USciences breached its contract with him by failing to provide him the fairness promised to students under the Policy. The District Court dismissed Doe’s complaint. Doe’s complaint contains plausible allegations supporting both claims. So we will reverse the District Court’s order dismissing Doe’s complaint.”

Rhode Island (Doe v Brown, 2016):

      • The accused student was prohibited from leaving his dormitory room until interviewed by administrators as part of their investigation, then he was banned from the campus indefinitely in the interim. On cross examination, his faculty advisor did not use the student’s listing of the accuser’s inconsistent statements, and the student was later expelled.

South Carolina (Doe v Coastal Carolina University):

      • Local prosecutors declined to prosecute and the student prevailed in a university hearing. The accuser then submitted a late appeal, and the university accepted it anyway. The university held a second hearing, this time without witnesses, and found him responsible.

South Dakota (Tsuruta v Augustana University):

      • The accuser had a documented history of making false accusations. The accused had a physical disability that physically prevented him from committing rape. The university failed to interview witnesses who could provide information to confirm the disability, and found him responsible.


      • Doe v Rhodes:
        • School officials instructed the board to regard the evidence in the investigative report as “dispositive” that the accuser had been raped. The university only called female witnesses, and the accuser did not attend the hearing.
      • Mock v University of Tennessee:
        • After two students had a sexual encounter, the female student accused him of violating the college’s affirmative consent standard. During the hearing, the accused student was required to prove that he had met the affirmative consent standard, rather than the accuser having to prove a lack of consent. The male student was found responsible, so he filed an administrative appeal (TN state law procedure). The Administrative Judge overturned the university ruling, stating the affirmative consent standard is “flawed and untenable.”
  • Texas (Oliver v University of Texas Southwestern Medical School):
        • The accuser had a severe substance abuse problem. She stole her boyfriend’s prescription controlled medication and was arrested on drug possession charges. She tried to convince boyfriend to sign a false affidavit, and when that was unsuccessful, she retaliated by fabricating an audio recording of him assaulting her. She complained to the university, and the university initially dropped charges but summarily expelled Oliver when it discovered he had been arrested on charges relating to the audio recording, because they believed that he had assaulted her.

Vermont (Doe v Middlebury):

        • During a study abroad semester, the accused had been accused and exonerated of sexual assault. The U.S. school then decided to do its own investigation, in violation of contract with the foreign school. The home school used a single investigator model, had no hearing, and found the student responsible.

Virginia (Doe v Washington and Lee):

        • Following a sexual encounter, a female student experienced regret, but did not believe she had been raped. She then spent a summer working at a women’s clinic where she became convinced that she had been raped. The school refused to show the accused student the complaint and did not allow him to use a lawyer.
Campus Department of Education Sexual Assault Sexual Harassment Title IX

PR: ‘The Wolf Really Comes as a Wolf:’ SAVE Calls on White House to Withdraw Nomination of Catherine Lhamon


Rebecca Stewart: 513-479-3335


‘The Wolf Really Comes as a Wolf:’ SAVE Calls on White House to Withdraw Nomination of Catherine Lhamon

WASHINGTON / August 9, 2021 – On August 3, the Senate HELP Committee failed to approve the nomination of Catherine Lhamon to lead the Department of Education’s Office for Civil Rights (1). In response, SAVE is calling on the White House to withdraw the ill-conceived nomination.

No other nominee for a federal civil rights position, in recent memory, has:

  1. Refused to affirm her unqualified support for due process. During the July 13 hearing, Lhamon repeatedly side-stepped direct questions whether she believes in basic due process procedures. She also admitted that she does not endorse the presumption of innocence (2).
  2. In her previous work at the Department of Education, neutered the constitutionally rooted due process rights of so many persons….and later made the preposterous claim that she had been “aggressive in protecting accused students’ rights.” (3)
  3. Addressed senators in an arrogant and condescending manner. During a 2014 hearing, Senator Lamar Alexander asked Lhamon who had given her the authority to rewrite the Title IX law through guidance documents. She haughtily replied, “You did, when I was confirmed.” (4)
  4. Faced extensive bipartisan editorial opposition. As of July 31, liberal and conservative media outlets, organizations, and individual commentators had issued 35 statements opposing her nomination (5).

Ironically, Lhamon’s strongest critics have come from a left-of-center perspective. One liberal commentator tartly observed, “Lhamon has done more to obliterate the constitutional and civil rights of accused students and faculty in higher education over the last decade than perhaps any other American.” (6) Another editorialist summarized his critique with this characterization of Lhamon’s campus due process policies: “in this case the wolf really comes as a wolf.” (7)

Catherine Lhamon’s concept of civil rights does not represent a liberal or progressive viewpoint. Rather, her political philosophy is more accurately described as “extremist.”

Instead of suffering an embarrassing vote on the Senate floor, SAVE calls on the White House to promptly withdraw the nomination of Catherine Lhamon.


Campus Sexual Assault Sexual Harassment Title IX

PR: Rep. Ann Kuster Misrepresents Campus Statistics, Downplays Crisis of Sexual Victimization of Men


Rebecca Stewart: 513-479-3335


Rep. Ann Kuster Misrepresents Campus Statistics, Downplays Crisis of Sexual Victimization of Men

WASHINGTON / August 6, 2021 – Rep. Annie Kuster recently introduced the campus Hold Accountable and Lend Transparency (HALT) Act, which seeks to strengthen the enforcement of campus sexual assault laws. Unfortunately, Kuster’s press release misrepresents and understates the problem of campus sexual assault of men.

The release states, “The grim reality is that a quarter of undergraduate women and 7 percent of undergraduate men are destined to become victims of sexual violence on campus.” (1) These numbers come from a survey conducted by the Association of American Universities (2).

In the vast majority of cases, male sexual victimization involves a man who is “made to sexually penetrate” by his female partner, which is the term the Centers for Disease Control now uses in its National Intimate Partner and Sexual Violence Survey (NISVS). Using the “made to penetrate” wording, the NISVS found that the numbers of male and female victims are nearly identical. Each year 1.267 million men are made to sexually penetrate, and 1.270 million women experience rape, according to the NISVS (3).

But the AAU survey did not include any questions about being made to sexually penetrate, resulting in a significant underestimate of the extent of the problem.

Flawed definitions have long had the effect of minimizing the problem of sexual victimization of both women and men. Before 2012, the FBI defined rape as the “carnal knowledge of a female forcibly and against her will.” The word “forcibly” served to minimize female victimization, and the word “female” completely excluded the victimization of men.

These problems underscore a broader neglect of male victims of sexual violence.

A recent analysis reveals how college administrators frequently ignore complaints by male victims. From 2016 to 2018 for example, the University of Denver investigated 14 out of 105 sexual assault complaints brought by women. In contrast, the University investigated zero out of 21 complaints brought by male students.

Analyst Erin Pine concludes, “With similar victimization numbers between men and women, the failure of colleges to investigate male-driven accusations is proof that their hypervigilance in adjudicating sexual misconduct claims is not inspired by notions of even-handed justice. Universities are sending a message to male students that their boundaries will not be respected, and their claims will not be heard.” (4)

The HALT Act represents a commendable effort to address the persistent problem of campus sexual assault. SAVE calls on Rep. Kuster to correct the flawed statistics on her website, and issue a statement to help bring an end to the apathy and neglect that surrounds the crisis of male sexual victimization.


Campus Sexual Assault Sexual Harassment Title IX Trauma Informed

PR: OCR Guidance Ignores Growing Number of Judicial Decisions, Inviting New Wave of Title IX Lawsuits


Rebecca Stewart: 513-479-3335


OCR Guidance Ignores Growing Number of Judicial Decisions, Inviting New Wave of Title IX Lawsuits

WASHINGTON / August 4, 2021 – The Office for Civil Rights recently issued a new guidance that ignores the existence of over 200 judicial decisions that govern the conduct of Title IX proceedings. Titled “Questions and Answers on the Title IX Regulations on Sexual Harassment,” the document discusses a number of flexibilities built into the 2020 amendments to the Title IX regulation (1).

The OCR document makes no mention of relevant case law, even though these judicial decisions carry greater legal weight than non-binding guidance issued by an Executive Branch agency. Schools that unquestioningly follow the OCR guidance will place themselves at risk of more Title IX lawsuits.

Following are five examples how the OCR guidance places institutions at greater litigation risk:

  1. Equitable Grievance Procedures

The original Title IX implementing regulation mandates the “equitable” resolution of complaints. See 34 CFR 106.8(b). Decisions by two appellate courts (2) and 12 trial courts (3) expound on the importance and meaning of fair adjudications.

For example, in I.F. v. Administrators of Tulane Educational Fund, Judge Max Tobias wrote:

“I.F. was entitled to know the standards by which his evidence would be received, his burden of proof, and what the hearing panel would be considering when determining whether he was guilty of sexual misconduct. Based on the record before us, which does not contain the evidence that Tulane would have presented if the trial court had not granted the motion for involuntary dismissal, we find that I.F.’s procedural due process rights were ill-defined, ambiguously applied, and, as such, presumptively violated.” (4)

The 2020 amendments to the Title IX regulation echoed these judicial sentiments, citing the terms “fairness” 203 times and “due process” 689 times (5). In contrast, the recent OCR guidance downplays the importance of equitable campus proceedings, mentioning “fairness” three times and “due process” only once. The guidance makes no mention of the overriding purpose of a campus adjudication, which is to reach a decision of responsibility or non-responsibility that is accurate, reliable, and fair.

  1. Victim-Centered and Trauma-Informed Investigations

A victim-centered investigation is defined as one that conducts its probe “in a manner that is focused on the experience of the reported victim” (6) – implicitly excluding consideration of the respondent’s perspectives.

One type of victim-centered approach is known as “trauma-informed,” which many say lacks a sound scientific basis (7). Nonetheless, the OCR document categorically states that a school “may use trauma-informed approaches to respond to a formal complaint of sexual harassment.” (Question 28)

Courts have issued numerous decisions that decry the use of biased, guilt-presuming investigative methods. In the recent Doe v. Hobart and William Smith Colleges decision (8), the court ruled against the institution, citing the plaintiff’s allegations that the investigator utilized a trauma-informed approach that:

  • Allowed the complainant — but not the accused student — to change her story to accommodate statements made by the accused.
  • Did not highlight the inconsistencies and contradictions in the students’ statements in the final investigative report.
  • Did not mention the existence of the video taken 20-30 minutes before the alleged assault showing the complainant to be awake, alert, and fully oriented.
  • Afterwards, destroyed the audio recordings of the interviews.

To date, decisions affirming the importance of impartial and fair investigations have been issued by five appellate courts (9) and 28 trial courts (10).

  1. Virtual Hearings

The OCR guidance advises that a school may “create its own rules for conducting a live hearing” (Question 43), including the use of virtual hearings (Question 45). But courts have not been so permissive in their pronouncements of what constitutes a fair hearing.

In Doe v. University of Southern California, the appellate court ruled, “the Appeals Panel suspended John on a different theory than [the University Student Conduct Office]. John was not provided any information about the factual basis of the charges against him, he was not allowed to access any evidence used to support those accusations unless he actively sought it through a written request, and he was not provided with any opportunity to appear directly before the decision-making panel to rebut the evidence presented against him.” (11)

In Doe v. New York University, the judge ruled that a virtual hearing that was scheduled while the accused student was studying abroad impaired the student’s ability to “participate meaningfully in the hearing.” (12)

To date, decisions mandating the use of live hearings with fair procedures have been issued by two appellate courts (13) and 14 trial courts (14).

  1. Cross Examination

The OCR guidance unequivocally states that a college may “limit the questions that may be asked by each party of the other party or witnesses.” (Question 46)

But in the milestone Doe v. Baum decision, the Sixth Circuit held that “Cross-examination is essential in cases like Doe’s because it does more than uncover inconsistencies—it takes aim at credibility like no other procedural device. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. Nor can the fact-finder observe the witness’s demeanor under that questioning.” (15)

To date, decisions affirming and explicating the use of cross examination have been issued by nine appellate courts (16) and 22 trial courts (17).

  1. Parallel Track Adjudications

The document states, “OCR encourages schools to develop and enforce their [student conduct] codes as an additional tool for ensuring safe and supportive education environments for all students.” (Question 7) But courts have become wary of schools that establish parallel track adjudications as an end-run on due process.

In the Doe v. Rensselaer Polytechnic Institute decision, the court ruled, “Instead, defendant decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts… Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action.” (18)

Burgeoning Lawsuits, Costly Settlements

To date, 735 Title IX lawsuits have been filed against schools by accused students (19). A recent analysis of Title IX settlement agreements reveals that the average settlement hoovers in the mid-to-high six figures, with some settlements running as high as $1.7 million (20).

University attorneys need to assure that their Title IX policies, procedures, and training materials fulfill both the spirit and the letter of the 2020 amendments, and comply with applicable judicial decisions and state law (21).


  2. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, page 6.
  3. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 7-10.
  4. F. v. Administrators of Tulane Educ. Fund, 2013-0696 (La. App. 4 Cir. 12/23/13), 131 So. 3d 491, 499–500
  9. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 26-27.
  10. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 27-33.
  11. Doe v. Univ. of S. California 200 Cal. Rptr. 3d 851, 873 (Ct. App. 2016).
  12. Doe v. New York University, 1:20-CV-01343-GHW, 2021 WL 1226384.
  13. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 76-77.
  14. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 77-80.
  15. Doe v. Baum, 903 F.3d 575, 582-83 (6th Cir. 2018).
  16. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 81-83.
  17. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 83-87.
  18. Doe v. Rensselaer Polytechnic Inst., 1:20-CV-1185, 2020 WL 6118492, at *6-7 (N.D.N.Y. Oct. 16, 2020).
Coercive Control

When the ‘mean girl’ is a woman: How to deal with an adult bully

When the ‘mean girl’ is a woman: How to deal with an adult bully

By Cathy Alter

June 7, 2021

Thanks to the Queen Bee, I was pushed out of a friend group, disinvited from activities, tarnished by falsehoods and deserted by allies. No, this didn’t happen to me in the high school cafeteria. It was more recently, at a volunteer job I had held for six years. And my bully, let’s call her Carol, is a senior citizen.

According to Simmons, the same attributes that allow girls to be socially intelligent also allow them to be aggressive. “They are drawing from the same skill set,” she says, adding, “Social intelligence is about being savvy enough to understand people and relationships. These are the same skills girls deploy when they launch lobbying campaigns to turn peers into a target, or to figure out just the right insult that will cut someone down.

“Girls tend to use their highly attuned social antennae, instead of their fists, to wage war on other girls,” Emily Bazelon wrote in her 2013 book, “Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy.” “Girls can better understand how other girls feel,” she continued, quoting the work of Scandinavian psychologist Kaj Bjorkqvist, “so they know better how to harm them.”

It’s a lifelong skill. “The same behaviors that worked in childhood still work now,” says Cheryl Dellasega, author of six books, including “Surviving Ophelia” and “Mean Girls Grown Up.” “It’s what’s made them popular, because very rarely were they challenged.” What’s more, she continues, “by going along with the powerful aggressor, you stay with the ‘in’ group.”

Excerpted from:

Campus Office for Civil Rights Sexual Assault Sexual Harassment Title IX

PR: Growing Opposition, Both Liberal and Conservative, to the Nomination of Catherine Lhamon


Rebecca Stewart: 513-479-3335


Growing Opposition, Both Liberal and Conservative, to the Nomination of Catherine Lhamon

WASHINGTON / August 2, 2021 – In May, the White House announced its nomination of Catherine Lhamon to lead the Department of Education’s Office for Civil Rights (1).  The announcement triggered a wave of critical editorials. During the ensuing two months, 20 articles, written by liberal and conservative commentators, were published in opposition to the move (2).

During the recent July 13 hearing, Lhamon declined to respond to the criticisms. Indeed, her statements served to confirm the critics’ worst fears. Lhamon repeatedly side-stepped direct questions whether she believes in basic due process protections. She also admitted that she does not endorse the presumption of innocence, only saying that Title IX adjudicators “should be open to the possibility” that the accused student is not guilty (3).

Following the hearing, three media outlets, five non-profit groups, and seven individual commentators — reflecting both liberal and conservative perspectives — came out in opposition to the Lhamon nomination. Their statements are listed below:

Media Outlets

  1. Detroit News: Due Process under Threat on Campus, Thanks to Biden Administration (4)
  2. National Review: Biden’s Troubling Department of Education Nominee (5)
  3. Wall Street Journal: The Senate’s Lhamon Test (6)

Non-Profit Organizations

  1. SAVE: Presumed Guilty: Catherine Lhamon Cannot be Entrusted with the Job of Enforcing Anti-Discrimination Rules in Colleges (7)
  2. Foundation for Individual Rights in Education: Catherine Lhamon Still Believes the Title IX Regs Allow Students to ‘Rape with Impunity’ (8)
  3. National Association for Scholars: Lhamon Wobbles on Presumption of Innocence, Undermining Confidence that She Can be Fair (9)
  4. Title IX for All (10)
  5. Families Advocating for Campus Equality: FACE Strongly Opposes Catherine Lhamon’s Return to the Department of Education’s Office for Civil Rights (11)


  1. Charles C.W. Cooke: Guilty Until Proven Innocent: Lhamon and Biden Undermine Due Process for College Students (12)
  2. Robert Franklin: Congress Must Reject Lhamon Nomination (13)
  3. Thomas Gallatin: Biden’s DOE Nominee Threatens Student Due Process Rights (14)
  4. Buddy Ullman: Falsely Accused Former Professor Says ‘No’ to Lhamon Nomination (15)
  5. Mike LaChance: Biden Ed Dept. Nominee: Trump-Era Protections of Due Process Allow Students to ‘Rape With Impunity’ (16)
  6. Robby Soave: Catherine Lhamon, Once and Future Title IX Czar, Says Campus Rules Don’t Require ‘Presumption of Innocence’ (17)
  7. Ashe Schow: Biden Nominee For Civil Rights Position Rejects Presumption Of Innocence, Defends Tweet Claiming Trump-Era Regs Allow Students To ‘Rape’ With ‘Impunity’ (18)

Combined with the 20 editorials issued prior to the July 13 hearing, the 15 statements listed above bring the total number of opposition statements to 35.

Over 200 judicial decisions have rejected the “Kangaroo Court” procedures that Lhamon embraced during her earlier tenure at the Office for Civil Rights (19). And public opinion polls reveal that campus due process enjoys wide support from the American public, both Democrats and Republicans (20).

SAVE urges senators to oppose the Catherine Lhamon nomination.