Author: Edward Bartlett

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

Post author By Edward Bartlett
Post date August 8, 2021

PRESS RELEASE

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:

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).
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)
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)
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.

Citations:

Campus Sexual Assault Sexual Harassment Title IX

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

Post author By Edward Bartlett
Post date August 6, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

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.

Citations:

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

Post author By Edward Bartlett
Post date August 4, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

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:

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.

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).

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).

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).

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).

Citations:

https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, page 6. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 7-10.
F. v. Administrators of Tulane Educ. Fund, 2013-0696 (La. App. 4 Cir. 12/23/13), 131 So. 3d 491, 499–500
https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf
https://www.congress.gov/bill/117th-congress/house-bill/1620/text?q=%7B%22search%22%3A%5B%22hr+1620%22%5D%7D&r=1&s=1
https://www.saveservices.org/sexual-assault/investigations/
https://storage.courtlistener.com/recap/gov.uscourts.nywd.129690/gov.uscourts.nywd.129690.37.0.pdf
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 26-27.
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 27-33.
Doe v. Univ. of S. California 200 Cal. Rptr. 3d 851, 873 (Ct. App. 2016).
Doe v. New York University, 1:20-CV-01343-GHW, 2021 WL 1226384.
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 76-77.
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 77-80.
Doe v. Baum, 903 F.3d 575, 582-83 (6th Cir. 2018).
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 81-83.
Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 83-87.
Doe v. Rensselaer Polytechnic Inst., 1:20-CV-1185, 2020 WL 6118492, at *6-7 (N.D.N.Y. Oct. 16, 2020).
https://titleixforall.com/
https://www.saveservices.org/2021/07/universities-pay-for-costly-title-ix-settlement-agreements/
https://www.saveservices.org/title-ix-regulation/state-laws/

Coercive Control

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

Post author By Edward Bartlett
Post date August 2, 2021

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: https://www.washingtonpost.com/lifestyle/wellness/adult-bully-advice/2021/06/03/dffb8fc8-c3c5-11eb-93f5-ee9558eecf4b_story.html

Campus Office for Civil Rights Sexual Assault Sexual Harassment Title IX

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

Post author By Edward Bartlett
Post date August 1, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

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

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

Non-Profit Organizations

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

Individuals

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

Citations:

Office for Civil Rights Title IX

Editorialists Speak Out in Opposition to Catherine Lhamon Nomination

Post author By Edward Bartlett
Post date July 31, 2021

Editorialists Speak Out in Opposition to Catherine Lhamon Nomination

SAVE

July 31, 2021

Following Catherine Lhamon’s disastrous July 13 Senate HELP Committee hearing, a number of news organizations, non-profits, and individual commentators have come out in opposition to her nomination.

Following are the key quotes by six editorialists:

Charles C.W. Cooke: Guilty until proven innocent: Lhamon and Biden undermine due process for college students – “Under questioning, Lhamon declined to alter her previously held positions on the lack of need for hearings and cross-examination or on the desirability of the single-investigator model, and she confirmed that America’s traditional approach to presumption of innocence is not relevant to college-based adjudications.” https://www.usatoday.com/story/opinion/2021/07/30/bidens-attack-on-due-process-violates-core-american-principles/5406426001/ (July 30)
Robert Franklin: Congress Must Reject Lhamon Nomination – Lhamon was “partly responsible for the infamous ‘Dear Colleague’ letter that, at a single stroke, demolished the due process rights of every college student accused of sexual impropriety.” https://www.thewordofdamocles.com/post/congress-must-reject-lhamon-nomination (July 23)
Thomas Gallatin: Biden’s DOE Nominee Threatens Student Due Process Rights – “Lhamon argued that the judicial standard of innocent until proven guilty should not apply within the college and university setting, as trials there are not criminal proceedings. The results of this dubious and dangerous directive were several instances of falsely accused students successfully suing schools for violating their civil right to due process.” https://patriotpost.us/articles/81498-bidens-doe-nominee-threatens-student-due-process-rights-2021-07-22 (July 22)
Mike LaChance: Biden Ed Dept. Nominee: Trump-Era Protections of Due Process Allow Students to ‘Rape With Impunity’ – “Is it a good idea to put someone who believes students will “rape with impunity” in charge of civil rights in education? Lhamon is a radical.” https://legalinsurrection.com/2021/07/biden-ed-dept-nominee-trump-era-protections-of-due-process-allow-students-to-rape-with-impunity/ (July 15)
Robby Soave: Catherine Lhamon, Once and Future Title IX Czar, Says Campus Rules Don’t Require ‘Presumption of Innocence’ – “Her response to questions from the Senate HELP committee were disqualifying.” https://reason.com/2021/07/14/catherine-lhamon-title-ix-ocr-senate-help-innocent/ (July 14)
Ashe Schow: Biden Nominee For Civil Rights Position Rejects Presumption Of Innocence, Defends Tweet Claiming Trump-Era Regs Allow Students To ‘Rape’ With ‘Impunity’ – “Due process may not be as sexy a constitutional right as the First or Second Amendments, but it’s one that all Americans need to defend.” https://www.dailywire.com/news/biden-nominee-for-civil-rights-position-rejects-presumption-of-innocence-defends-tweet-claiming-trump-era-regs-allow-students-to-rape-with-impunity (July 14)

Campus Sexual Assault Sexual Harassment Title IX

Men Say ‘No,’ Too: Debunking the Female as Victim, Male as Perpetrator Paradigm

Post author By Edward Bartlett
Post date July 21, 2021

Men Say ‘No,’ Too: Debunking the Female-as-Victim, Male-as-Perpetrator Paradigm

By: Erin Pine

July 20, 2021

In 2011, the Obama/Biden administration conducted an overhaul of Title IX – the law prohibiting discrimination on the basis of sex on college campuses – by issuing the controversial “Dear Colleague Letter.” In theory, Title IX already addressed sexual assault. But the introduction of the Dear Colleague letter had the effect of removing key due process protections for the accused. On the heels of dozens of high-profile accusations, the Department of Education took a hard stance in order to prove that the Obama administration was cracking down on sexual assault. But did the DOE policy cause more harm than good?

The Office of Civil Rights introduced the infamous Dear Colleague letter in order to prod universities toward stricter campus policies. The letter sought to provide assurances that sexual misconduct would not be tolerated on college campuses – a valid and important concern. But while the Dear Colleague letter was well-intentioned, it can be better described as misguided. The letter’s overbroad, even threatening language imparted a fear of loss of government funding. As a result, university officials became quick to aggressively respond to any and all accusations of sexual misconduct.

Unless those accusations came from male students.

In 2014, UCLA researchers Lara Stemple and Ilan Meyer published an assessment of five federal surveys conducted by the Bureau of Justice Statistics, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation between 2010 and 2012.[1] This data was gathered as part of an investigation into the belief that men rarely, if ever, experience sexual assault.[2]

Surprisingly, the information collected by Stemple and Meyer demonstrated that the prevalence of sexual victimization in men mimics the prevalence of sexual victimization in women.[3] The 12-month data with respect to male victims is as follows:

- Made to penetrate: 1.1%
- Sexual coercion: 1.5%
- Unwanted sexual contact: 2.3% [4]

With respect to female victims, the corresponding numbers are:

- Rape: 1.1%
- Sexual coercion: 2.0%
- Unwanted sexual contact: 2.2%

Stemple and Meyer also identified the three most common factors that perpetuate misconceptions about male sexual victimization: reliance on traditional sex stereotypes, outdated and inconsistent definitions, and methodological sampling biases that exclude inmates.[5] Their report concluded by recommending societal changes that move beyond archaic gender assumptions, which can harm both women and men.[6]

The UCLA study is not an anomaly. A survey conducted by the Rape Abuse Incest National Network — RAINN — found that as of 1998, 2.78 million men in the U.S. had been victims of attempted or completed rape.[7] This equates to roughly one in 33 American men.[8] In 2015, the National Intimate Partner and Sexual Violence Survey produced similar numbers to that of the UCLA study. Over the 12-month period, approximately 1.6% of men experienced sexual coercion, while 2.0% of men reported unwanted sexual contact.[9]

But perhaps the most eye catching statistic: the majority of male victims (70.8%) of completed or attempted rape reported that their first experience occurred prior to age 25.[10] With college-aged students averaging between 18 and 22 years of age, it stands to reason that a majority of the sexual misconduct incidents making up that 70% occurs on college campuses. So, why is it that an accusation by a male complainant is so rarely investigated, adjudicated, or publicized?

The unfortunate truth is demonstrated by Doe v. Marymount University, a 2018 decision out of the Eastern District of Virginia.[11] John Doe presented a variety of evidence to demonstrate the university’s sex bias. Most notably, Doe alleged that in a subsequent sexual assault investigation at Marymount, a male student accused a female student of touching his genitals without his consent.[12]

Professor Lavanty, the Title IX investigator in that case as well as in Doe’s, allegedly asked the male student if he was aroused by the unwanted touching.[13] The male student responded ‘no.’ Yet Lavanty, in apparent disbelief, asked the male student again, ‘not at all?’”[14] With all inferences in favor of Doe as the non-moving party, the court concluded, “Lavanty’s decision-making was infected with impermissible gender bias, namely Lavanty’s discriminatory view that males will always enjoy sexual contact even when that contact is not consensual.”[15]

The story doesn’t end there. On June 15^th of this year, a decision was rendered in the appellate-level case, Doe v. Denver University.[16] Among the many key points highlighted in the decision, Doe presented striking statistics regarding the university’s unwillingness to investigate misconduct complaints brought by male students.[17]

Specifically, between 2016 and 2018, the University of Denver failed to launch a formal investigation into any of the 21 sexual-misconduct complaints brought by men.[18] By contrast, during that same period there were roughly 105 complaints brought by women, 14 of which were formally investigated.[19] Additionally, over the course of those two years DU received five complaints brought against female students.[20] Of those five cases, four of the complainants were male and only one was female.[21] The University failed to investigate the four male-initiated complaints against female respondents, but fully investigated the female-initiated complaint.[22]

The evidence further showed that a DU female student found guilty of non-consensual touching was given a deferred suspension, while a male student found guilty of the same offense was fully suspended.[23] In the court’s view, this was sufficient to show a pattern of implicit sex bias at the school.[24]

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. Biased assumptions about sexual trends on college campuses harm not only the accused in these cases, but the accusers as well.

But all is not lost. Since the 2011 rollout, several public policy groups and university officials have been voicing their concerns with the sexual misconduct-related Title IX policies. And those concerns are starting to be heard. It is undebatable that sexual misconduct is a widespread problem in this country that needs to be addressed and eradicated. But the one-sided effect of the 2011 Dear Colleague Letter undermines the cause it seeks to uphold. Due process applies to both parties and should be regarded as such.

Believe male victims, too.

Citations:

[1] https://pubmed.ncbi.nlm.nih.gov/24825225/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] https://www.rainn.org/statistics/victims-sexual-violence.

[8] Id.

[9] https://www.nsvrc.org/sites/default/files/2021-04/2015data-brief508.pdf.

[10] Id.

[11] Doe v. Marymount Univ., 297 F. Supp. 3d 573, 585 (E.D. Va. 2018).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Doe v. Univ. of Denver, 1 F.4th 822, 835 (10th Cir. 2021).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

Campus Title IX

Universities Pay $$$ for Costly Title IX Settlement Agreements

Post author By Edward Bartlett
Post date July 20, 2021

Universities Pay $$$ for Costly Title IX Settlement Agreements

SAVE

July 20, 2021

A growing number of settlements have been documented in Title IX lawsuits filed in federal courts. Previously, little was known about the judicial justification for these settlements. A leading Title IX litigation firm has provided SAVE with the following information, based on 75 settlement agreements across the country:

Post-Decision Settlements

Altogether, 92 post-judicial decisions have resulted in settlement agreements, to date. Cases settle for some of (or, in rare cases, all of) the following reasons:

(i) reversal of the school finding

(ii) expungement from records

(iii) a judicial order that the student can answer “no” on any future applications that have a question related to institutional discipline

(iv) agreement on a statement for future applications

(v) change of the charge to a lesser offense

(vi) destruction of files

(vii) no release of records

Settlement amounts ranged from $0 to $1.7 million. The average settlement was in the mid-to-high six figures.

Pre-Decision Settlements

To date, 104 settlement agreements have been reached prior to the issuance of a judicial decision. These cases settle for the same reasons as the Post-Decision Settlements. Often, there is no financial component to the settlement, or a minimal amount, typically under $75,000.

Campus Sexual Assault Sexual Harassment Title IX

Falsely Accused Former Professor Says ‘No’ to Lhamon Nomination

Post author By Edward Bartlett
Post date July 19, 2021

Falsely Accused Former Professor Says ‘No’ to Lhamon Nomination

By Buddy Ullman, PhD

July 18, 2021

Senator Bill Cassidy: “So even though the law say that it gives permission to rape and sexually harass with impunity, you would enforce that law.”

Catherine Lhamon: “Yes.”

Say what!?!?!!

This exchange between United States Senator Bill Cassidy (R-LA) and Catherine Lhamon, President Biden’s nominee for Assistant Secretary for the Office for Civil Rights (OCR) in the Department of Education, highlighted the closing stages of her Senate Health, Education, Labor & Pensions (HELP) Committee confirmation hearing for the position. The shocking exchange is neither distorted nor out of context. In fact, Ms. Lhamon’s preceding sentence expressed the same sentiment.

Lhamon served in the same role during the Obama administration during which she distinguished herself by her ardent application of the 2011 Dear Colleague Letter and her authorship of the 2014 Guidance document, both mercifully rescinded, that stomped all over the constitutional rights of thousands of college students and faculty, triggered >700 lawsuits from aggrieved and innocent students, and has been thoroughly condemned in 133 trial court and 24 appellate court verdicts. That President Biden appears to aspire to recreate this calamity is inexplicable.

Consistent with her response to Senator Cassidy’s question, Lhamon previously tweeted that the new Rule takes “us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” The tweet is preposterous.

So let’s be clear, Lhamon, if confirmed, will willingly enforce the implementation of the current TIX compliance Rule, which she does not support and which she also believes promulgates rape on college campuses. The OCR deserves a leader who can implement current policy in good conscience. One can only imagine how Lhamon’s stance would be received by the 4,000 institutions of higher education that must adhere to TIX regulations.

Throughout the 90-minute HELP Committee hearing, Lhamon’s responses to challenging questions were cagey, disingenuous, and occasionally dishonest. Senator Richard Burr (R-NC) asked Lhamon a series of questions about due process in campus TIX proceedings for which he requested a ‘yes’ or ‘no’ answer. He got none.

Senator Burr separately inquired whether students accused of a TIX transgression are entitled to: (1) due process; (2) view all inculpatory evidence; (3) access exculpatory evidence that might clear them; (4) a live hearing; and (5) cross-examination, all provisions in the current Rule. Lhamon side-stepped each question and provided answers to a different question that was not posed.

If I may be so bold, I can respond to Senator Burr’s questions. As a former Professor at The Oregon Health & Science University (OHSU), I was subjected to Lhamon guidance personally after I was falsely accused of sexual harassment by a student who had failed my course. I was not allowed to know the name of the complainant or the nature of the charges against me, to have witnesses, to marshal evidence on my behalf, or to defend myself in any way. Such investigative malfeasance was commonplace under Lhamon’s archived guidance.

After I was erroneously found responsible for sexual harassment, I petitioned Lhamon’s OCR directly for relief. Not only did Lhamon’s OCR sanction the procedures that OHSU employed in its investigation of me, but the OCR stressed in its written determination letter that it would have implemented a comparable course of action.

The answer to Senator Burr’s five questions is an emphatic ‘NO.’ Lhamon does not believe that constitutional protections such as due process should apply to TIX respondents. If she did, her responses to Senator Burr’s questions would have been affirmative.

Senator Burr persisted. “Of the questions that asked relative to current TIX guidelines, of those, how many do you plan to change?” Lhamon prevaricated stating “I won’t be in control of what change does or does not happen with respect to the TIX regulation.” The response is disingenuous. She will absolutely be in control of any alterations to the current TIX Rule if she is confirmed.

Senator Burr also posed twice whether Lhamon supported the presumption of innocence, a requirement of the current Rule. She again equivocated, but this time untruthfully, by asserting that the Rule lacks a presumption of innocence requisite. It most certainly does. Word games aside, Senator Burr returned to Lhamon’s fiction at the end of the hearing, and she still vacillated.

Again, let me answer Senator Burr’s important question. Lhamon does not believe in the presumption of innocence, a foundation of American jurisprudence since 1895, in a TIX proceeding. Actually, she probably doesn’t even believe that innocence is a valid defense in a TIX proceeding, something her OCR affirmed in my TIX ordeal.

My own TIX debacle is but one such an example of the presumption of guilt standard being implemented in a TIX proceeding under Lhamon’s prior OCR tenure. Indeed, my TIX investigator didn’t even bother informing me of the sexual harassment allegations against me, which she substantiated without my input or knowledge and which, as I was to first learn ten months after my case was closed, were complete fabrications.

Lhamon’s performance at the HELP Committee hearing was disqualifying for a second round as Assistant Secretary of the OCR. She demonstrated that she lacks commitment to key constitutional protections and judicial precedents that are hallmarks of the current TIX enforcement regulations, was equivocal and mendacious in response to Senators’ questions, and confirmed that she will enforce a policy that she believes fosters sexual assault on college campuses.

Lhamon does not merit confirmation.

Updated on August 1, 2021.

Campus Sexual Assault Sexual Harassment Title IX

PR: Alyssa Reid’s Lawsuit Against JMU Reveals Catherine Lhamon’s Unfitness for High Office

Post author By Edward Bartlett
Post date July 18, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Alyssa Reid’s Lawsuit Against JMU Reveals Catherine Lhamon’s Unfitness for High Office

WASHINGTON / July 19, 2021 – Alyssa Reid was a faculty member at James Madison University. nationally recognized debater, and a passionate advocate for helping students to find their own voices. On May 3, 2021, Reid filed a strongly worded Title IX lawsuit against JMU, alleging her basic due process rights had been violated by a Kangaroo Court-style campus proceeding (1).

The lawsuit arose from the break-up of a romantic same-sex relationship between Alyssa Reid and Kathryn Lese. In 2018, Lese lodged a Title IX complaint against Reid alleging a so-called “non-consensual relationship.” Over the ensuing months, the JMU Title IX coordinator colluded with Lese, thus depriving Reid of her due process rights. Reid was eventually found “responsible” and forced to resign from her university teaching post.

Ten weeks after Reid filed her 114-page lawsuit, the Senate HELP Committee convened a hearing on Catherine Lhamon, nominated to become the director of the Office for Civil Rights. A comparison of Reid’s allegations, shown below in italics, with the July 13 statements of Catherine Lhamon, reveals troubling contrasts (2):

REID ALLEGATION #1: JMU did not provide a written summary of its investigation to the parties. When Lhamon was questioned by the HELP Committee if she thought an accused student should have the right to see all the evidence, she would only commit to saying, “The current Title IX regulation, which is operational now, gives students that right.”

REID ALLEGATION #2: JMU prevented Reid from cross-examining Kathyrn Lese or her witnesses. Asked if she believed an accused student should have a right to cross-examination, Lhamon side-stepped the question: “The current regulation affords, in the hearing process, a right of cross-examination,” she replied.

REID ALLEGATION #3: JMU presumed Alyssa Reid’s guilt by placing the burden of proof on Reid to prove her innocence. When asked whether she would support keeping the presumption of innocence in the current Title IX regulation, Lhamon falsely replied, “There isn’t a presumption of innocence in the existing Title IX regulation.”

Reflecting on the allegation, Reid later averred that an accusation of sexual misconduct is “fundamentally different, something that critiques the nature of who you are to your core, that sticks with you forever.” (3) If Alyssa Reid had watched the HELP Committee hearing, surely she would have been infuriated by Lhamon’s well-studied non-answers.

A generation ago, persons laughed at the story of the Queen of Hearts who haughtily declared, “Sentence first—verdict afterwards.” On July 13, Catherine Lhamon, nominated to become an Assistant Secretary for “Civil Rights,” refused to answer simple questions about whether she “believes” in due process, and denied the existence of a crown-jewel regulatory provision guaranteeing to the accused the presumption of innocence.

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