Author: Edward Bartlett

Campus Sexual Assault Sexual Harassment Title IX

OCR Nominee Catherine Lhamon Repeatedly Side-Steps Questions About Campus Due Process

Post author By Edward Bartlett
Post date July 14, 2021

OCR Nominee Catherine Lhamon Repeatedly Side-Steps Questions About Campus Due Process and Fairness

SAVE

July 14, 2021

On July 13, 2021, the Senate HELP Committee convened a hearing about the nomination of Catherine Lhamon to become the new director of the Office for Civil Rights. The senators asked repeated questions whether Lhamon “believes” in specific due process protections. But instead of providing an answer about her personal beliefs, Lhamon gave stock answers about what the current regulation says, such as, “The current Title IX regulation gives students that right.”

See verbatim excerpts with time indicators, below. A video of the entire hearing is available online.

See SAVE press release: Presumed Guilty: Catherine Lhamon Cannot be Entrusted with the Job of Enforcing Anti-Discrimination Rules in Colleges

++++++++++++++++++++++++

00:52:52

SEN. BURR: MS. LHAMON, I’VE GOT A SERIES OF QUESTIONS, AND THEY REALLY REQUIRE A ‘YES’ OR ‘NO’ ANSWER. DO YOU BELIEVE IN THE CONCEPT OF ‘INNOCENT UNTIL PROVEN GUILTY?’

LHAMON: I DO

00:53:03

BURR: DO YOU BELIEVE AN ACCUSED STUDENT IS ENTITLED TO DUE PROCESS IN A SCHOOL DISCIPLINARY PROCEEDING?

LHAMON: I DON’T WANT TO OVERLAWYER MY ANSWER, BUT DUE PROCESS APPLIES IN PUBLIC INSTITUTIONS, AND ‘FAIR PROCESS’ APPLIES IN PRIVATE, AND I BELIEVE THAT STUDENTS SHOULD HAVE FAIR PROCESS IN ADMINISTRATIVE PROCEEDINGS IN SCHOOLS.

00:53:25

BURR: HOW ABOUT IN PUBLIC SCHOOLS? YOU GAVE A DIFFERENT—

LHAMON: IT, YEA…— YES, I THINK THAT THE UMBRELLA APPLIES IN BOTH PLACES, AND I WANTED TO BE PRECISE ABOUT THE TERM.

00: 53:31

BURR: YOU THINK AN ACCUSED STUDENT SHOULD HAVE THE RIGHT TO SEE ALL THE EVIDENCE AGAINST THEM BEFORE THEY’RE ASKED TO DEFEND THEMSELVES AGAINST AN ALLEGATION?

LHAMON: SENATOR, YOU… YOU ASKED ABOUT A RIGHT, AND I EXPECT THAT THAT MEANS A LEGAL RIGHT. AND IN THE CURRENT CONTEXT, THE TITLE IX REGULATION THAT IS OPERATIONAL NOW, AND THAT I WOULD ENFORCE IF RETURNED TO THE OFFICE FOR CIVIL RIGHTS, DOES AFFORD THAT RIGHT TO STUDENTS.

00:53:58

BURR: SHOULD AN ACCUSED STUDENT BE ALLOWED TO SEE EVIDENCE AGAINST THEM THAT COULD CLEAR THEM OF CHARGES?

LHAMON: LIKEWISE, SENATOR, THE CURRENT TITLE IX REGULATION, WHICH IS OPERATIONAL NOW, GIVES STUDENTS THAT RIGHT.

00:54:13

BURR: DO YOU THINK A COMPLAINANT AND AN ACCUSED STUDENT SHOULD BE ENTITLED TO A HEARING?

LHAMON: SENATOR, THE CURRENT REGULATION ENTITLES, IN A HIGHER EDUCATION INSTITUTION, STUDENTS TO A HEARING. THERE’S A DIFFERENT RULE APPLICABLE FOR K-12.

00:54:29

BURR: DO YOU BELIEVE A COMPLAINANT AND AN ACCUSED STUDENT SHOULD HAVE A RIGHT TO CROSS-EXAMINE— CROSS-EXAMINATION?

LHAMON: THE CURRENT REGULATION AFFORDS, IN THE HEARING PROCESS, A RIGHT OF CROSS-EXAMINATION, NOT, NOT STUDENT-TO-STUDENT, BUT THROUGH A REPRESENTATIVE.

00:54:46

BURR: AND OF THE QUESTIONS THAT I ASKED RELATIVE TO CURRENT TITLE IX GUIDELINES, OF THOSE, HOW MANY DO YOU PLAN TO CHANGE?

LHAMON: SENATOR, I, uh, I—I WON’T BE IN CONTROL OF WHAT CHANGE DOES OR DOES NOT HAPPEN WITH RESPECT TO THE TITLE IX REGULATION. THERE IS A PROCESS, THAT HAS BEGUN AT THE DEPARTMENT OF EDUCATION, AND THAT PROCESS WILL INVOLVE THE DEPARTMENT AND I—IF I’M PRIVILEGED TO RETURN—EVALUATING PUBLIC COMMENTS AND LISTENING TO THE EXPERTISE OF STAFF WHO ARE AT THE OFFICE FOR CIVIL RIGHTS NOW, WHO HAVE IN THE 4 ½ YEARS SINCE I LEFT, BEEN HONING THAT EXPERTISE AND APPLYING IT TO ENFORCEMENT EXPERIENCE THAT I DON’T HAVE BECAUSE I HAVE NOT BEEN THERE.

00:55:35

BURR: WHEN YOU AND I MET, YOU TOLD ME THAT YOU’VE BEEN PAINTED AS SOMEONE WHO ONLY BELIEVES VICTIMS, BUT THAT YOU DIDN’T AGREE WITH THAT.

WOULD YOU SUPPORT KEEPING A PRESUMPTION OF INNOCENCE REQUIREMENT IN THE CURRENT TITLE IX RULE—IF THE TITLE IX RULE IS CHANGED?

00:55:55

LHAMON: AND AGAIN, WITH THE, UH—I’M TRYING NOT TO OVERLAWYER—BUT THERE ISN’T A PRESUMPTION OF INNOCENCE IN THE EXISTING TITLE IX REGULATION, AND IN FACT THE TITLE IX REGULATION THAT THE TRUMP ADMINISTRATION ISSUED TOOK PAINS TO NOTE THAT CRIMINAL PROCEDURE DOES NOT APPLY IN SCHOOLS.

00:56:12

BURR: MY, MY QUESTION WAS: WOULD YOU SUPPORT KEEPING A PRESUMPTION OF INNOCENCE?

LHAMON: YEAH, SENATOR, I UNDERSTOOD THAT, BUT I—I COULDN’T KEEP SOMETHING THAT IS NOT THERE. IT IS NOT THERE NOW.

00:56:24

BURR: LAST QUESTION: MY UNDERSTANDING IS THAT DURING YOUR TIME AT OCR YOU DID NOT CONDUCT ANY NOTICE AND COMMENT RULEMAKING. IS THAT RIGHT?

LHAMON: THAT IS CORRECT, SENATOR.

00:56:39

BURR: YET DURING YOUR TIME YOU ISSUED MORE THAN 20 GUIDANCE DOCUMENTS. THESE DOCUMENTS INCLUDED EXPANDED DEFINITIONS OF SEXUAL HARASSMENT, DISCRIMINATION BASED ON SEX, PRESCRIPTIVE GRIEVANCE PROCEDURES, SCRUTINY OVER HOW SCHOOL DISCIPLINE STUDENTS—NONE OF THESE DOCUMENTS WENT THROUGH ANY NOTICE OR COMMENT PROCESS, MEANING PEOPLE HAD THE OPPORTUNITY TO COMMENT AND YOU COULD DIGEST THAT IN YOUR FINAL DECISION. AM I RIGHT?

LHAMON: SENATOR, WE DID NOT USE A NOTICE AND COMMENT PROCESS.

WE DID TAKE IN QUITE A BIT OF INFORMATION FROM PEOPLE WITH ALL KINDS OF VIEWS ON THE VARIOUS TOPICS, INCLUDING FOR EXAMPLE, ON THE SEXUAL HARASSMENT GUIDANCE. THERE WERE MORE THAN 35 LISTENING SESSIONS AT THE WHITE HOUSE, AND THERE WERE THREE YEARS OF MEETINGS WITH PEOPLE OF A WHOLE VARIETY OF INTERESTS ON THE TOPIC BEFORE THE DEPARTMENT ISSUED THAT GUIDANCE.

00:57:29

BURR: I THANK THE CHAIR

01:16:17

SEN COLLINS:

SEN COLLINS: MS LHAMON, LET ME START WITH YOU. I WANT TO FOLLOW UP ON SENATOR SMITH’S QUESTION TO YOU ABOUT SCHOOL DOSCIPLINE; DO YOU BELIEVE THAT SCHOOL DISCIPLINE …

01:16:46

SEN COLLINS: I WOULD HOPE IT WOULD GO WITHOUT SAYING—BUT I’M GOING TO SAY IT NEVERTHELESS—THAT EACH AND EVERY MEMBER OF THIS COMMITTEE IS VERY CONCERNED ABOUT SEXUAL ASSAULT ON CAMPUS—

LHAMON: YES—

01:17:00

COLLINS: —WE SHOULD HAVE A ‘NO TOLERANCE’ POLICY.

THE SIXTH CIRCUIT—ALONG WITH OTHER COURTS—HAS RULED HOWEVER, THAT IN CONDUCTING TITLE IX INVESTIGATIONS OF SEXUAL ASSAULTS, THAT PUBLIC INSTITUTIONS OF HIGHER EDUCATION MUST PROVIDE PARTIES WITH AN OPPORTUNITY TO SEE THE EVIDENCE, TO CROSS-EXAMINE, AH, BEFORE A NEUTRAL FACTFINDER.

AT YOUR INTERVIEW WITH THE HELP COMMITTEE STAFF, YOU STATED THAT YOU DID NOT BELIEVE THAT ACCUSED PEOPLE SHOULD NECESSARILY HAVE THAT RIGHT IN ALL INSTANCES, TO KNOW THE EVIDENCE BEING USED AGAINST THEM. AND IN FACT, YOUR TITLE IX GUIDANCE, THAT YOU ISSUED IN 2014, DID NOT PROVIDE FOR THE OPPORTUNITY FOR CROSS-EXAMINATION. THE TITLE IX RULE ISSUED BY— THAT’S IN EFFECT RIGHT NOW, GRANTS EQUAL RIGHTS TO BOTH THE ACCUSER AND THE ACCUSED, TO ACCESSES AND INSPECT RELEVANT EVIDENCE IN SEXUAL MISCONDUCT OR ASSAULT CASES IN SCHOOLS.

WILL YOU ENSURE, AS YOU LOOK AT THIS ISSUE, THAT THERE ARE DUE PROCESS PROTECTIONS FOR BOTH THE ACCUSER AND THE ACCUSED IN ANY TITLE IX REFORM THAT YOUR OFFICE UNDERTAKES, AND THAT IT IS IN ACCORDANCE WITH DECISIONS SUCH AS THAT ISSUED BY THE SIXTH CIRCUIT?

01:18:52

LHAMON: THANK YOU SO MUCH FOR THE QUESTION, SEN COLLINS, AND IT’S— THIS IS AN ISSUE THAT I STRUGGLE WITH, AND I THINK IT IS AN ISSUE THAT I UNDERSTAND TO BE IMPORTANT TO YOUR CONSTITUENTS AND AROUND THE COUNTRY.

I WILL SAY SEVERAL THINGS: ONE, I WILL ABSOLUTELY FOLLOW THE LAW. THE SIXTH CIRCUIT IS BINDING ON THE STATES THAT ARE WITHIN IT, AND I WOULD ABSOLUTELY ENSURE THAT IN THE ENFORCEMENT PRACTICE AT THE OFFICE FOR CIVIL RIGHTS, THAT THE OFFICE FOR CIVIL RIGHTS FOLLOWS BINDING LAW.

IN ADDITION, YOU ASKED WHAT I WOULD DO WITH RESPECT TO CHANGES IN THE REGULATION AND I DON’T CONTROL THAT, ON MY OWN. THE REGULATION THAT THE DEPARTMENT IS CONSIDERING, UH, WILL GO THROUGH A PROCESS THAT INCLUDES THE DEPARTMENT OF EDUCATION, ALL OF THE OTHER DEPARTMENTS THAT HAVE EQUITIES IN TITLE IX, THE DEPARTMENT OF JUSTICE, THE WHITE HOUSE, AND THERE WILL BE AN ULTIMATE DECISION. I’M NOT THERE, I DON’T KNOW WHAT PUBLIC COMMENT HAS BEEN—I DON’T KNOW HOW THAT PROCESS IS GOING.

I WOULD… I WOULD— IT WOULD BE VERY IMPORTANT TO ME, TO ENSURE, THAT THERE’S ABSOLUTE FEALTY TO WHAT THE LAW IS, AND THAT COLLEGES AND UNIVERSITIES, SCHOOL DISTRICTS, STUDENTS, ARE NOT SUBJECT TO COMPETING AUTHORITIES. I— I CAN PROMISE YOU THAT.

IN ADDITION, I JUST WANT TO CLARIFY THAT THE, THE 2014 GUIDANCE THAT I SIGNED, UH, DID NOT DIRECT THAT CROSS-EXAMINATION COULD NOT HAPPEN, AND IT ALSO DID DIRECT THAT IF IT HAPPENED, THAT THERE SHOULD BE PARITY AS BETWEEN ACCUSED STUDENTS AND COMPLAINANTS, AND IT STRONGLY DISCOURAGED THAT THE STUDENTS THEMSELVES PARTICIPATE IN THE CROSS-EXAMINATION, WHICH IS CONSISTENT WITH THE TITLE IX REGULATION THAT IS CURRENT NOW.

01:20:34

COLLINS: WHEN YOU WERE ASSISTANT SECRETARY, AS SENATOR BURR MENTIONED, YOU OFTEN RELIED ON INFORMAL GUIDANCE TO IMPLEMENT SIGNIFICANT POLICY REFORMS. THAT CONCERNS ME, BECAUSE I THINK THAT THE APA, THE ADMINISTRATIVE PROCEDURE ACT, IS REALLY IMPORTANT TO GET PUBLIC INPUT, AND THAT WHEN WE GET PUBLIC INPUT, WE USUALLY COME OUT WITH BETTER INFORMED REGULATIONS.

DO YOU STILL INTEND TO, IF YOU ARE CONFIRMED, TO RELY ON GUIDANCE OR ‘DEAR COLLEAGUE’ LETTERS RATHER THAN GOING THROUGH THE FORMAL PROCESS?

LHAMON: SENATOR, THE DEPARTMENT HAS BEGUN THE FORMAL PROCESS NOW, WITH RESPECT TO TITLE IX—SO …

01:21:28

COLLINS: I MEAN IN GENERAL

LHAMON: AND–AND I WILL SAY, I’M REALLY EXCITED ABOUT THE OPPORTUNITY TO PARTICPATE IN THE REGULATORY PROCESS. I DIDN’T HAVE THAT OPPORTUNITY WHEN I LED THE OFFICE FOR CIVIL RIGHTS IN 2013 THROUGH 2017. WHEN I CAME THAT TIME, THE REGULATORY AGENDA WAS LARGELY SET—I WAS THERE IN THE SECOND TERM OF THE OBAMA ADMINISTRATION—SO IT’S REALLY A THRILL TO ME TO CONTEMPLATE BEING ABLE TO PARTICIPATE IN THAT PROCESS, AND I LOOK VERY MUCH FORWARD TO IT. THAT WOULD BE VERY DIFFERENT FOR ME.

01:21:51

COLLINS: THANK YOU

01:27:30

SEN CASSIDY: THANK YOU ALL FOR OFFERING TO SERVE. REALLY APPRECIATE IT.

UH, MS LHAMON, YOU HAD MENTIONED IN YOUR RESPONSE TO SENATOR BURR ABOUT HOW YOU WOULD ENFORCE CURRENT LAW. BUT I HAVE A TWEET HERE FROM MAY 2020 IN WHICH YOU SAY “@BETSYDEVOSED PRESIDES OVER TAKING US BACK TO THE ‘BAD OLD DAYS’ THAT PREDATE MY BIRTH, WHEN IT WAS PERMISSIBLE TO RAPE AND SEXUALLY HARASS STUDENTS WITH IMPUNITY. STUDENTS DESERVE BETTER INCLUDING FAIR PROTECTIONS CONSISTENT WITH THE LAW.”

NOW THAT WAS YOUR TWEET ABOUT THE LAW THAT YOU ARE CURRENTLY SAYING THAT YOU WILL ENFORCE. UM, YOU WANT TO SQUARE THAT CIRCLE? YOU SEE WHAT I’M SAYING? IT SEEMS AS IF YOU’RE SAYING TO SENATOR BURR THAT YOU’RE GOING TO DEFEND SOMETHING WHICH YOU SAY GIVES PERMISSION TO RAPE AND SEXUALLY HARASS STUDENTS WITH IMPUNITY.

UH, WOULD YOU REALLY USE THOSE LAWS, OR DO YOU HAVE AN ISSUE WITH THE LAWS? OR WOULD — I—I DON’T —THERE SEEMS TO BE A COGNITIVE DISSONANCE HERE.

01:28:27

LHAMON: IF I AM PRIVILEGED TO BE CONFIRMED IN THIS ROLE SENATOR—THANK YOU FOR ASKING—IF I’M PRIVILEGED TO BE CONFIRMED IN THE ROLE, MY RESPONSIBILITY WOULD BE TO ENFORCE THE LAW AS IT EXISTS, AND THAT IS THE LAW

01:28:37

CASSIDY: SO EVEN THOUGH THE LAW SAYS THAT IT GIVES PERMISSION TO RAPE AND SEXUALLY HARASS WITH IMPUNITY, YOU WOULD ENFORCE THAT LAW?

LHAMON: YES

01:28:46

CASSIDY: I PRESUME, THEREFORE YOU WOULD—JUST BEGGING THE QUESTION—THAT YOU WOULD THEN ADVOCATE TO CHANGE THE LAW AS IT CURRENTLY STANDS?

LHAMON: WELL SENATOR, THE DEPARTMENT HAS BEGUN—I’M – I’M NOT THERE—BUT THE DEPARTMENT HAS BEGUN A PROCESS TO EVALUATE THAT REGULATION AND TO DETERMINE WHETHER AND HOW IT SHOULD BE CHANGED.

01:29:03

CASSIDY: DO YOU THINK AS IF THE LAW HAS BEEN IMPLEMENTED THAT IT HAS GIVEN THE RIGHT TO RAPE AND SEXUALLY HARASS WITH IMPUNITY?

LHAMON: I THINK THE REGULATION—I THINK WHAT I SAID IN THE TWEET—THAT, SO, THE REGULATION PERMITS STUDENTS TO RAPE AND SEXUALLY HARASS WITH IMPUNITY. I, I, I THINK THAT THE LAW—THAT THE REGULATION—HAS WEAKENED THE INTENT OF TITLE IX THAT CONGRESS WROTE.

01:29:26

CASSIDY: SO, IF SOMEBODY RAPES, THEY CAN DO IT WITH IMPUNITY? I MEAN, IF A COLLEGE KID GOES OUT AND RAPES A WOMAN, HE HAS NO PENALTY WHATSOEVER UNDER THE CURRENT REGULATION?

LHAMON: IT ALLOWS A STUDENT TO RAPE WITH IMPUNITY. MAYBE I, SENATOR, I COULD GIVE AN EXAMPLE OF WHAT I HAD IN MIND THAT I WAS WORRIED ABOUT WHEN I WROTE THAT TWEET.

THE, UH, AMONG THE RESOLUTIONS THAT I OVERSAW WHEN I LED THE OFFICE FOR CIVIL RIGHTS, INCLUDED RESOLUTIONS WHERE—FOR EXAMPLE AT AT MICHIGAN STATE—A STUDENT REPORTED THAT SHE HAD BEEN SEXUALLY HARASSED BY A COUNSELOR IN THE COUNSELING OFFICE WHEN SHE WENT FOR COUNSELING ABOUT SEXUAL HARASSMENT. SHE REPORTED IT TO THE COUNSELING OFFICE. UNDER THE CURRENT REGULATION THERE WOULD BE NO RESPONSIBILITY FOR THE SCHOOL TO INVESTIGATE.

[CROSSTALK]

01:30:12

CASSIDY: IF HE RAPED HER WOULD THERE BE? OR SHE RAPED HER, WOULD THERE BE A CONSEQUENCE UNDER CURRENT RULES? THERE CERTAINLY WOULD BE UNDER CRIMINAL LAW, RIGHT?

LHAMON: IF SOMEONE CHOSE TO PROSECUTE, THE CRIMINAL PROCESS WOULD APPLY. IF IF A STUDENT HAD BEEN RAPED AND DID NOT REPORT TO THE TITLE IX COORDINATOR, OR TO SOMEONE ELSE THAT THE SCHOOL DESIGNATED AS ABLE TO BIND THE SCHOOL, THE SCHOOL WOULD HAVE NO RESPONSIBILITY TO TAKE ACTION UNDER THE CURRENT—

01:30:40

CASSIDY: .. PRESUMABLY, THE D.A. WOULD?

LHAMON: THE D.A. WOULD HAVE AN OPTION—TO CHOOSE WHETHER TO PROSECUTE.

01:30:44

CASSIDY: [TRANSGENER DISCUSSION- HE’S A DOCTOR]

>>>>

01:44:18

SEN BURR: JUST A COUPLE OF FOLLOW UP QUESTIONS IF I CAN.

LHAMON, THE CIRCUIT COURT DECISIONS THAT HAVE BEEN REFERENCED TO, THIRD AND SIXTH, RESPECTIVELY, WERE DETERMINED IN 2018 AND 2020. WERE THOSE DECISIONS IN PLACE WHEN YOU WERE AT OCR BEFORE, WOULD THAT HAVE LIMITED WHAT YOU WOULD HAVE BEEN ABLE TO PROPOSE ON TITLE IX IN YOUR ESTIMATION?

LHAMON: SENATOR, HAD THOSE DECISIONS BEEN IN PLACE, THE OFFICE FOR CIVIL RIGHTS ABSOLUTELY WOULD HAVE FOLLOWED THEM IN THE JURISDICTIONS WHERE THEY ARE CONTROLLING.

01:44:50

BURR: THANK YOU FOR THAT. EARLIER, YOU SAID THAT THE CURRENT TITLE IX REGULATION DIDN’T INCLUDE A PRESUMPTION OF INNOCENCE STANDARD. AND IN FACT, IN SECTION 106.45 THE REGULATION SAYS THIS: “INCLUDE A PRESUMPTION THAT THE RESPONDENT IS NOT RESPONSIBLE FOR THE ALLEGED CONDUCT UNTIL A DETERMINATION REGARDING RESPONSIBILITY HAS BEEN MADE AT THE CONCLUSION OF THE GRIEVANCE PROCESS.”

SO, YOU GAVE ME A CRAFTY ANSWER, SO LET’S, LET ME ASK AGAIN: THE CURRENT REGULATION REQUIRES A PRESUMPTION THAT THE RESPONDENT IS NOT RESPONSIBLE UNTIL PROVEN OTHERWISE, WHICH WE COMMONLY CALL PRESUMPTION OF INNOCENCE.

MY QUESTION IS NOT ABOUT THE CURRENT REGULATION, BUT WHAT YOU THINK SHOULD BE THE STANDARD. SHOULD THE STANDARD BE PRESUMPTION THAT THE RESPONDENT IS NOT RESPONSIBLE UNTIL PROVEN OTHERWISE?

LHAMON: SENATOR, IF IF I MAY, I DID NOT MEAN TO OVERLAWYER YOU ON THAT ANSWER, AND I APPRECIATE THE CHANCE TO COME BACK TO IT. I, UH, I—MAYBE BECAUSE I AM A LAWYER, I AM SO FOCUSED ON A CRIMINAL PROCESS THAT IS DIFFERENT FROM AN ADMINISTRATIVE PROCESS IN SCHOOL, AND I, I – I WILL ENFORCE THE STANDARD THAT EXISTS.

AND TO YOUR QUESTION ABOUT WHAT SHOULD OR SHOULDN’T BE THERE, I WANT TO SAY THAT, YOU KNOW, THE VIEWS I HOLD SITTING HERE, ARE NOT THE VIEWS THAT I WOULD BE ABLE TO IMPOSE OR NOT IMPOSE. THERE’S A REGULATORY PROCESS THAT INVOLVES LOTS OF PEOPLE, NOT ONLY ME—THAT – NOT ME AT ALL AT THE MOMENT—THAT IS UNDERWAY AT THE DEPARTMENT OF EDUCATION.

BUT, BUT MY, MY VIEW IS THAT CIVIL RIGHTS INVESTIGATORS, INVESTIGATORS AT SCHOOLS, NEED TO START FROM THE PRESUMPTION THAT THE FACTS ARE WHAT THEY ARE, AND YOU NEED TO FIND OUT WHAT THEY ARE. SO YOU, THEY-THEY SHOULDN’T BE ASSUMING SOMEBODY IS GUILTY JUST BECAUSE THE PERSON BEEN ACCUSED— ‘GUILT’ IS NOT EVEN THE RIGHT WORD, SO NOW I’VE WALKED INTO THE CRIMINAL PROCESS—THEY SHOULDN’T BE ASSUMING THAT SOMEONE IS RESPONSIBLE BECAUSE A PERSON HAS BEEN ACCUSED, THEY SHOULD BE OPEN TO THE POSSIBILITY THAT THE PERSON IS NOT. AND I – I ABSOLUTELY SUPPORT THAT AND I THINK THAT IS IMPORTANT IN AN INVESTIGATIVE PROCESS.

01:47:00

BURR: I’M APPRECIATIVE. THAT CLEARS SOME THINGS UP.

IT-IT DOESN’T GONE UNNOTICED THAT YOU HAVE REPEATEDLY ANSWERED ON THIS SIDE OF THE AISLE [POINTING TO HIS RIGHT] THAT YOU’RE REALLY NOT IN CONTROL. THAT THERE’S A PROCESS.

BUT WHEN YOU ANSWERED OVER THERE [POINTING TO HIS LEFT] YOUR ANSWER WAS YOU ACCEPT THAT YOU WILL HAVE AUTHORITY AND RESPONSIBILITY FOR POLICY AND RECOMMENDATIONS MADE BY YOUR OFFICE. CAN’T BE BOTH WAYS. I- AND, IT’S NOT A QUESTION, UM, I JUST WANT TO POINT IT OUT, BECAUSE I THINK IT’S GOOD TO REFLECT ON WHAT YOU’VE SAID, AND TO WHOM YOU’VE SAID IT.

I THINK THAT WE HAVE TRIED TO EMPHASIZE THE FACT THAT PUBLIC COMMENT, TRANSPARENCY, INPUT, COMMENTS, ARE AN IMPORTANT PART, AND THAT WAS NOT NECESSARILY THE PATHWAY YOU CHOSE LAST TIME YOU WERE IN THE OFFICE.

I HOPE THIS TIME WE WILL CHOOSE A PATHWAY THAT DOES INCLUDE PUBLIC COMMENT, IF THAT’S WHAT THE OFFICE IS DOING CURRENTLY, BEFORE YOU ARE CONFIRMED, GREAT, I LOOK FORWARD TO YOU SHARING THOSE COMMENTS WITH US PRIOR TO ANY DECISION THAT YOU MIGHT MAKE.

I THANK THE CHAIR.

01:48:20

LHAMON: THANK YOU, SENATOR MURRAY AND SENATOR BURR, FIRST I APPRECIATE YOUR CONFIDENCE I WILL BE CONFIRMED, SO THANK YOU FOR THAT.

AND, I-I UM, I DID NOT MEAN TO COMMUNICATE A ANSWER TO ONE SIDE OF THE AISLE THAN TO THE OTHER. I SAID IN MY OPENING THAT I BELIEVE CIVIL RIGHTS ARE BIPARTISAN – I BELIEVE THAT THEY ARE – AND I WOULD BE EVEN-HANDED IN THE WAYS THAT I WORK WITH MEMBERS OF CONGRESS, AND I WOULD BE EVEN-HANDED IN THE WAYS THAT I WOULD BE ENFORCING THE LAW, IF I WERE CONFIRMED TO THE OFFICE.

Campus Title IX

Presumed Guilty: Catherine Lhamon Cannot be Entrusted with the Job of Enforcing Anti-Discrimination Rules in Colleges

Post author By Edward Bartlett
Post date July 14, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Presumed Guilty: Catherine Lhamon Cannot be Entrusted with the Job of Enforcing Anti-Discrimination Rules in Colleges

WASHINGTON / July 14, 2021 – Following Catherine Lhamon’s false claim that the current Title IX rule does not include a presumption of innocence, SAVE is calling on senators to vote ‘No’ on her nomination to lead the Department of Education’s Office for Civil Rights.

The 2020 Title IX regulation stresses the importance of the presumption of innocence in campus adjudications. The rule affirms that the grievance process must “Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.” (Section 106.45(b)(1)(iv))

But the following exchange, which took place during Tuesday’s HELP Committee hearing, reveals a level of ignorance or dishonesty on Lhamon’s part (1):

SEN. RICHARD BURR: “Would you support keeping a presumption of innocence requirement in the current Title IX rule, if the Title IX rule is changed?”

CATHERINE LHAMON: “I’m trying to not to over-lawyer. But there is no presumption of innocence in the existing Title IX regulation.”

SEN. RICHARD BURR: “My question was, would you support keeping a presumption of innocence?”

CATHERINE LHAMON: “Yes, I understood that. But I couldn’t keep something is not there. It is not there now.”

Lhamon would only commit to saying that Title IX adjudicators “should be open to the possibility” that the accused student isn’t guilty. Lhamon’s clarification suggests that she endorses a presumption of guilt standard.

Sometimes referred to as a “fundamental right,” the presumption of innocence can be traced back through centuries of legal precedent (2). The recent Doe v. Miami University decision upheld the presumption of innocence in campus cases. The Sixth Circuit Court ruled that Susan Vaughn, a member of the college adjudication panel, exercised an undue influence on the panel’s decision-making process with a harmful result: “Vaughn’s dual roles undermined her neutrality enough to overcome the presumption of impartiality afforded school officials,” the Court ruled (3).

Executive Branch officials must possess a basic understanding of the laws and regulations they are sworn to uphold, and must be fully truthful in their statements before a Senate committee. SAVE urges all members of the Senate to vote ‘No’ on the nomination of Catherine Lhamon as Assistant Secretary for Civil Rights at the Department of Education.

Twenty editorials, written by liberal and conservative commentators, have been published to date opposing the Lhamon nomination:

Shep Melnick & Peter H. Schuck, Biden’s Troubling Nominee to Head the Office of Civil Rights, Real Clear Politics (June 23, 2021) https://www.realcleareducation.com/articles/2021/06/23/_bidens_troubling_nominee_to_head_the_office_of_civil_rights_110598.html
Biden’s nominee is a ‘wolf at the door’ when it comes to due process rights for accused students, attorney warns, The College Fix (June 16, 2021) https://www.thecollegefix.com/bulletin-board/bidens-nominee-is-a-wolf-at-the-door-when-it-comes-to-due-process-rights-for-accused-students-attorney-warns/
Washington Examiner Staff, The truth about controversial Education nominee Catherine Lhamon, Washington Examiner (June 15, 2021) https://www.washingtonexaminer.com/videos/the-truth-about-controversial-education-nominee-catherine-lhamon
Justin Dillon and Stuart Taylor Jr., Opinion contributors, Ending due process: Reinstating Catherine Lhamon at the Dept. of Education is a mistake; Lhamon’s nomination is a threat to the new rules and culture of fairness. She will roll back due process protections in college sexual assault cases. USA Today (June 14, 2021) https://www.usatoday.com/story/opinion/2021/06/14/catherine-lhamons-history-dept-education-title-ix-rape-sexual-assault/7675799002/
Rick Moran, Biden’s Nominee for the DOE’s Office for Civil Rights May Be His Most Radical Yet, PJ Media (June 8, 2021) https://pjmedia.com/news-and-politics/rick-moran/2021/06/08/is-catherine-lhamon-bidens-worst-nominee-to-date-n1452969
Grant Addison, Deputy Editor, Biden’s worst nominee, Washington Examiner (June 03, 2021) https://www.washingtonexaminer.com/politics/bidens-worst-nominee
KC Johnson, The Biggest Enemy of Campus Due Process from the Obama Years Is Back, National Review (June 1, 2021) https://www.nationalreview.com/2021/06/the-biggest-enemy-of-campus-dueprocess-from-the-obama-years-is-back/
Paul du Quenoy, Senate Should Reject Biden’s Assistant Secretary of Education for Civil Rights, Dismantle Title IX, Newsmax (June 1, 2021) https://www.newsmax.com/paulduquenoy/civil-rights-catherine-lhamon-title-ix-white-house/2021/06/01/id/1023448/
Nic Valdespino, Biden’s War on Due Process, Accuracy in Academia (May 26, 2021) https://www.academia.org/bidens-war-on-due-process/
Tristan Justice, Biden Aims To Rehire Obama Title IX Enforcer Opposed To Due Process, The Federalist (May 20, 2021) https://thefederalist.com/2021/05/20/biden-aims-to-rehire-obama-title-ix-enforcer-opposed-to-due-process/
Families Advocating for Campus Equality, FACE Strongly Opposes Catherine Khamon’s Return to the Department of Education’s Office For Civil Rights (May 20, 2021) https://static1.squarespace.com/static/5941656f2e69cffcdb5210aa/t/60a6d609a7a01358d9031da6/1621546505937/FACE+OPPOSITION+TO+LHAMON+5-20-21+FINAL.pdf
Richard V Reeves, Don’t Roll Back Due Process on Campus; Biden wants to expand Title IX. Current rules on sexual assault strike a better balance between the rights of victims and the accused, Persusion (May 19, 2021) https://www.persuasion.community/p/dont-roll-back-due-process-on-campus.
Robby Soave, Catherine Lhamon, Obama’s Title IX Enforcer, Just Got Her Old Job Back; Biden has tapped her to be assistant secretary for civil rights yet again, Reason (May 19, 2021) https://reason.com/2021/05/19/catherine-lhamon-title-ix-ocr-biden-education/
Robert Shibley, Brace for a Title IX train wreck: Biden is courting disaster as he reverts to bad old rules on campus sexual misconduct allegations, New York Daily News (May 18, 2021) https://www.nydailynews.com/opinion/ny-oped-brace-for-a-title-ix-train-wreck-20210518-crq56qwnq5cyvf26x2kbgupnd4-story.html
SAVE, The Nomination of Catherine Lhamon: An Oxymoronic Injustice. (May 15, 2021). https://www.saveservices.org/2021/05/the-nomination-of-catherine-lhamon-an-oxymoronic-injustice/
National Association of Scholars, Biden Nominee for the Office of Civil Rights Could Reverse Devos’ Due Process Reforms; Catherine Lhamon’s nomination to the Office of Civil Rights promises a return to the “bad old days” when Title IX due process violations were rampant (May 14, 2021) https://www.nas.org/blogs/press_release/biden-nominee-for-the-office-of-civil-rights-could-reverse-devos-due-process-reforms
Mike LaChance, Biden Picks Catherine Lhamon, Enemy of Campus Due Process, To Head Civil Rights Office in Education Dept.; “By putting forward Lhamon for this crucial role, President Biden has signaled that he would rather colleges go back to old, failed policies”, Legal Insurrection (May 14, 2021) https://legalinsurrection.com/2021/05/biden-picks-catherine-lhamon-enemy-of-campus-due-process-to-head-civil-rights-office-in-education-dept/
Alexis Gravely, President Biden’s nominee for assistant secretary for civil rights is no stranger to the Department of Education — Catherine Lhamon held the same position during the Obama administration., Inside Higher Ed (May 14, 2021) https://www.insidehighered.com/news/2021/05/14/lhamon-nominated-assistant-secretary-civil-rights
Jeremy Bauer-Wolf, Biden’s pick of Catherine Lhamon as civil rights head could mean a return to Obama-era policies, Higher Ed Dive (May 13, 2021) https://www.highereddive.com/news/bidens-pick-of-catherine-lhamon-as-civil-rights-head-could-mean-a-return-t/600159/
Joe Cohn, Statement: Nomination of Catherine Lhamon a return to ‘old, failed policies’, FIRE (May 13, 2021) https://www.thefire.org/statement-nomination-of-catherine-lhamon-a-return-to-old-failed-policies/

Citations:

Department of Justice Investigations Law & Justice Law Enforcement Sexual Assault Sexual Harassment Start By Believing Trauma Informed

EVAWI Announces End of DOJ Funding for ‘Start By Believing’

Post author By Edward Bartlett
Post date July 9, 2021

Registration Fee Now Required for Webinars:

All 2021 Virtual Conference Sessions Available

The pandemic brought challenges, and some surprising gifts, for many of us. Cancelling our 2020 conference was definitely one of the challenges. Because we had to cancel just a few weeks before the conference was scheduled to begin, we lost money already spent on the event, as well as the registration fees. These financial losses represent a substantial percentage of the annual income EVAWI needs to operate. We know that many of you are already aware of that.

What you may not know is that our last federal technical assistance (TA) grant ended in May 2021. These TA grants have been supporting the training and technical assistance programs many of you depend on. Unfortunately, the most recent round of 2021 solicitations did not include similar funding opportunities that we could apply for. [emphasis added]

Between these two developments, EVAWI is unable to continue providing all our online services free of charge, as we have done for so long. We hope this situation will change, as we emerge from the pandemic and new grant opportunities arise.

For the time being, however, we will be charging registration fees for all our live and archived webinars. That may be bad news for some of you. But the good news is that our 2021 virtual conference was extremely successful, with over 2,000 people registered to attend. Because all the sessions from this virtual conference were recorded, we can now – for the first time ever – allow people who couldn’t register for the entire conference to pay for one or more of the 68 recorded sessions. You can find the complete agenda here. Together, this means we now have a total of 120 webinars available in our archive.

Looking ahead, we are very excited about returning to an in-person conference in San Francisco in 2022, but of course also nervous as we continue to navigate new terrain and constant changes. At this time, we are doing everything we can to continue offering our OnLine Training Institute and Training Bulletins free of charge, and we will reevaluate our sustainability in early 2022 to determine if any additional changes need to be made.

We appreciate your support, as we move forward.

Source: https://myemail.constantcontact.com/All-Webinars-Now-Require-a-Fee.html?soid=1101938584617&aid=kkloAR7295I

Campus Due Process Office for Civil Rights Sexual Assault Sexual Harassment Title IX

PR: New Analysis of Judicial Decisions Reveals Widespread Legal Support for Campus Due Process

Post author By Edward Bartlett
Post date July 7, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

New Analysis of Judicial Decisions Reveals Widespread Legal Support for Campus Due Process

WASHINGTON / July 7, 2021 – A new analysis of 206 trial and appellate court decisions reveals widespread judicial support for the new Title IX regulation that went into effect last year. The document reveals particularly strong judicial support for some of its most controversial provisions, such as cross examination. The “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation” is designed for use by judges, attorneys, policy-makers, Title IX administrators, and others.

The document reviews all 27 regulatory provisions in the 2020 regulation and concludes that each of them is consistent with at least one judicial decision. The following seven regulatory provisions were affirmed by 20 or more court decisions:

Pro-Complainant Bias: 34 decisions
Impartial Investigations: 33 decisions
Cross Examination: 31 decisions
Institutional Sex Bias: 27 decisions
Notice to Respondent: 27 decisions
Access to Evidence: 23 decisions
Evidence Evaluation: 20 decisions

Judges now view constitutionally based due process protections as requisite to sexual misconduct proceedings in public schools. As Judge Robert Jonker recently noted in Munoz v. Michigan State University, “Everyone agrees that procedural due process is implicated when a public university imposes a suspension of this magnitude.” (1)

Overall, the decisions did not turn on subtle interpretations of nuanced legal precepts. Rather, they were based on judicial recognition that colleges are failing to observe the most fundamental notions of fairness, often so gross as to suggest that sex bias was the motivating factor. A sample section from the Analysis on Institutional Sex Bias is available for viewing online (2).

For each of the 27 pertinent regulatory provisions in the Title IX regulation, the Analysis enumerates:

Regulatory language
Supreme Court decisions, if available
Appellate Court decisions, if available
Trial Court decisions
Summary

The 104-page “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation” is available for $100. Checks should be made payable to “SAVE” and sent to P.O. Box 1221, Rockville, MD 20849. Or send payment via PayPal with the notation, “Analysis of Judicial Decisions:” https://www.paypal.com/donate/?hosted_button_id=JELDTQDKAQB6A

More information about the Analysis is available online (3).

Citations:

Campus Investigations Sexual Assault Title IX

PR: In Wake of Hobart College Ruling, Universities Should Re-think Use of ‘Trauma-Informed’ Methods

Post author By Edward Bartlett
Post date July 1, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

In Wake of Hobart College Ruling, Universities Should Re-think Use of ‘Trauma-Informed’ Methods

WASHINGTON / July 1, 2021 – Last week, Judge Elizabeth Wolford ruled against Hobart College of Geneva, NY, denying the college’s motion to dismiss in a campus sexual misconduct case and allowing the lawsuit to move forward (1). Wolford also sustained the breach of contract complaint against CSC Investigations, which had investigated the allegation on behalf of the College.

The case arose from a late-night dormitory encounter between John Doe and Jane Roe in October, 2018 in which the female student removed the male plaintiff’s clothing and initiated the sexual contact. Nearly one year later, the female student filed a sexual misconduct complaint against Doe, claiming she was “blacked out on her bed” at the time.

The College contracted with CSC Investigations, located in Burlington, Vermont, to probe the case. As a result, Doe was expelled from the college in April, 2020. The following month, Doe filed a lawsuit against Hobart College.

On its website, CSC Investigations affirms its use of a trauma-informed approach (2):

“each of our investigators has received training in investigative interviewing, the effects of trauma, and the role that alcohol and drugs may play in incidents of alleged misconduct. CSC investigators have completed workshops at highly regarded educational institutions both in and outside of Vermont and attended the Trauma-Informed Sexual Assault Investigation and Adjudication Institute sponsored by the National Center for Campus Public Safety.” (emphases added)

The lawsuit claims the trauma-informed investigation:

Altered or excluded key information provided by the accused student.
Failed to conduct a follow-up interview of the accused student.
Allowed the complainant — but not the accused student — to change her story to account for statements made by the accused.
In the final investigative report, did not highlight the inconsistencies and contradictions in the students’ statements.
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.

The lawsuit concludes, “In sum, the entirety of the report was clearly written in such a way to bolster Roe’s claims and to completely obfuscate any evidence that might tend to weaken her credibility or support Plaintiff’s version of events.”

According to Andrew Miltenberg of Nesenoff and Miltenberg, which litigated the case, “This is an important decision in advancing the reality that the trauma informed approach is an inherently biased manner of investigating allegations of sexual misconduct. The fact that schools continue to use this approach is nothing short of stunning, and compromises the objectivity of the Title IX process.”

Following the judicial ruling against Hobart College, universities need to reconsider their use of controversial “trauma-informed” investigative methods that many believe lack a sound scientific foundation. https://www.saveservices.org/sexual-assault/investigations/

Citations:

Campus Due Process Sexual Assault Sexual Harassment Title IX

Florida Enacts New Campus Due Process Law

Post author By Edward Bartlett
Post date June 30, 2021

Florida Enacts New Campus Due Process Law

SAVE

June 30, 2021

Recently Florida Gov. Ron DeSantis signed HB 233, which mandates a number of due process protections, among other things. The law amends Section 1006.60 of the Florida Statutes, which pertains to Codes of conduct and disciplinary measures. The law provides for the following:

1. Timely and detailed notice
2. Access to all inculpatory and exculpatory information
3. List of witnesses
4. Presumption of innocence
5. Impartial hearing officer
6. Right to remain silent
7. Right of the accused to present evidence and witnesses
8. Active assistance of an adviser, who has the right to present evidence and question witnesses
9. Right to appeal
10. Accurate and complete record of the proceedings

The actual language of the bill, including line numbers, is shown below.

(3) The codes of conduct shall be published on the Florida
196 College System institution’s or state university’s website,
197 protect the rights of all students, and, at minimum, provide the
198 following due process protections to students and student
199 organizations:
200 (a) The right to timely written notice. The code must
201 require that the institution or university provide a student or
202 student organization with timely written notice of the student’s
203 or student organization’s alleged violation of the code of
204 conduct. The notice must include sufficient detail and be
205 provided with sufficient time to prepare for any disciplinary
206 proceeding.
207 1. The written notice must include the allegations to be
208 investigated, the citation to the specific provision of the code
209 of conduct at issue, the process to be used in determining
210 whether a violation has occurred and associated rights, and the
211 date, time, and location of the disciplinary proceeding.
212 2. The written notice is considered timely if it is
213 provided at least 7 business days before the disciplinary
214 proceeding and may be provided by delivery to the student’s
215 institutional e-mail address, and if the student is under 18
216 years of age, to the student’s parent or to the student
217 organization’s e-mail address.
218 3. At least 5 business days before the disciplinary
219 proceeding, the institution or university must provide the
220 student or student organization with:
221 a. A listing of all known witnesses that have provided, or
222 will provide, information against the student or student
223 organization.
224 b. All known information relating to the allegation,
225 including inculpatory and exculpatory information.
226 (b) The right to a presumption that no violation occurred.
227 The institution has the burden to prove, by a preponderance of
228 the evidence, that a violation has taken place. Preponderance of
229 the evidence means that the information presented supports the
230 finding that it is more likely than not that the violation of
231 the code of conduct was committed by the student or student
232 organization.
233 (c) The right to an impartial hearing officer.
234 (d) The right against self-incrimination and the right to
235 remain silent. Such silence may not be used against the student
236 or student organization.
237 (e) The right to present relevant information and question
238 witnesses.
239 (f) The right to an advisor or advocate who may not serve
240 in any other role, including as an investigator, decider of
241 fact, hearing officer, member of a committee or panel convened
242 to hear or decide the charge, or any appeal.
243 (g) The right to have an advisor, advocate, or legal
244 representative, at the student’s or student organization’s own
245 expense, present at any proceeding, whether formal or informal.
246 Such person may directly participate in all aspects of the
247 proceeding, including the presentation of relevant information
248 and questioning of witnesses.
249 (h) The right to appeal the final decision of the hearing
250 officer, or any committee or panel, directly to the vice
251 president of student affairs, or any other senior administrator
252 designated by the code of conduct, who must hear the appeal and
253 render a final decision. The vice president of student affairs
254 or person designated by the code of conduct to hear the appeal
255 may not have directly participated in any other proceeding
256 related to the charged violation.
257 (i) The right to an accurate and complete record of every
258 disciplinary proceeding relating to the charged violation of the
259 code, including record of any appeal, to be made, preserved, and
260 available for copying upon request by the charged student or
261 student organization.
262 (j) A provision setting a time limit for charging a
263 student or student organization with a violation of the code of
264 conduct, and a description of those circumstances in which that
265 time limit may be extended or waived.

Campus Sexual Assault Sexual Harassment Title IX

Impartial Investigations Are the Foundation of Equitable Proceedings for Complainants and Respondents

Post author By Edward Bartlett
Post date June 28, 2021

Impartial Investigations Are the Foundation of Equitable Proceedings for Complainants and Respondents

An impartial and fair investigation is the foundation of an equitable adjudication. In a recent guidance, the Office for Civil Rights reaffirmed, “The school must conduct an adequate, reliable, and impartial investigation that provides the parties with an equal opportunity to present witnesses and other evidence.”[1]

Because the investigative process is subject to less oversight than the adjudication, investigative bias can be difficult to discern. Unfortunately, biased investigative philosophies known as “victim-centered,”[2] “trauma-informed,”[3] or “Start By Believing”[4] are believed to be commonly utilized in campus investigations. These conviction-oriented philosophies presume the guilt of the respondent and engender confirmation bias.[5]

Trauma-informed concepts, in particular, have been derided as circular and unscientific:

Title IX: The Big Mess on Campus[6]
Title IX and “Trauma-Focused” Investigations: The Good, the Bad, and the Ugly[7]
Best-Practice Interviewing Spans Many Contexts[8]
Title IX Investigations: The Importance of Training Investigators in Evidence-Based Approaches to Interviewing[9]

Flawed campus investigations have shortchanged both complainants and the accused. At Baylor University in Texas, for example, complainants reported alleged assaults to the athletic coaches of the accused harassers, but those claims were ignored and not investigated.[10]

For these reasons, the 2020 Title IX regulation contains essential language about the need for truthful investigations:[11]

A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence. Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment. [emphasis added]

In 2019, SAVE established an online petition devoted to the need for impartial campus investigations. [12] To date, 5,131 persons have signed the petition.[13]

SAVE urges the Office for Civil Rights to retain the existing language at Section 106.45 (b)(1), and to issue additional policy directives designed to rein in guilt-presuming “victim-centered” investigations.

Citations:

[1] Office for Civil Rights Question (May 13, 2021). Questions and Answers on Civil Rights and School Reopening in the COVID-19 Environment. Question 26. https://www2.ed.gov/about/offices/list/ocr/docs/qa-reopening-202105.pdf

[2] SAVE (2016), Victim-Centered Investigations: New Liability Risk for Colleges and Universities. https://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf

[3] Center for Prosecutor Integrity, Trauma-Informed: Junk Science. http://www.prosecutorintegrity.org/sa/trauma-informed/

[4] Center for Prosecutor Integrity, Start by Believing: Ideology of Bias. http://www.prosecutorintegrity.org/sa/start-by-believing/

[5] Simply Psychology (2020). Confirmation Bias. https://www.simplypsychology.org/confirmation-bias.html

[6] Garry, Maryanne. Title IX: The Big Mess on Campus. Journal of Applied Research in Memory and Cognition (8, 2019): 411-412. https://www.saveservices.org/wp-content/uploads/TitleIX-TheBigMessonCampus.pdf

[7] Davis, Deborah & Loftus, Elizabeth. Title IX and “Trauma-Focused” Investigations: The Good, The Bad, and the Ugly. Journal of Applied Research in Memory and Cognition (8, 2019): 403-410. https://www.saveservices
.org/wp-content/uploads/TitleIXand%E2%80%9CTrauma-Focused%E2%80%9DInvestigations-TheGood
TheBadandtheUgly.pdf

[8] Brubacher, Sonja P. & Powell, Martine B. Best-Practice Interviewing Spans Many Contexts. Journal of Applied Research in Memory and Cognition (8, 2019): 398-402. https://www.saveservices.org/wp-content/uploads/Best-PracticeInterviewingSpansManyContexts.pdf

[9] Meissner, Christian A. & Lyles, Adrienne M. Title IX Investigations: The Importance of Training Investigators in Evidence-Based Approaches to Interviewing. Journal of Applied Research in Memory and Cognition (8, 2019): 389-397. https://www.saveservices.org/wp-content/uploads/TitleIXInvestigations-TheImportanceofTrainingInvestigatorsinEvidence-BasedApproachestoInterviewing.pdf

[10] Lavigne, Paula (July 13, 2018), Baylor University settles Title IX lawsuit in which gang rape by up to 8 football players was alleged. http://www.espn.com/college-football/story/_/id/24090683/baylor-university-settles-title-ix-lawsuit-which-gang-rape-8-football-players-was-alleged

[11] Section 106.45 (b)(1).

[12] SAVE, ‘One of the worst days of my life:’ Stop sham ‘Start By Believing’ investigations. https://www.change.org/p/congress-stop-sham-believe-the-victim-investigations . Accessed June 3, 2021.

[13] https://www.saveservices.org/wp-content/uploads/2021/06/2.-Petition-signatures-Attachment-B-6.6.2021.pdf

Campus Scholarships Sexual Assault Title IX

PR: On Title IX Anniversary, SAVE Deplores Widespread Discrimination of Male Students

Post author By Edward Bartlett
Post date June 24, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

On Title IX Anniversary, SAVE Deplores Widespread Discrimination of Male Students

WASHINGTON / June 24, 2021 – June 23 marked the 49^th anniversary of the passage of Title IX, which was enacted in 1972 to combat sex discrimination in schools. Regrettably, SAVE highlights an epidemic of discriminatory practices against college students who are male — a problem that appears to have worsened in recent years.

Sex-discriminatory practices have been documented at universities and colleges across the nation, including at a number of elite institutions. A recent article, for example, reported that Stanford University supports 33 programs that openly discriminate against males (1).

The sex bias is confirmed by judicial decisions, male-excluding scholarships, and female-only campus programs, which are summarized below.

Judicial Decisions

On June 15, the Tenth Circuit Court of Appeals ruled on a case involving a former student at the University of Denver. The decision revealed a pattern of pervasive unfairness to men: “John highlights that the University failed to formally investigate any of the 21 sexual-misconduct complaints brought by men from 2016 to 2018…. In sum, viewing the evidence in the light most favorable to John, we are satisfied that a reasonable jury could find that John’s sex was a motivating factor in the University’s decision to expel him.” (2)

Other appellate court rulings of prejudicial campus practices against men are: Does 1-2 v. Regents of the Univ. of Minnesota, Schwake v. Arizona Bd. of Regents, Doe v. Oberlin College, Doe v. University of Arkansas-Fayetteville, Doe v. University of Mississippi, and Doe v. Columbia University. Nineteen trial court decisions have confirmed anti-male bias, as well (3).

Male-Excluding Scholarships

Title IX’s implementing regulation, 34 CFR 106, prohibits schools from offering scholarships that, “On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate.” University responsiveness to federal investigations of alleged Title IX violations has ranged from cooperative to resistant.

On April 22, 2020, for example, the Office for Civil Rights (OCR) opened a Title IX investigation against the University of Idaho for offering 14 scholarships that were restricted to or stated a preference for female students. On June 22, 2021, the OCR concluded its investigation after the university altered its criteria for scholarship awards in order to comply with Title IX requirements.

In contrast, institutions such as Tulane University apparently have not acted in good faith. On June 18, 2018, a complaint was filed with OCR alleging Tulane was treating men unfairly by “discriminating in the provision of financial assistance of the basis of sex.” As a result, the university signed a voluntary resolution agreement promising it would cease the illegal actions by September 6, 2019. (4) Unfortunately, a 2020 follow-up review revealed the university was offering 10 female-specific scholarships, but only three scholarships for male students. In response, the OCR opened a new investigation of the recalcitrant university.

The Office for Civil Rights currently has 140 open investigations of universities for scholarships that exclude male students (5).

Female-Only Programs

A number of universities have established a variety of programs that cater exclusively to females. University of Michigan professor Mark Perry has filed hundreds of Title IX complaints against schools that sponsor leadership institutes, fellowships, summer programs, and other initiatives that openly discriminate against men (6).

Former Department of Education official Adam Kissel has documented the irony of Joe Biden’s alma mater, the University of Delaware, a school that “pervasively discriminates in favor of women and against men.” Most of the violations lie with its Lerner College’s Women’s Leadership Initiative, Kissel notes (7).

The Office for Civil Rights currently has 98 open investigations of universities for programs that exclude male students (8). This number is likely to increase as the OCR processes newly filed Title IX complaints.

Praise for Cardona’s Recent Statement

SAVE applauds Secretary Miguel Cardona’s recent affirmation that Title IX is “the strongest tool we have to protect every student’s right to equal access to educational opportunities free from sex discrimination.” (9) And universities that discriminate against men have become a focus of numerous media accounts (10).

Currently, males constitute only 43% of all undergraduate students (11). If universities were to institute sex-specific programs, their efforts logically should be focused on helping men.

Citations:

https://www.thecollegefix.com/nearly-three-dozen-stanford-programs-discriminate-against-males-complaint-alleges/
https://www.saveservices.org/2021/06/case-summary-doe-v-university-of-denver/
https://www.saveservices.org/2021/06/27-judicial-decisions-have-documented-the-problem-of-campus-sex-bias/
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/06182230-b.pdf
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/open-investigations/tix.html In the Type of Discrimination box, select “Title IX – Single Sex Scholarships”. As of May 28, 2021.
https://www.aei.org/carpe-diem/the-year-in-review-an-update-on-my-efforts-to-challenge-title-ix-violations-in-higher-education-and-advance-civil-rights-for-all/
https://thefederalist.com/2021/02/18/bidens-alma-mater-bans-men-from-posts-and-scholarships-just-for-being-men/
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/open-investigations/tix.html In the Type of Discrimination box, select “Title IX – Single Sex Campus Programs”. As of May 28, 2021).
https://www.ed.gov/news/press-releases/secretary-cardona-title-ix-strongest-tool-protecting-educational-opportunities-free-sex-discrimination
https://www.saveservices.org/equity/
https://nces.ed.gov/fastfacts/display.asp?id=98

Campus Sexual Assault Title IX

Case Summary: Doe v. University of Denver

Post author By Edward Bartlett
Post date June 23, 2021

Case Summary: Doe v. University of Denver

No. 19-1359 (10th Cir. 2021)

Christian Cooper

Juris Doctor Candidate

Antonin Scalia Law School, George Mason University

Brief Factual Summary

During John Doe’s (“John”) first year at the University of Denver (the “University”), he became romantically involved with Jane Roe. For months, the two discussed having sexual intercourse but never did so. The two also discussed being in an exclusive relationship, but John was not interested in dating Jane, and began to try to distance himself from her.

One night, an intoxicated Jane ran into an intoxicated John. Jane led John to her dorm room. The two kissed and touched each other. John could not recall what happened that night, but remembered that he and Jane took their clothes off and tried unsuccessfully to have sexual intercourse.

Jane and John dispute what happened the next morning. John said him and Jane had consensual sex, while Jane accused John of having sex with her without her consent. Jane decided to report what happened to her when she found out John told students of their sexual encounter. Jane admits that she made the report for this reason. John was not made aware of the specific allegations against him until the University issued a Preliminary Report of John and Jane’s encounter. The Final Report found John more likely than not engaged in non-consensual sexual contact with Jane. The University did not hear his appeal saying it did not meet the appeal criteria.

Procedural History

John Doe sued the University of Denver in the District Court of Colorado alleging violations of (1) Title IX, (2) procedural due process under the 14^th Amendment, (3) breach of contract, (4) breach of the covenant of good faith and fair dealing, (5) promissory estoppel, and (6) negligence. The District Court of Colorado granted Summary Judgment to the University on all claims. John appealed on the grounds that (1) there is clear evidence to create a genuine dispute of material fact as to his Title IX claim and (2) the district court erred in failing to analyze his Title IX claim under the McDonnell Douglas burden-shifting framework.

Issue

John alleges the District Court improperly applied part three of the McDonnell Douglas summary judgment standard thus improperly granting summary judgment in favor of the University.

Holdings

The District Court of Colorado improperly applied the McDonnell Douglas summary judgment standard.

If there is a one-sided investigation plus some evidence of sex bias, it should be up to a jury to determine whether sex bias exists.

Summary Judgment Standard (McDonnell Douglas) – See Doe v. University of Denver, No. 19-1359, at *13-14.

John Doe has the burden of showing that his sex was a motivating factor in the school’s investigation and disciplinary proceeding
If John clears that hurdle, the burden shifts to the University to articulate a legitimate, nondiscriminatory reason for its decision.
If the University succeeds, then the burden shifts back to John to show there is a genuine issue of a material fact as to whether the proffered reason is pretextual.

Applying McDonnell Douglas

“John raised a reasonable inference that the University’s one-sided investigation establishes a prima facie case of sex discrimination. In other words, John has sufficiently shown evidence of differential conduct that plausibly was on the basis of his sex.” at *18.
“[T]he University posits a legitimate non-discriminatory reason for its conduct: the University employees were bias against sexual-misconduct respondents, regardless of their sex.” at *19.
“[The Court] assess[es] whether John has produced enough evidence to raise an inference that the University’s proffered explanation is pretextual – that is, covering up sex-based discrimination. We concluded that John has satisfied his burden [because of the one-sided University investigation plus evidence of sex bias.]”
1. The University investigation was one-sided because:
  1. “The Final Report acknowledges Jane had chosen what pages of the SANE report to provide and had omitted potentially important exculpatory information[.]” Id. at *23.
  2. “[I]nvestigators interviewed eleven witnesses proposed by [the accuser] Jane but initially refused to interview all five witnesses proffered by [the accused] John.” Id. at *20.
  3. “In addition to Jane’s conflicting accounts of the alleged assault, the record reveals several examples of Jane making inconsistent statements about other matters to John, her classmates, and the investigators.” Id. at *21-22.
  4. “In fact, as [the accused] John points out, Jane told an array of inconsistent stories about the alleged incident . . . [a]nd none of [Jane’s] witness accounts completely align with the story [Jane] told investigators.” Id. at *23.
2. The University was biased towards men because:

1. 1. “John does not simply raise the disparity in the gender makeup of the complainants and respondents. He also points to a number of other statistical [evidence] that raise at least a fair inference of anti-male bias.” Id. at *26.
  2. “First, John highlights that the University failed to formally investigate any of the twenty-one sexual-misconduct complaints brought by men from 2016 to 2018. In contrast, during that same period, there were about 105 complaints brought by women, fourteen of which were formally investigated by the University.” Id. at *26-27.
  3. “Moreover, from 2016 to 2018, the University received five complaints brought against a female. Four of those complainants were male and one was female. The University did not formally investigate the four male-initiated complaints but did investigate the female-initiated complaint.” Id. at *27.

Conclusion

“In sum, viewing the evidence in the light most favorable to John, we are satisfied that a reasonable jury could find that John’s sex was a motivating factor in the University’s decision to expel him.” Id. at *29.

Significant Quote

“[W]here there is a one-sided investigation plus some evidence that sex may have played a role in the school’s disciplinary decision, it should be up to a jury to determine whether the school’s bias was based on a protected trait or merely a non-protected trait that breaks down across gender lines.” Id. at *29-30.

Campus Sexual Assault Sexual Harassment Title IX

Campus Due Process Enjoys Strong Support from the Public At Large

Post author By Edward Bartlett
Post date June 22, 2021

Campus Due Process Enjoys Strong Support from the Public At Large

SAVE

June 22, 2021

From 2015 to 2020, five national public opinion polls were conducted to gauge the level of public support for campus due process. Following is a summary of these polls, in reverse chronological order:

A YouGov poll commissioned by SAVE surveyed a representative sample of 2,806 persons on November 12-16, 2020:[1]

Percent of respondents who agreed:

Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system: 68%
Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime: 75%
Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves: 80%
Allegations of sexual assault on campus should be primarily handled by the state or local police: 68%

A secondary analysis according to party affiliation revealed similar levels of support among Democrats and Republicans.[2] The survey used the same questions and methods as the 2017 poll conducted for the Bucknell Institute for Public Policy — see 5. below.

A national survey conducted May 20-25, 2020 by a Fairleigh Dickinson University Poll of 1,003 adults asked, “Assume you or someone you loved reported being sexually assaulted while attending a college or university. Please tell me if you would favor or oppose each of the following:” [3]

“A live court-room style hearing for the accused and accuser to meet and cross examine each other and any witnesses with the assistance of attorneys.” 62% of respondents favored, 31% opposed, 7% didn’t know
“The opportunity for the accused and accuser to cross examine each other and any witnesses remotely with the assistance of attorneys so that they would not have to be face to face.” 67% of respondents favored, 28% opposed, 5% didn’t know, 1% refused.

A 2018 survey of 2,225 undergraduate students sponsored by the Foundation for Individual Rights in Education found widespread support for due process in sexual assault cases:[4]

80% support the presumption of innocence
68% support cross-examination
72% support a unanimous decision required for expulsion

A Rasmussen poll conducted in September, 2017 found that 73% of American adults agreed with the statement, “Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined.” Six percent disagreed, and 20% were not sure how they felt about the statement.[5]
A poll by the Bucknell Institute for Public Policy conducted July 25-August 1, 2017 of 1,200 persons reported these results:[6] Percent of respondents who agreed:

Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system: 67%
Students accused of sexual assault on college campuses should have the right to cross-examine their accusers: 61%
Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime: 71%
Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves: 81%
Allegations of sexual assault on campus should be primarily handled by the state or local police: 69%

In conclusion, due process and fairness are not partisan issues. They are quintessentially American values.

Citations:

[1] SAVE (Nov. 16, 2020), YouGov Poll on Campus Due Process. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-on-Campus-Due-Process-11.16.2020.xlsx

[2] SAVE (Nov. 18, 2020), YouGov Poll with Political Party Identification. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-with-political-party-identification-11.18.2020.xlsx

[3] Fairleigh Dickinson University (June 29, 2020), Americans Unsure About Title IX Changes to Colleges and Universities but Support Fairness and Consistency. https://view2.fdu.edu/publicmind/2019/200629/index.html

[4] FIRE (June 2018), Proceeding Accordingly: What Students Think about Due Process on Campus. https://www.thefire.org/research/publications/student-surveys/student-attitudes-due-process-survey/

[5] Rasmussen Reports (Sept. 13, 2017), Most Americans Agree With DeVos on Sexual Misconduct on Campuses. https://www.rasmussenreports.com/public_content/politics/current
_events/social_issues/most_americans_agree_with_devos_on_sexual_misconduct_on_campuses

[6] Bucknell Institute for Public Policy (Sept. 2017), Perceptions of Higher Education Survey – Topline Results. http://bipp.blogs.bucknell.edu/files/2017/09/BIPP-Higher-Ed-Toplines.pdf