Author: Edward Bartlett

Biden OCR Acting Head Appointee Has Dubious Record

Post author By Edward Bartlett
Post date February 4, 2021

Biden OCR Acting Head Appointee Has Dubious Record
by James Baresel

February 1, 2021

For over fifteen years Columbia University law professor Suzanne Goldberg has intermittently hovered around the fringes of major news stories. In 2003 she nearly achieved 15 minutes of fame as co-council in the Lawrence v. Texas case that saw the Supreme Court contradict its own precedents and declare a law against sodomy unconstitutional. Just over 10 years later she was a special advisor to her university’s president on matters of sexual assault during one of the first high profile controversies over academic institutions’ responses to rape allegations. Now Joe Biden has appointed her assistant secretary of the Department of Education’s Office of Civil Rights.

Goldberg’s new position only sounds obscure. In fact it means she will be acting director of the OCR, responsible for planning and implementing the thousand and one details needed to translate a broad agenda into practical action—rendering its new holder’s record of considerable interest.

One key point in assessing Goldberg is the distinction between how she interprets the meaning of laws is interpreted and how handles allegations concerning the facts of particular cases. Where the former is at she undoubtedly favors “spinning” laws (including Constitutional law) to fit her own ideological presuppositions, as displayed in Lawrence v. Texas. The issue here is not what one thinks of the anti-sodomy law the Supreme Court struck down. It is Goldberg’s support for a judicial activism that disregarded the original intentions of legislators and spun the meaning of texts in order to bring about a change she desired through a court’s fiat rather than normal legislative processes. That she will give similar treatment to the meaning of the civil rights legislation she is now responsible for implementing seems probable.

What this does not tell us is what standards Goldberg would set for assessing allegations that a particular person violated (her interpretation of) civil rights legislation. This question does not concern what behaviors she believes violate such legislation or whether her beliefs correspond to legislators’ intentions. It concerns the standards of evidence that must be met for allegations to be officially “proven.” On this topic her record at Columbia University is too ambiguous to be reassuring.

Insight into Goldberg’s attitudes can be gained from the case of Emma Sulkowicz, who attained notoriety in 2014 as a sort of forerunner to the “Me Too” movement by melodramatically carrying a mattress around Columbia’s campus for her entire senior year. To the media she claimed to be protesting the university’s refusal to expel a student who had raped her. In reality a university investigation had concluded her allegation failed to meet even the standard of “more likely than not,” a decision reached despite excluding evidence in the accused student’s favor . The New York City police also determined Sulkowicz’s claims could not be substantiated, while the accused student voluntarily met with a member of the district attorney’s office and was assured there were no grounds for prosecution.

Sulkowicz then took her story public, launching a campaign to drive her alleged attacker from the university and revealing his name in violation of Columbia’s confidentiality policies. Short of expelling the accused student without evidence, the university surrender as abjectly as possible. Policies establishing that the break of confidentiality was grounds for disciplinary action were changed rather than enforced One of Sulkowicz’s professors accepted her mattress carrying as a “visual art project” that served as her major’s equivalent of a thesis with the full acquiescence of the administration. Not surprisingly, the accused student was subjected to ostracism and harassment.

Goldberg would not only have played a role in formulating the administration’s response to this situation as an adviser on sexual assault policies but was appointed to the office of Executive Vice President for University Life created (in part) to more thoroughly address such matters It is hard to imagine she would have been in such positions of trust while deeming the university’s low standards of proof unacceptable. When Sulkowicz’s supporters staged a “Day of Action” (carrying their own mattresses) Goldberg and the university president issued a statement saying that: “No person who comes to a university or college to learn and live should have to endure gender-based misconduct today, particularly the young women who most frequently sustain these violations.” After the accused student sued the university, its entrusted its defense to a lawyer with whom Goldberg co-taught classes rather than a member of the firm it usually employed.

Despite her indulgence of unofficial tarring of individuals cleared by formal investigations, Goldberg does seem to have the integrity to insist that such investigations be conducted in an unbiased manner aimed at objectively determining whether or not allegations are corroborated by the level of evidence stipulated by whatever regulations happen to be in force. On this point at least she has been willing to protect justice despite the ire of Columbia’s would-be lynch mobs She also revised Columbia policies not only to more effectively respond sexual assault allegations but to better assure due process for the accused in formal investigations. Subsequent to this, however, it introduced further policies revisions aimed at countering federal regulations instituted by the Trump administration in the interests of due process.

While Goldberg has the integrity to rise above show trials and (at least in official proceedings) guilty until proven innocent assumptions, her concern for justice seems too meager to be reassuring.

Source: https://ifeminists.org/e107_plugins/content/content.php?content.1492

Investigations Start By Believing Trauma Informed Victim-Centered Investigations

PR: New Resource for Defense Attorneys: Mounting an Effective Defense in Proceedings Tainted by ‘Victim-Centered’ Philosophy

Post author By Edward Bartlett
Post date February 3, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New Resource for Defense Attorneys: Mounting an Effective Defense in Proceedings Tainted by ‘Victim-Centered’ Philosophy

WASHINGTON / February 3, 2021 – A new report released today addresses the growing influence of guilt-presuming “victim-centered” concepts in criminal proceedings. Titled, “Defending Against ‘Victim-Centered’ Proceedings: Guide for Criminal Defense Attorneys,” the report features strategies and verbatim statements to counter bias during each stage of the legal process:

Voir Dire
Opening Statement
Cross Examination: Complainant
Cross Examination: Investigator
Cross Examination: Prosecution Expert Witness
Closing Argument

“Victim-centered” approaches, also known as “trauma-informed” or “Start By Believing,” are gaining wider acceptance among police officers, prosecutors, and even judges in sexual assault, domestic violence, and child abuse cases:

Investigative bias by police officers has been linked to 35% of all wrongful convictions (1). But the International Association of Chiefs of Police makes the claim that “Victim-centered, trauma-informed approaches to crime can support victim recovery and engagement with the criminal justice system.” (2)

Prosecutors increasingly are invoking victim-centered theories. One of the most common theories is the complainant experienced “tonic immobility,” resulting in the person being unable to resist an impending assault. This claim has been refuted by the National Association of Criminal Defense Lawyers (3).

Judges are being urged to embrace victim-centered philosophy, as well. The website of the National Council of Juvenile and Family Court Judges, for example, reveals, “The NCJFCJ’s work with courts is informed by a focus on trauma using a universal precautions approach that assumes children and families involved in the court system have experienced some form of trauma that may be mitigated through court-based interventions.” (4) Policies that “assume” a party has been traumatized serve to vitiate the presumption of innocence and harm judicial impartiality.

Many authorities have voiced criticism of “victim-centered” and “trauma-informed” methods. Defense attorney Scott Greenfield ironically reasons, “The ‘trauma informed’ approach is not to ask, not to question, but to believe.…Who is the victim would seem to be a critical question, but ‘trauma informed’ policing says it’s the woman and should it be the falsely accused man, too bad, so sad. Take a bullet for the cause, guy.” (5)

Victim-centered methods remove a defendant’s due process right to a fair investigation and adjudication. Defense attorneys making discovery requests of police, prosecutors, and judges are urged to ask if they have received “victim-centered” training in order to assess the potential for actual bias and/or the need for recusal.

The new report, developed by SAVE, is available online: https://www.saveservices.org/wp-content/uploads/2021/02/Defending-Against-Victim-Centered-Proceedings.pdf

Links:

Title IX

Will Biden’s Education Secretary Avoid Ideological Battles?

Post author By Edward Bartlett
Post date January 25, 2021

Will Biden’s Education Secretary Avoid Ideological Battles?
By James Baresel

No sooner had United States Secretary of Education Betsy DeVos issued new Title IX regulations for the handling of sexual assault and harassment allegations by colleges and universities this past May than Joe Biden pledged a reversal of policy—claiming that restoring the presumption of innocence and mandating opportunities for cross examination of accusers would “shame and silence survivors.” Whether or not due process will come under renewed assault now largely depends on the man Biden has chosen as DeVos’s replacement, Miguel Cardona.

A former public school teacher and administrator who became Connecticut’s Educational Commissioner in 2019, Cardona has yet to take public stances on most contentious issues, Title IX included. His record, however, suggests a man who, though disconcerting enough, is about as tolerable as any Biden might have appointed. The bad news is that he seems to embrace the usual leftist laundry list of policies and “causes.” The good news? Strong indications that they are not his real priorities. One cause for concern is Cardona’s promotion of the narrative claiming certain segments of the population constitute “victim groups” that are habitually mistreated by “privileged” ones. Though the context in which he did so concerned racial issues rather than women or sexual assault, a certain mindset approaches these various matters in the same way. “Victim groups” (women or racial minorities) are given the strong benefit of the doubt. The “privileged” (men or white people) are treated as guilty until proven innocent.

That Cardona shares such presuppositions is suggested by his reference to “several tragic, high profile and disturbing acts of violence against people of color at the hands of police.”

Aside from George Floyd’s death, fuller investigation into such cases has generally shown narratives based in anti-police prejudice to be false. Even those officers not fully exonerated by the evidence have tended to be guilty of no more than poor reactions to tense situations created by their alleged victims. In other cases the final evidence has been inconclusive. For a man who promotes a “guilty until proven innocent” narrative to an entire state’s public school system to be charged with the administration of justice under Title IX can only be cause for concern.

Concern is also raised by Cardona’s promotion of the theory of “microaggressions.” The question is not so much what Cardona believes to constitute harassment as the potential consequences of broader attitudes he has attempted to inculcate. If students come to believe that making a “fake-smile” while “our body language says we’d rather be somewhere else” can be a “microaggression” they can be depended upon to allege sexual harassment when others’ behavior can be (artificially) construed as “insufficiently” avoiding the slightest hints of unwanted romantic or sexual attention.

As already mentioned, however, Cardona does seem to be primarily concerned with educating children rather than pushing ideological agendas. Continuing the policy he pursued in Connecticut, the first task he has assigned himself in his new role is reopening schools that have continued using online learning to control the spread of Covid. This does not just indicate his real priorities. It also suggests a man willing to buck party lines for the good of children and a realist willing to accept dangers, risks and imperfections.

Further evidence that Cardona’s ideological orientation might not be central to his new work comes from the Center for Education Reform. A conservative organization devoted to reducing federal influence on schools, the Center praised him for expressing “understanding about the importance of options and of communities making decisions for their own unique circumstances.”

Such dispositions could take the edge off implementation of Biden’s agenda. A man focused on getting students back into classrooms probably won’t be in a rush to alter Title IX regulations, a process that could take years to complete. And he could bring moderation to the latter issue rather than see it become a partisan quagmire that, each new administration revising regulations at the cost of time and effort that could be focused on education efforts.

Taken as a whole, Cardona has the potential to follow somewhat moderate courses. Finding areas of agreement that allow for bipartisan cooperation could help him to develop respect for and goodwill towards more conservative individuals and interest groups. Work on time consuming common projects might leave him putting more contentious matters on the back burner. Reopening of schools provides an issue on which conservatives and libertarians can ally with Cardona. Left-wing Covid alarmists might alienate him.

Fighting the new education secretary might become necessary. But since some ideologues will be doing their best to drag him into their combative camp, it would be best to find ways of enticing him towards moderation rather than pushing him into their arms.

Source: http://www.ifeminists.com/e107_plugins/content/content.php?content.1489

Domestic Violence Sexual Assault Start By Believing Trauma Informed Victim-Centered Investigations

One-Third of Wrongful Convictions Involve Police Manipulation of Evidence

Post author By Edward Bartlett
Post date January 21, 2021

One-Third of Wrongful Convictions Involve Police Manipulation of Evidence. With ‘Victim-Centered’ Investigations, It May Get Worse.

Center for Prosecutor Integrity

January 21, 2021

The National Registry of Exonerations has catalogued every exoneration in the United States since 1989. Recently the NRE published a report on the long-standing problem of police misconduct. Titled, “Government Misconduct and Convicting the Innocent,” the document is based on the review of 2,400 exonerations (1). Overall, the analysis found that 35% of the cases involved police officer misconduct and 30% implicated prosecutorial misconduct.

The document reveals that police actions that lead to a conviction of an innocent person typically involve the manipulation of evidence in order to increase the likelihood of a conviction. The manipulation of evidence by police officers falls into five categories (some cases fell into more than one category):

Witness Tampering — 13% of wrongful convictions

Procuring false testimony — Inducing a civilian witness to testify to facts the officer knows the witness did not perceive (3% of wrongful convictions)
Tainted identifications – Deliberately inducing a witness to identify a suspect during a lineup, whether the witness recognizes that suspect or not (7% of wrongful convictions)
Improper questioning of a child victim – Repeated, insistent, and suggestive questioning of a child, precluding the child from denying that he or she was a victim of sex abuse (3% of wrongful convictions)

Misconduct in Interrogations – 7% of wrongful convictions

Actual or threatened violence
Sham plea bargaining and other lies about the law
Threats to relatives and other third parties

Fabricating Evidence – 10% of wrongful convictions

Fake crimes – Making false claims as ordinary lay witnesses, saying the defendant committed a crime that never happened, often involving the planting of contraband (5% of wrongful convictions)
Forensic fraud – Presenting false evidence against the defendant, concealing/distorting true evidence that might have cleared them, or planting false evidence (3% of wrongful convictions)
Fabricated confessions – Making up confessions by the defendants that in fact did not occur (2% of wrongful convictions)

Concealing Exculpatory Evidence – 7% of wrongful convictions

Impeachment of prosecution witnesses:
- Incentives provided to testify
- Inconsistent statements
- Criminal records and histories of dishonesty
Substantive evidence of innocence:
- Forensic tests
- Alternative suspects
- Evidence that the defendant did not commit the crime

Perjury at Trial – 13% of wrongful convictions

False statements about the conduct of investigations
False statements about witness statements

Overall, there were only small differences in percentages of official misconduct for White versus Black exonerees. But for murder cases, 78% of Black exonerees, compared to 64% of White exonerees, experienced official misconduct. The misconduct disparity was even greater for drug crimes: 47% among Blacks and 22% for Whites.

As noted above, misconduct by police officers contributed to 35% of the 2,400 wrongful convictions. The NRE report reveals that virtually all of the cases consisted of actions designed to manipulate the evidence to increase the likelihood of a conviction. A majority of the cases involved the direct manipulation of evidence – fabricating and concealing evidence, and making false statements at trial. The remaining minority of cases involved the indirect manipulation of evidence by means of witness tampering and misconduct in interrogations.

What are prospects for the future?

In recent years, activists have been promoting the use of so-called “victim-centered” approaches, both in the criminal justice system and on college campuses. A recent announcement from the International Association of Chiefs of Police, for example, makes the claim that “victim-centered” approaches “can support victim recovery and engagement with the criminal justice system” and “promote enhanced victim and community safety while helping law enforcement solve and prevent crime.” (2)

Despite the feel-good aura of this gauzy description, the reality of “victim-centered” approaches is that they compromise investigative impartiality, bias evidence against the defendant, and predispose to wrongful convictions. Victim-centered methods (3):

Presume the guilt of the defendant and refer to the complainant as a “victim”
Avoid asking probing or detailed questions in order to not “retraumatize the victim.”
Reflexively attribute inconsistencies in the complainant’s statements to life-threatening trauma.
“Cherry-pick” the evidence in order to increase the likelihood of a finding of guilt.
Write the investigative report in a way to portray the sexual contact as non-consensual.

One Department of Justice report, “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence,” went so far as to urge victim-centered investigations to hand “control of the process back to the victim” (p. 9) and even allow the complainant “to request certain investigative steps not be conducted” (p. 13). (4) The ill-considered report was later removed without explanation or notice. The original DOJ press release with the defunct link can still be seen online (5).

If we want to curb the police manipulation of evidence and ensuing wrongful convictions, we need to discourage the use of “victim-centered” approaches, and work to restore police investigations that are impartial, balanced, and fair (6).

Citations:

Title IX Title IX Equity Project

PR: New ED Directive Says Universities Must End Sex-Discriminatory Scholarships and Programs

Post author By Edward Bartlett
Post date January 17, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New ED Directive Says Universities Must End Sex-Discriminatory Scholarships and Programs

WASHINGTON / January 18, 2021 – The U.S. Department of Education (ED) has just released a new guidance that clarifies the Title IX ban on school scholarships and programs that discriminate on the basis of sex (1). The document, titled, “Questions and Answers Regarding OCR’s Interpretation of Title IX and Single Sex Scholarships, Clubs, and other Programs,” was released on Thursday.

The directive affirms the general principle that colleges should not impose sex-based preferences or restrictions, stating “a school may not administer scholarships, fellowships or other forms of financial assistance that impose a preference or restriction on the basis of sex, with limited exceptions.” (Question 3)

The document goes on to clarify that colleges generally may not:

Use a program title or description that implies a preference or restriction based on sex, such as the “Center for Women and Gender Equity Non-Traditional Scholarship” (Question 5)
Advertise or promote third-party scholarships, fellowships, or other forms of financial assistance that impose a sex-based preference or restriction (Question 6)
Separate or exclude individuals on the basis of sex from academic or extracurricular activities, with the exceptions of programs involving contact sports, ability grouping in physical education classes, and choruses. (Question 10)
Allow a school-recognized club or other program use a name that implies a sex-based preference or restriction, such as a student chapter of the Society of Women Engineers (Question 11)

The guidance states that a university may offer sex-specific financial assistance as part of a remedial action effort, but only if the school is able to “clearly articulate why the particular sex-based scholarship or program was necessary to overcome the conditions in its own education program or activity which resulted in limited participation.” (Question 4)

In anticipation of the new directive, George Washington University ordered 23 student groups to amend their constitutions to comply with the school’s nondiscrimination policy. These groups include Girls Who Code and female-only service groups (2).

Over the past two years, the SAVE Title IX Equity Project has reviewed the websites of 346 universities and colleges in all 50 states and the District of Columbia to identify illegal sex-specific scholarships. Overall, the review found that 68.5% of universities offered scholarships that discriminate against male students (3).

The Office for Civil Rights currently has 228 investigations underway to remedy these Title IX violations (4). A number of the institutions already have removed their discriminatory programs and scholarships (5).

Links:

Trauma Informed Wrongful Convictions

Trauma-Informed: A Cancer on Our Nation’s Legal System

Post author By Edward Bartlett
Post date January 14, 2021

SAVE

January 14, 2021

In recent years, a trendy new investigative approach has been pushed both on college campuses and in the criminal justice system. Called “Trauma-informed,” it claims that sexual assault and domestic violence victims are so traumatized by the experience that they are unable to provide a coherent account of the assault.

Which means that every allegation must be taken at face value as truthful, and investigators are not supposed to challenge or question their statements. And every complainant is called a “victim.”

But “trauma-informed” is factually dishonest, because researchers have found that victims of trauma often have an enhanced recall of the details of the event. “Trauma-informed” ideology also eliminates the presumption of innocence, and turns investigators into therapists and social workers. This leads to wrongful findings of guilt.

Nonetheless, trauma-informed activists continue to push forward. Recently the International Association of Chiefs of Police issued a solicitation to do trauma-informed training, making the misleading claim that, “Victim-centered, trauma-informed approaches to crime can support victim recovery and engagement with the criminal justice system.”

Let’s all speak out on the dishonesty behind the “trauma-informed” movement. Contact the IACP and let them know what you think. Here’s the link: https://www.theiacp.org/contact-us

Please try to be polite.

Domestic Violence False Allegations

New Incentives to Falsely Accuse in NY

Post author By Edward Bartlett
Post date December 28, 2020

NY Adds a New Factor to Consider for Equitable Distribution: Domestic Violence

On April 3, 2020, tucked away in a bill largely addressing the New York State budget for the 2020-2021 fiscal year, the Legislature amended Domestic Relations Law (DRL) §236B(5)(d) by adding a new factor a court must consider in distributing property between divorcing spouses. 2020 NY Senate-Assembly Bill S-7505-B, A-9505-B. The law adds domestic violence as a factor and mandates that the court consider “whether either party has committed an act or acts of domestic violence, as described in [Social Services Law §459-a] against the other party and the nature, extent, duration and impact of such act or acts.” DRL §236B(5)(d)(14).

As admirably well-intentioned as this amendment is, it represents a significant departure from current law, which, absent “egregious” misconduct, has principally been fault-neutral since the advent of equitable distribution 40 years ago. It will have repercussions for the courts, practitioners, and litigants.

Source: https://www.law.com/newyorklawjournal/2020/07/24/domestic-violence-and-equitable-distribution-implications-of-the-amendment-to-drl/?slreturn=20201128110515

Domestic Violence

Need to Remove $40M ‘Pork’ for Transitional Housing

Post author By Edward Bartlett
Post date December 23, 2020

Does Repeating a Lie 1,000 Times Make it the Truth?

Need to Remove $40M ‘Pork’ for Transitional Housing

Coalition to End Domestic Violence

December 23, 2020

On March 23, the National Task Force to End Sexual and Domestic Violence issued an Alert with this startling coronavirus claim: “Survivors of domestic violence and sexual assault are facing extreme danger and risk.”

Even though the Alert did not provide any evidence to support its claim, the CARES Act, signed into law just four days later, included $45 million for transitional housing for domestic violence victims.

But the predicted abuse catastrophe never happened. Four separate studies concluded that overall, there was no increase in domestic violence, and some cities saw a significant decrease:

The National Commission on COVID-19 and Criminal Justice concluded, based on reports from 13 cities, “No significant change in domestic violence over the previous year.”[1]
The Marshall Project found declines in domestic violence cases in Chicago, IL, Austin, TX, and Chandler, AZ, ranging from 13% to 23%.[2]
The Coalition to End Domestic Violence compiled police reports from 33 police departments around the country, which revealed steady numbers of domestic violence calls in 19 departments, small increases in three departments, and decreases in 11 jurisdictions.[3]
The Major Cities Chiefs Association reported a 16% decline in rapes in large cities during the first 9 months of 2020, compared to 2019.[4]

Despite these reports, countless media accounts continued to promote the COVID-abuse myth, sounding the constant alarm of an imminent “spike” in domestic violence and sexual assault. Even lawmakers were fooled by the hoax.[5]

The credibility of the claims was cast into further doubt because they never mentioned the existence of the 4.2 million male abuse victims, compared to 3.5 million female victims, each year (based on CDC numbers).

The bill that was approved by Congress on Monday included $40 million for transitional housing (page 168).

Commentator Corrine Barraclough reveals, “The myth that domestic violence is surging in lockdown will become one of the biggest lies the gendered narrative leans on for additional funding.”[6]

We can’t allow this pernicious lie to continue. Congress needs to remove the $40 million for this wasteful domestic violence program.

Citations:

[1]https://cdn.ymaws.com/counciloncj.org/resource/collection/D26974EF-0F75-4BDE-ADE7-86DA0741DC49/Impact_Report_-_Crime.pdf

[2] https://www.themarshallproject.org/2020/04/22/is-domestic-violence-rising-during-the-coronavirus-shutdown-here-s-what-the-data-shows

[3] http://endtodv.org/pr/lawmakers-should-not-be-fooled-by-bogus-claims-of-a-domestic-violence-surge/

[4]https://www.majorcitieschiefs.com/pdf/news/mcca_violent_crime_report_2020_and_2019_jan1tosept30.pdf

[5]https://axne.house.gov/sites/axne.house.gov/files/Axne%20Ernst%20DV%20Funding%20Letter%206.4.20.pdf

[6]https://www.facebook.com/search/top/?q=corrine%20barraclough&epa=SEARCH_BOX

Campus Title IX

How the New Title IX Regulation Benefits Sexual Assault Complainants

Post author By Edward Bartlett
Post date December 10, 2020

How the New Title IX Regulation Benefits Sexual Assault Complainants

SAVE

December 12, 2020

Opponents of the U.S. Department of Education’s impending new Title IX regulation fear a huge setback in complainant’s rights. The National Women’s Law Center, a survivor advocacy organization, views the proposed regulation as radically weakening the department’s enforcement of Title IX protections against sexual assault and other forms of sexual harassment in schools. (1)

A strong argument can be made that the new Title IX regulation will benefit sexual assault complainants. (2) Accusers will have far more power to choose alternative paths of resolution, not be bound by their institutions’ rigid rules. Definitions of sexual harassment and supportive measures will be clear and reasonable. Complainants will be able to challenge the credibility of the respondent’s version of events via cross-examination.

In the spirit of empowering complaints with confidence, here are some of the ways the new Title IX regulation will benefit all complainants, the majority of which are women:

Available remedies
- Remedial action
  - Complainants will be assured if they are not satisfied with the actions of their institution, they can file a complaint with OCR, and if OCR finds the institution has violated these regulations, OCR will mandate remedial action.
Effect of other requirements and preservation of rights
- Constitutional protections
  - Complainants’ Constitutional rights are protected, including all rights under the First, Fifth, and Fourteenth Amendments.
Designation of coordinator, dissemination of policy, and adoption of grievance procedures
- Designation of coordinator
  - Complainants will know the identity and contact information of their institution’s Title IX Coordinator.
- Adoption of grievance procedures
  - Complainants will be assured of a prompt and equitable response to and timely resolution of their complaints.
Definitions
- Formal complaint
  - Complainants will sign a document upon filing a formal complaint. This will be evidence that they initiated a formal complaint, in case they choose to file a complaint with OCR for institutional negligence or non-compliance with the regulation.
- Sexual harassment
  - Complainants will be assured of protection against sexual harassment by faculty and staff.
  - Complainants will be assured that sexual conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution.
- Supportive measures:
  - Complainants will receive free supportive measures before or after filing of a formal complaint, or even when no formal complaint is filed.
Recipient’s response to sexual harassment
- General
  - Complainants will be assured their institution will respond to a formal complaint. No more deliberate indifference by institutions.
- Specific circumstances
  - Complainants will be assured that complaints about serial perpetrators will be investigated.
  - In cases where the complainant chooses not to file an initial formal complaint, but takes advantage of supportive measures, the complainant reserves the right to file a formal complaint at a later time.
- Emergency removal
  - Complainants will be assured that respondents that are deemed an immediate threat to safety will be removed from campus.
Grievance procedures for formal complaints of sexual harassment
- Basic requirements for grievance procedures
  - Complainants will be assured they have the right to see all evidence and that all relevant evidence will be evaluated.
  - Complainants will be assured of no conflict of interest or bias in persons involved with evaluating the formal complaint, and that all parties involved will be properly trained.
  - Complainants will be assured of a reasonably prompt conclusion of the grievance process, which still allows for delays for good cause.
  - Complainants will be properly informed of the appeal process.
  - Complainants will understand the range of available supportive measures.
- Investigations of a formal complaint
  - Complainants will not be responsible for proving perpetrator’s responsibility.
  - Complainants will be allowed to present witnesses and inculpatory and exculpatory evidence.
  - Complainants will not be restricted from discussing the allegation.
  - Complainants may have an advisor of their choice, and the advisor may participate in the proceedings per recipient restrictions equal to each party.
  - Complainants will be allowed to cross-examine their alleged perpetrator, and challenge the alleged perpetrator’s credibility.
  - Complainants’ previous sexual behavior or predisposition is not allowable evidence.
  - Complainants do not need to be in the same room as the alleged perpetrator.
  - Complainants will get a copy of the full investigative report at least 10 days prior to a hearing or determination regarding responsibility.
- Determination regarding responsibility
  - Complainants will be assured a neutral party will be the decision-maker.
  - Complainants will have written documentation of all steps taken in the adjudication process, in the event they choose to file an OCR complaint or lawsuit.
  - Complainants will be assured the determination will be based on facts with a clear rationale for the institution’s actions, and that remedies provided will be designed to restore or preserve access to their education.
- Appeals
  - Complainants have the right to appeal, if that right is available to the respondent.
  - Complainants will be assured the appeal decision-maker has not been previously involved in the case.
- Informal resolution
  - Complainants can seek an informal resolution if desired.
- Recordkeeping
  - Complainants will be assured relevant records will be maintained in the event they choose to file an OCR complaint or lawsuit.

Survivor advocacy organizations should embrace and endorse the benefits of the new Title IX regulation. They should focus on complainants’ empowerment upon implementation of the new rule.

Citations:

Campus Sexual Assault Sexual Harassment Title IX

PR: Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

Post author By Edward Bartlett
Post date November 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

WASHINGTON / November 18, 2020 – A recent SAVE survey, conducted by YouGov, shows a strong majority of Americans support due process for college students accused of sexual offenses. The survey of 2,608 adults, representative of the U.S. population, reveals the following:

Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves. Agree: 81%
Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system. Agree: 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. Agree: 75%

The survey also found that 68% of respondents said this statement, “Allegations of sexual assault on campus should be primarily handled by the state or local police,” comes closer to their opinion, compared to the statement, “Universities should take a leading role in investigating allegations of sexual assaults on campus.”

The recent survey was designed to replicate a 2017 survey conducted by the Bucknell Institute for Public Policy, which used the same questions and reported nearly identical results to the four questions listed above (1).

The Bucknell survey also queried, “Students accused of sexual assault on college campuses should have the right to cross-examine their accusers.” The new Title IX regulation only allows an intermediary to ask questions of the complainant, not the accused, so this question is no longer relevant to current campus policies.

Fieldwork was undertaken November 12-16, 2020. The survey was carried out online. The survey results are representative of all U.S. adults, aged 18+. This survey was conducted using an online interview administered to members of the YouGov Plc panel of individuals who have agreed to take part in surveys. The full survey results can be viewed online (2).

To date, federal and state judges have issued 193 decisions favorable to accused students (3). In a recent case involving Rensselaer Polytechnic Institute, Judge David Hurd utilized strong language to chastise RPI’s use of a double-standard. The court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” The plaintiff presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded (3).

In recent years, mistreatment of both complainants and the accused have resulted in campus disciplinary committees being derided as “Kangaroo Courts.” (5) This week SAVE is launching a new campaign titled “Save Due Process on Campus.” (6) The goal of the campaign is to assure the incoming Biden Administration retains and vigorously enforces the new Title IX due process regulation (7).

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