I recently received the following email from a faculty colleague at the University of Michigan-Flint’s School of Management:

Dear School of Management (SOM) Faculty and Staff,

I am the school’s representative on the Chancellor’s recently established Diversity, Equity and Inclusion (DEI) Committee. We are gathering data on what we do regarding diversity, equity and inclusion activities. Are there activities such as speakers, classroom activities, seminars, community engagement activities, etc. related to diversity, equity or inclusion that you are doing or participating in? Please email me a brief description of any activities you are doing or participating in related to DEI by February 28.

I responded to all SOM faculty and staff members in detail as follows:

I wanted to share with you some of my personal activities related to the issue of Diversity, Equity and Inclusion that might be relevant to the Chancellor’s new Diversity, Equity and Inclusion (DEI) Committee.

Background: The federal civil rights law known as Title IX was passed in 1972 to prohibit sex discrimination in higher education. Subsequently, women advanced so rapidly that they outnumbered men in higher education for college enrollment by 1979 and outnumbered men for earning bachelor’s and master’s degrees by 1982. For the last 40 years, men have been an underrepresented minority in higher education and the gender disparity favoring women has increased steadily over time. Since 1982, the growing “gender degree gap” has resulted in women earning nearly 14 million more college degrees than men (see chart above). Yet women in higher education today including at UM, in violation of Title IX’s prohibition of sex discrimination, continue to receive a hugely disproportionate share of campus resources, funding, fellowships, centers, commissions, awards, and scholarships.

Universities across the country, including the University of Michigan on all three campuses, have routinely and illegally offered single-sex, female-only programs that discriminate against non-female students, staff and faculty in violation of Title IX’s prohibition of sex discrimination. Until recently, universities including the University of Michigan have engaged in illegal sex discrimination with impunity because they have not been challenged and held accountable for violating Title IX. Starting in 2016, I have been on a mission to challenge universities across the country, including the University of Michigan, that violate Title IX, and I have filed more than 100 Title IX complaints with the Department of Education’s Office for Civil Rights. About a dozen of those complaints have been successfully resolved in my favor (including some at UM-Flint) and more than 40 other complaints have resulted in federal investigations of civil rights violations that are ongoing (including a federal investigation of UM), and another 40 complaints or so are currently being reviewed by the Office for Civil Rights. I expect that those cases currently under review will eventually result in federal investigations, and I expect further outcomes in my favor for the cases that are eventually resolved.

One example of a successful outcome from my civil rights advocacy is the following: In 2017, UM-Flint’s College of Arts and Sciences, along with the Provost’s Office and K-12 Partnerships, attempted to launch an illegal, discriminatory, single-sex, girl-only, no boys allowed program called “Girls in Engineering, Math and Science (GEMS)” for middle school girls only. In violation of Title IX’s prohibition of sex discrimination, the GEMS program illegally discriminated against middle school boys, it illegally excluded boys from participating based on their sex, and it illegally denied boys from the educational benefits of this program based on their sex. In addition to violating federal civil rights laws (Title IX), UM-Flint’s GEMS program also violated: a) Michigan civil rights laws, b) the Michigan Constitution as amended by Proposal 2 in 2006, and c) the University of Michigan’s own Nondiscrimination Policy. After I filed civil rights complaints with the Michigan Department of Civil Rights and the Department of Education’s Office for Civil Rights, the Title IX Office in Ann Arbor forced CAS and UM-Flint to convert the GEMS program from an illegal, discriminatory single-sex, girl-only program to a legal co-ed, gender-neutral program open to students of all gender identities. (I also successfully challenged three illegal single-sex, female-only faculty awards at UM-Flint and two illegal minority-only faculty awards, and those five faculty awards are now open to faculty of all genders and all races/colors.) I’m sure that if I hadn’t filed a civil rights complaint, the GEMS program would be operating today as an illegal, discriminatory, single-sex, girl-only, no boys allowed program.

The fact that the illegal, discriminatory UM-Flint GEMS program was initially approved by CAS faculty, CAS department chairs, the CAS Dean’s Office, the Provost’s Office and the Chancellor’s Office demonstrates a lack of awareness on our campus of federal civil rights laws and Title IX’s prohibition of sex discrimination. Any efforts to advance “diversity, equity and inclusion” on our campus should be aware of the history on our campus of non-compliance with federal civil rights laws. Even though we hear about our commitment to “diversity, equity and inclusion,” universities including UM frequently practice the exact opposite: “uniformity, inequity and exclusion” when it comes to illegal single-sex, female-only programs, scholarships, awards, initiatives, camps, clubs, events, etc. like the GEMS program that illegally exclude (or attempted to exclude) non-female students, faculty and/or staff.

Subsequently, based on a Title IX complaint I filed with the Office for Civil Rights, the Department of Education has opened a federal investigation of civil rights violations at the University of Michigan for more than 50 discriminatory programs on all three campuses that potentially violate Title IX’s prohibition of sex discrimination, and that investigation is ongoing. By exposing Title IX violations at more than 100 other universities (including UM), it is my mission to advance civil rights for all persons in higher education and end the hypocritical, double standard for enforcement of sex discrimination that has prevailed for so many decades at colleges and universities in the US.

One way that universities like UM can demonstrate their commitment to “diversity, equity and inclusion” is by demonstrating their commitment to enforcing Title IX’s prohibition of sex discrimination. Too often, universities including UM have not vigorously enforced Title IX as they are legally required to do, or at least they have only selectively enforced Title IX, despite large staffs of diversity officers and staffs (now approaching 100 employees at UM). And since UM has frequently violated its own Nondiscrimination Policy by offering single-sex, female only programs, a renewed commitment to nondiscrimination based on sex might be warranted as part of the DEI Committee.

In addition, if a concern of the DEI Committee is to address the challenges that underrepresented minorities face in higher education, I would suggest that the challenges of men – a significantly underrepresented minority at UM-Flint — be acknowledged and addressed. For example, based on Fall 2019 enrollment at UM-Flint, there are currently 175 female students for every 100 male students. A question for the DEI Committee: What if anything should be done to address the fact that men are a significantly underrepresented minority at UM-Flint?

Thanks for considering some the efforts I am making to advance “civil rights for all” and “Title IX for all” at both UM-Flint and in higher education in general, as we advance our commitment to diversity, equity and inclusion at UM-Flint for all constituencies, hopefully including constituencies that are significantly underrepresented.

MP: I don’t think those are exactly the types of contributions to diversity that UM is looking for… Buy hey, they asked me and I responded!!

Ray Carter, Director, Center for Independent Journalism

Senate Bill 1466, by Sen. Julie Daniels, creates the “Student and Administration Equality Act.” Under the legislation, any college student accused of a violation of the school’s disciplinary or conduct rules that carries a potential penalty of 10 or more days suspension or expulsion “shall have the right to be represented at the student’s expense by a licensed attorney or, if the student prefers, a nonattorney advocate.” Under the proposed law, the student’s attorney “may fully participate during the disciplinary proceeding” and would be allowed “the opportunity to make opening and closing statements, to examine and cross-examine witnesses, and to provide the accuser or accused with support, guidance, and advice.”

“It’s very important that you make sure that anyone accused in these instances has full due process, even though they are not appearing in a court of law but they are essentially appearing before a tribunal,” said Daniels, R-Bartlesville.

Students who bring a complaint against another student would have the same right to attorney representation and participation during a hearing, and colleges would be required to provide advance notice of hearings.

Universities that fail to comply with the proposed law could be sued for compensatory damages, reasonable court costs and attorney fees, monetary damages “of not less than the cost of tuition paid by the student,” plus monetary damages of “not less than the amount of any scholarship funding lost as a result of the institution discipline.”

Some lawmakers appeared skeptical of the need for the legislation.

“Can you cite an example where the problem is here?” asked Sen. J.J. Dossett, D-Owasso. “So if a student gets treated unfairly by the institution, can they not do this already? Is there no way for them to push back right now?”

Daniels noted that although the University of Oklahoma makes public the rules for its disciplinary proceedings, and that “the student can have an advocate or attorney present, that person may not participate in the proceeding. So this is a very big change in my bill.”

“Is this overreaching and making the institutions of higher education comply with the state mandating instead of empowering the Regents to set forth this policy?” asked Sen. Carri Hicks, D-Oklahoma City.

Daniels said the bill does not force colleges to change their policies regarding what actions can result in expulsion, but “simply makes sure that we have a full due process, orderly process, for the accused, the accuser, and the student organization.”

She noted the causes for expulsion range from accusations of infringing on another’s free-speech rights to sexual assault. Daniels said the officials sitting on the tribunal are “going in with some advantage over the student who may have an advisor that doesn’t get to participate in their defense.”

Sen. Gary Stanislawski, R-Tulsa, said the lack of due process in many college hearings can create legal problems for students under investigation that increase the importance of addressing the issue.

“Is it not true that anything that is said in that tribunal, as you called it, anything that is said there—witnesses, testimony—may be used in a court of law in the future?” Stanislawski asked.

“That’s all open record,” Daniels said.

When the Foundation for Individual Rights in Education (FIRE) rated the top 53 universities in the country “based on 10 fundamental elements of due process,” the civil rights organization found “the vast majority of institutions lacked most of the procedural safeguards we looked for in written policies.”

FIRE reported that just 28.3 percent of the universities reviewed “guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.” Only a distinct minority of schools allowed students to have the active participation of an advisor or provided the opportunity for “meaningful” cross-examination.

Oklahoma colleges were not among those reviewed in that report.

Nationally, a growing number of students have successfully sued colleges and universities for violations of due-process rights in disciplinary hearings. In 2018, the U.S. Court of Appeals for the Sixth Circuit sided with a student and ruled against the University of Michigan, declaring that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

SB 1466 passed the Senate Education Committee on a 13-1 vote. Hicks was the only lawmaker to vote in opposition.

State’s lawyer repeatedly gets facts in the record wrong

Last week we reported on a federal judge’s approval of a temporary restraining order against the University of Connecticut for running an alleged sham trial against a student accused of rape.

U.S. District Judge Michael Shea said the taxpayer-funded university deprived the student the opportunity to mount a “meaningful defense.”

The order was released just hours after a telephone status conference with the parties, including lawyers for “John Doe,” UConn and the state – and a newly released transcript shows Shea’s exasperation with the latter two.

Even though John was seeking to change the status quo by returning to his graduating class, and thus would have to make “a clear showing or a substantial likelihood of success,” the judge indicated UConn had basically made his argument for him.

‘Strictly speaking, that added condition was not in the policy’

“I’ll put my cards on the table,” Shea told Mary Kathryn Lenehan of the Attorney General’s Office:

I am troubled by aspects of this procedure, and in particular I think the thing that troubles me the most is the fact that the hearing body refused to hear from four of the plaintiff’s witnesses.

Indeed, UConn had blocked the testimony of other students in the car where “Jane Roe” first allegedly started “grinding” on John’s lap without asking for his consent. That matters because Jane denied “initiating any sexual contact” on John, raising a credibility problem for her other claim that John raped her later that night.

Shea noted that John’s reduced punishment – from expulsion to two-year suspension, assuming UConn agrees to readmit him – does not much change “the potential damage to his career prospects,” raising the due process requirements for his case:

[I]n light of the fact that the critical factual issue is ultimately who to believe … it would appear to me that the four witnesses, I guess I would say especially the two who were accompanying them in the car, really should have been heard from, frankly. …

[T]he suggestion is that at the hearing the victim, the alleged victim, did not bring any witnesses, and yet her roommate and the friend that she was with that evening were interviewed and the investigator relied on their statements so that the plaintiff never had an opportunity to confront those statements in any way. …

[G]iven all the circumstances that I’ve described, why not hear from the four witnesses at the hearing, which was the bulk of the plaintiff’s defense?

When the state’s lawyer Lenehan tried to argue that John’s witnesses had to give in-person witness testimony, Shea cut her off and read from UConn’s own rules, which put no conditions on how witnesses provide their statements.

“Strictly speaking, that added condition was not in the policy. Isn’t that true?” the judge asked. Lenehan had to admit it wasn’t.

Lenehan also came up short when Shea asked her to find evidence in the record for her claim that the investigator gave the student witnesses “the opportunity to submit a written statement or be interviewed or both.”

‘Oh, come on. I thought you were going to be serious about this’

It got worse from there. The state’s lawyer tried to argue the witnesses from the car “grinding” incident were irrelevant to the bedroom incident, and Lenehan appeared to be unaware that Jane had denied grinding on John at all.

Shea countered that claim, and John’s lawyer Michael Thad Allen pointed to the record where Jane made her denial, contradicting the witnesses in the car.

“I mean it would have been appropriate for the investigator to ask her about that” denial, the judge told Lenehan. “Do you not agree?  She again responded that witness statements from the car were irrelevant, because Jane had admitted that she allowed John to touch her in the car.

“[Y]ou’re not answering my question,” Shea interrupted. At that point the state’s lawyer questioned whether “sitting on someone’s lap gyrating” was really “initiating sexual activity.” Allen chimed in that the investigator never bothered to ask Jane “if she initiated sexual contact.”

MORE: Shea halts UConn punishment for second time in a week

The judge put a halt to Lenehan’s evasion when she argued that two of the three car witnesses couldn’t actually see Jane grinding because they were in the front seat:

MS. LENEHAN: [One front seat witness] felt the chair moving.

THE COURT: It was more than that. He felt the knees in the back of the chair, and the roommate in the back said he didn’t even want to look because of what was happening.

MS. LENEHAN: Right, but then how did they have relevant testimony?

THE COURT: Oh, come on. I thought you were going to be serious about this.

Lenehan continued flailing, trying to argue that anything other than directly looking at Jane grinding on John’s lap rendered a witness irrelevant. Shea noted that Jane also denied inviting John “to come back into the car and to go to the dorm. These witnesses would testify to the contrary.”

The judge scolded Lenehan, representing the state of Connecticut, for not having “read the statements a little more carefully, frankly, if you’re going to kind of debate it with me … because you’ve got the facts wrong.”

She eventually agreed to stop debating Shea, and he responded: “Yeah, please don’t.”

Judge scolds UConn for bann… by The College Fix on Scribd

 ‘It wouldn’t have been true cross-examination anyway’

The judge next pressed Lenehan to explain how due process is served when the hearing officers relied on an investigator’s report with testimony from Jane’s witnesses, yet they didn’t show up for the hearing. (They did not observe any interactions with Jane and John, either.)

“And so the plaintiff in this case was never afforded an opportunity to confront what they had to say,” Shea said, noting that “it wouldn’t have been true cross-examination anyway.”

Lenehan could not answer except to say that procedure “has been defined in student discipline cases at university campuses” as comporting with due process. She again could not cite case law, and she conflated cross-examination with third-party questioning.

Shea called her out for the conflation even while noting that his federal appeals court, the 2nd Circuit, has not given universities the green light to deprive cross-examination to accused students facing serious sanctions.

Noting that John’s lawyer pointed to cross-examination as required by the 6th Circuit, the judge said “[m]aybe it is” in Shea’s court as well. “But assuming that the substitute procedure” of indirect questioning would satisfy due process, that did not even happen here, he said:

[G]iven the severity of the sanction here, how is it in compliance with due process that he’s not allowed to question or have somebody question at least statements that were being relied on … by the hearing officers by witnesses who weren’t even present?

Shea emphasized that neither Lenehan nor Nicole Fournier Gelston, UConn’s general counsel, was at the disciplinary hearing, by their own admission. Only John’s lawyer Allen was there.

He told the judge that the hearing panel refused John’s request to ask Jane why her friend would testify that Jane “came down the hall to ask permission” to have sex with John that night.

The panel also drew “no inference … from the fact that none of [Jane’s] friends came to support her” at the hearing, suggesting more credibility problems, Allen said: “Only my client’s witnesses were excluded when they had credible evidence regarding her own credibility.”

Also “disallowed,” the lawyer said: questions about “some sort of statement” that Jane submitted in April and mentioned in the hearing, which has still not been given to John. Allen confirmed to Shea that this April statement might constitute “impeachment material,” conflicting with statements Jane made in September.

‘This is a difficult case. I wasn’t thrilled to get it’

Shea referred to another UConn case he was handling at the same time, also involving due process but not sexual misconduct.

“I’ll be candid with you. This is a difficult case. I wasn’t thrilled to get it, but here I am,” he said. “I seem to be — I have [addressed] two UConn [temporary restraining orders] in the space of six days, so lucky me.”

Both the allegations and the sanction against John are “very serious,” and the judge also has “serious concerns” about whether John received due process at the hearing. He’ll grant the TRO to John, but “it’s a close call.”

Shea warned Allen that the best his client might get from the court is another hearing on John’s Title IX claim, “which we really haven’t talked about,” and which might go against him as well. That would mean “he will have done whatever work in this semester for naught.”

The judge suggested and the parties agreed to meet again at a preliminary injunction hearing Feb. 11-12.

The transcript shows the university’s “disdain for due process rights,” Samantha Harris, vice president of procedural advocacy for the Foundation for Individual Rights in Education, wrote in a blog post highlighting several relevant portions of the transcript.

Allen told Harris he wasn’t surprised by the university’s arguments at the conference, “because this was how they conducted the entire investigation and hearing”:

The person who did seem surprised was the judge, when UConn effectively admitted that their approach was simply to believe the accusing student no matter what the other witnesses had to say.

Read the transcript and Harris’s blog post.

h/t Robby Soave

MORE: Shea stops UConn for punishing students for protected speech

When it started “happening,” meaning that it wasn’t just some crazy conspiracy theory but had metastasized into reality, I wrote about it. For the sake of time frame, this was before Alyssa Milano grabbed onto Tarana Burke’s 2006 coinage of Me Too. This wasn’t an accident, but a decision to elevate unproven accusation into indisputable “truth.” It was a decision that the cost of the “few” false accusations and ruination of innocents was unfortunate, but necessary, collateral damage.

You might also note how critical it is to this scheme that the rape epidemic and false accusations lie be perpetrated. With both of these key beliefs in place, the downside of this extrajudicial and subconstitutional system was small enough that people would overlook its harm, ignore the fact that these cries were entirely unproven and would never be proven. There are no rules of evidence on social media, just as there’s no appeal.

And regardless of where you stand on the underlying issue, it has been a huge success. It has accomplished its goal of circumventing the principles upon which our law was grounded and eviscerating them. But where does it go from here? There remains a problem with the scheme, that as much as they can get men fired or expelled, books burned, movies trashed and art removed from the walls of museums, they still can’t put men in jail without going through the “regular” legal system.

A prosecutor in Maine has the answer.

Victims often hesitate to seek justice because many fear they won’t be believed. Others don’t want to relive the trauma they experienced through lengthy legal proceedings. Sexual assault cases are difficult to prosecute since these crimes often occur in private settings. Aside from personal testimony, investigators often lack solid evidence to build a criminal case.

But District Attorney Natasha Irving says it’s time to reform how the legal system prosecutes sexual assault cases, so victims who come forward know they’ll be supported. Irving says prosecutors shouldn’t decline to prosecute a case just because they “think it’s too hard to prove.”

Reforms prosecutors are all the rage, as activists have smartly realized that District Attorney elections were a weak link in the chain of the system. With very few votes, they could seize these offices, put reformers in place and reinvent the system from the backend to achieve what they have failed to accomplish from the legislative side. Few people cared about District Attorney races outside their friends and family, and they were handed vast power by legislators who thought they would always be handpicked by party leaders and instructed to do the party’s bidding. Give the activists credit for spotting the opportunity and seizing it.

But Natasha Irving’s idea of how of “reform” isn’t to adhere more closely to the Constitution, to assure every accused of due process, or to recognize that the job of a prosecutor isn’t to convict, but to “do justice.” Rather, her “reform” is to arrest and prosecute people against whom there is insufficient evidence to convict.

But that shouldn’t be a primary concern, said Irving who failed to get a conviction in that case after the judge ruled the state had not met the burden of proof beyond a reasonable doubt.

“It didn’t feel good for any of us to lose that case. But I do think personally, I would rather show a victim that we will fight for them, than [rejecting a case] because it’s too hard to prove beyond a reasonable doubt,” Irving said. “We don’t want law enforcement or prosecutors to ever think that something is a ‘he said she said.’”

This isn’t to say that prosecutors should reject any case that isn’t a slam dunk, but to prosecute men based on the litany of rationalizations, as proffered by the “experts” who teach the jury what they’re to believe to be fact, when the evidence at best fails to establish proof beyond a reasonable doubt is a deliberate abuse of power. Ironically, it’s the same abuse complained of by reform prosecutors in any other prosecution not involving an accusation of sexual assault. Go figure.

Irving says it’s time for a “come-to-Jesus-moment” about the realities of sexual assault.

Where #MeToo has enjoyed massive, if mindless, acceptance among the woke, it is now working its way back into the legal system it was created to avoid, only this time based upon the invented belief in its foundational ideologies to overcome its evidentiary failings.

Will it work? First, it doesn’t have to in order to accomplish its goal. As the saying goes, you can beat the rap, but you can’t beat the ride. Men will be arrested and prosecuted, their faces and the accusations against them will appear in the media. They will lose their jobs, their homes, their families and be criminals. Even acquitted, the belief of guilt isn’t dissipated. After all, juries don’t return verdicts of “innocent,” but not guilty. And as the presumption of innocence is reduced to a “legal technicality” rather than a tenet of law, there is no way to overcome the taint.

But second, it may well work. For the reasons detained people plead guilty now, they will plead guilty to sex offenses rather than roll the dice at trial or spend a few years awaiting their chance for vindication.

And third, if the rationalizations, the expert witnesses, the narrative, accomplish what their pushers hope, perhaps juries will convict despite the gross inadequacy of proof. Is it “unfair” that some accusations of sexual assault and rape are hard to prove? Perhaps, but that’s always been the nature of our criminal justice system, that it’s better that ten guilty people go free than one innocent be convicted. There was no exception for sex offenses. Until now.