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Campus investigators wield considerable influence in shaping the evidentiary record on which the fact-finder relies in rendering a determination of innocence or guilt. Current training administered to Title IX investigators focuses on a victim-centered approach that encourages them to “believe the victim.” Such “victim-centered” investigations go by a variety of names, including Start By Believing and “trauma-informed.”  Such approaches may be appropriate for counselors and therapists, but contradicts ethical codes that call for investigators to conduct their work in a neutral and objective manner.

In the case of Start By Believing investigations, a California Task Force recently recommended,

“The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent. Investigators and adjudicators should consider and balance noteworthy inconsistencies (rather than ignoring them altogether)…”

In 2016, SAVE released a report titled, Victim-Centered Investigations: New Liability Risk for Colleges and Universities. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf . The report concluded with this recommendation:

SAVE urges university administrators to take prompt measures to end so-called “victim-centered” investigations at their institutions. Simply put, such approaches are inconsistent with the most basic notions of fairness, repudiate the presumption of innocence, and are likely to lead to wrongful determinations of guilt, thereby increasing schools’ liability exposure.

This recommendation apparently was ignored. As a result, lawsuits alleging flawed campus investigations have continued. This is one example:

In 2014 Matt Rolph, then a student at Hobart College in Geneva, NY, was accused of sexually assaulting his long-time girlfriend, “Jane Roe.” A jury cleared Rolph of all charges. https://13wham.com/news/special-reports/college-discredit-acquitted-of-rape-still-shamed

But the college decided to make an example of Rolph.  So the college hired Erin Beatty, an outside person to conduct the investigation. Even though Beatty claimed to be a “certified Title IX investigator,” in fact there is no formal process for such a certification.

During the course of the investigation, the investigator (1) did not record any interviews; (2) failed to review text messages sent by Roe; (3) did not question Roe’s motive for delaying her report to school officials; (4) failed to obtain documentation supporting Roe’s claim of medical issues after reporting the alleged rape; and (5) did not conduct any follow-up interviews to resolve inconsistencies among witness statements.

Based on the investigator’s report, the school’s disciplinary panel ruled that Rolph violated the school’s sexual misconduct policy and had him expelled.

So Rolph filed a lawsuit. On September 20, 2017, federal judge Elizabeth Wolford ruled in favor Rolph’s claims of investigative bias. https://casetext.com/case/rolph-v-hobart-william-smith-colls

Following is a partial listing of lawsuits alleging biased investigations in which the judge ruled in favor of the accused student. The first section consists of judicial commentaries on the lawsuits. The second section presents cases in which the alleged student alleged that he was a victim of sexual assault, but the investigator failed to consider that allegation.

Judicial Commentaries

In several of the cases, the judge commented specifically on the flawed investigative procedures:

John Doe v. Washington and Lee University — 2015

In the course of the investigation, Ms. Kozak and Mr. Rodocker ultimately interviewed at least nine people. These witnesses included two of Plaintiff’s four recommended witnesses and at least eight witnesses recommended by Jane Doe, although it is unclear from the pleadings if Jane Doe recommended additional individuals who were not interviewed. When Plaintiff questioned why two of his suggested witnesses were not interviewed, Ms. Kozak stated that the interviews would not be necessary, as they already had enough facts. (Pg. 7 – Opinion)

John Doe v. Georgia Board of Regents — 2016

The Student Sexual Misconduct Policy at Georgia Tech does not allow for a hearing and does not allow for any kind of cross-examination, but rather vests all power in one individual who both investigates and adjudicates. The other due process violations alleged by Plaintiff are also arguably more pressing in light of the single investigator/adjudicator model. The inclusion of admittedly extraneous innuendo from witnesses concerning rumors of Plaintiff’s general character and the refusal to interview certain witnesses is potentially more problematic in an investigator/adjudicator model. (Pg. 25-26)…

To put it bluntly, Mr. Paquette’s [Investigator] testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional. (Pg. 37-38)

John Doe v. The Trustees of the University of Pennsylvania — 2017

Specifically, the Complaint alleges that officials who handled Plaintiff’s case were trained with, among other materials, a document called “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators” (“17 Tips”). That document warns against victim blaming; advises of the potential for profound, long-lasting, psychological injury to victims; explains that major trauma to victims may result in fragmented recall, which may result in victims “recount[ing] a sexual assault somewhat differently from one retelling to the next”; warns that a victim’s “flat affect [at a hearing] does not, by itself, show that no assault occurred”; and cites studies suggesting that false accusations of rape are not common.

At the same time, the document advises that the alleged perpetrator may have many “apparent positive attributes such as talent, charm, and maturity” but that these attributes “are generally irrelevant to whether the respondent engaged in nonconsensual sexual activity.” It also warns that a “typical rapist operates within ordinary social conventions to identify and groom victims” and states that “strategically isolating potential victims [] can show the premeditation” commonly exhibited by serial offenders.

In light of these allegations, we conclude that the Complaint plausibly alleges that Defendant breached the contractual requirement that it train Hearing Panel members “to fulfill their responsibilities as adjudicators according to the procedures and policies outlined” in the Disciplinary Procedures and “to ensure compliance with Title IX.” In light of these same allegations, we also conclude that the Complaint plausibly alleges that the investigators were not “appropriately trained as investigators in handling sexual violence cases.”

John Doe vs. Brown University — 2018

[Investigator] Perkins’ assessment that there was insufficient evidence to support [accused student] Doe’s fabrication claim was particularly problematic given that she had refused to ask for evidence that might have proven it so and been exculpatory to Doe. …

The problem here was that Perkins made the initial decision to include the conspiracy claim and corresponding character evidence, but then chose not to complete the evidence-gathering, and went on to say that there was insufficient evidence to support Doe’s fabrication claim. Because of this, her failure to request the text messages between Ann and Witness 9 was a violation of Doe’s right “[t]o be given every opportunity to . . . offer evidence before the hearing body or officer.”

John Doe v. University of Southern California — 2018

But it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them. A charge of “encouraging or permitting others to engage in misconduct” that can penalize completely different behavior based on the decision-maker (SJACS versus the Appeals Panel), without notice to the student, is indeed as standardless as the undefined “gross incompetence” in Wheeler. (Pg. 25)…Requiring John to request access to the evidence against him does not comply with the requirements of a fair hearing. (Pg. 29)

John Doe v. The University of Mississippi, et. al. — 2018

Turning then to Doe’s arguments regarding Ussery, he says her investigation was biased and flawed, that it resulted in an unfair report that was presented to the Judicial Council as the official report of the Title IX Coordinator, and that the panel itself had been trained in a way that prejudiced Doe’s ability to be heard. As to that training, Doe makes the following points: (1) the training material “advises that a ‘lack of protest or resistance does not constitute consent, nor does silence,’” (2) it “advise[s] the panel members that ‘victims’ sometimes withhold facts and lie about details, question if they’ve truly been victimized, and ‘lie about anything that casts doubt on their account of the event,’” and (3) it explains that “when Complainants withhold exculpatory details or lie to an investigator or the hearing panel, the lies should be considered a side effect of an assault.”

This is a he-said/she-said case, yet there seems to have been an assumption under Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered.

It is therefore plausible that the scales were tipped against Doe to such a degree that further procedural safeguards may have lessened the risk of an erroneous deprivation.

Andrew Doe v. The University of Mississippi, et. al. — 2019

Turning then to Doe’s arguments regarding Title IX Coordinator, he says her investigation was flawed because the panel itself had been trained in a way that prejudiced Doe’s ability to be heard.

As to the training, Doe makes the following points: (1) the training material “provides that just because an individual does not protest or resist sexual activity their silence and lack of resistance does not constitute consent,” (2) it “provides that when both parties are intoxicated, findings are to be made in favor of the complainant, who is typically female,” and (3) the materials “advise the panel members that ‘victims’ sometimes withhold facts and lie about details, question if they’ve truly been victimized[,] and ‘lie about anything that casts doubt on their account of the event.’”

Taken as a whole, the Court concludes that Doe has stated a plausible claim. This is a consent-based case in which the victim did not appear before the hearing panel, yet there seems to have been an assumption under Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered. Coupled with the alleged deficiencies in the investigation, it is plausible that the scales were tipped against Doe to a degree that further procedural safeguards may have lessened the risk of an erroneous deprivation.

When the Accused Student Allegedly is the True Victim of the Sexual Assault

In several lawsuits filed by male accused students, institutions failed to investigate evidence developed during the course of the institution’s own investigation that the accused student was a victim of sexual misconduct according to school policies: Rollins College (2017 and 2019), Miami University, Amherst College, Williams College, and Drake University.

Two of these cases are described below:

Amherst College – 2017

In Amherst, the male plaintiff (Doe) had been incapacitated when the female complainant gave him oral sex. However, the school found the male student responsible for sexual assault. It was not until the accused filed his lawsuit that discovery revealed text message that proved his claim that he was the victim.

The plaintiff in Amherst asserted several causes of action, including that the school had violated Title IX based on selective enforcement and deliberate indifference:

In order to prevail on a selective enforcement claim, Doe was required to to establish that his gender was a “motivating factor behind either the College’s decision to pursue disciplinary action . . . or its decision as to the severity of punishment . . .” The Court found that the accused student plaintiff  had met his burden on this claim, because he had alleged that Amherst encouraged the female complainant to file her complaint but did not do the same for him. Amherst did not even investigate his allegations despite his repeated allegations that he had had been “blacked out” when the female complainant initiated sexual activity with him.

The plaintiff’s deliberate Indifference claim required him to show that Amherst was deliberately indifferent when handling his sexual harassment claim. The court found the male student had met this burden after he asserted that the female complainant initiated sexual activity with him while he was incapacitated. According the Court, “the College did not take even minimal steps to determine whether [the plaintiff] should have been viewed as a victim under the terms of the policy.”

Rollins College – 2019

On January 16, 2019 U.S. District Court Judge Roy Dalton allowed a lawsuit against Rollins College – the second against the institution within two years — to move forward under the theories of breach-of-contract and selective enforcement.

According to the male accused student, his female accuser had taken advantage of him sexually while he was inebriated. During its investigation, the college ignored evidence in favor of the male and overlooked contradictions in the woman’s testimony.

The judge determined that the complaint raised the possibility that Rollins had effectively discriminated against the male student by: rejecting testimony from his witnesses “based, in part, on the male witnesses’ fraternity associations,” while allowing testimony from his accuser’s sorority witnesses; “excus[ing] any inconsistencies” in her testimony concerning whether she had “verbalized consent;” and made “irrelevant, inflammatory, and conclusory statements” about the accused. Rollins College prejudged the male accused student as guilty in order “to protect its image,” according to Judge Dalton.

Self-styled criminal justice reformers peddle false claims that racism is prevalent in every aspect of the criminal justice system, and that it is biased against women. The reality is that it is heavily biased in favor of women, not against them: There is a massive, statistically significant gender bias in favor of female defendants compared to similarly-situated male defendants. And while there are certainly instances of discrimination against black people in areas like traffic stops, studies that allege statistically significant racial bias in criminal sentencing typically contain obvious flaws that raise questions not just about their methodology, but the good faith of their authors. Such studies seem designed to reach a pre-determined conclusion, in ignoring relevant variables (such as prior convictions), or treating offenses of very different severity as if they were similar offenses.

I say this as someone who has read innumerable studies about the role of race and gender in the criminal justice system, and has the expertise to assess such studies. I took graduate and undergraduate level statistics courses at the University of Virginia before attending Harvard Law School. And unlike many liberal-arts majors who write about “criminal justice reform,” but don’t understand what statistics actually mean, I am comfortable with math and statistics: I earned A’s in college classes in statistics, econometrics, calculus, and differential equations. I also worked briefly for the Bureau of Labor Statistics.

Women have a massive advantage in the criminal justice system. As the University of Michigan noted in November 2012, “If you’re a criminal defendant, it may help a lot to be a woman…Prof. [Sonja] Starr’s recent paper, ‘Estimating Gender Disparities in Federal Criminal Cases,’ looks closely at a large dataset of federal cases, and reveals some significant findings. After controlling for the arrest offense, criminal history, and other prior characteristics, ‘men receive 63% longer sentences on average than women do,’ and ‘[w]omen are twice as likely to avoid incarceration if convicted.’” (See Sonja B. Starr, “Estimating Gender Disparities in Federal Criminal Cases,” 17 American Law & Econ. Rev. 127 (2015)).

Yet, newspapers and TV almost never mention these studies showing gender bias against males. Instead, they constantly tout false claims that racial disparities in the criminal justice system are all due to racism, rather than the higher black crime rate. The New York Times, for example, glowingly featured on the front page of its web site the claim by Dr. Ibrahim X. Kendi that “when I see racial disparities, I see racism.” It did so even the claim that racism causes all racial disparities is manifestly contrary to reality. Federal courts have recognized that higher black rates of being arrested, convicted, or suspended from school can simply reflect a higher black crime or misbehavior rate. As the Fourth Circuit Court of Appeals put it,  a “disparity” in the school suspension rate does not “constitute discrimination.” (See Belk v. Charlotte Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001)).

Similarly, the U.S. Supreme Court rejected a bias claim based on the higher black arrest rate in 1996, noting in its 8-to-1 ruling that there is no legal “presumption that people of all races commit all types of crimes” at the same rate. Such a presumption is “contradicted by” real world data, it observed. For example, “more than 90% of” convicted cocaine traffickers “were black” in 1994, while “93.4% of convicted LSD dealers were white.” (See United States v. Armstrong, 517 U.S. 456 (1996)). Neither of these percentages tracks the percentages of whites and blacks in the general population, and racial bias obviously did not cause the disproportionately high arrest rate of whites for LSD trafficking, given the fact that cops themselves were mostly white. Thus, racial disproportionality obviously reflects differential crime rates

Similarly, a 1991 RAND Corporation study of adult robbery and burglary defendants in 14 large U.S. cities found that a defendant’s race or ethnic group bore almost no relation to conviction rates, sentencing severity, or other key measures. In 1994, federal government statistician Patrick A. Langan analyzed data on 42,500 defendants in the nation’s 75 largest counties and found “no evidence that, in the places where blacks in the United States have most of their contacts with the justice system, that system treats them more harshly than whites.” As he noted, “No Racism in the Justice System,” “Many studies have been conducted that show no bias in the arrest, prosecution, adjudication, and sentencing of blacks,” while “other studies show possible evidence of bias.” 

Similarly, the fact that African-Americans are convicted and incarcerated at a higher rate than whites is primarily due to the higher black crime rate, and victim reporting of such crimes when they occur, not police racism. Crime is heavily black-on-black, and black victims of violence crimes disproportionately identify their assailant as black. As the Bureau of Justice Statistics explains, most crimes are committed mostly between members of the same racial group, and this is true for “rape or sexual assault,” “simple assault,” “aggravated assault,” and indeed, “all types of violent crime except robbery,” which is disproportionately committed by blacks against non-blacks. (See Race and Hispanic Origin of Victims and Offenders, 2012-2015). Similarly, PolitiFact noted that between 2010 and 2013, “92 percent of blacks who were murdered were killed by other blacks.”

Higher black arrest rates are due to victims (disproportionately black) identifying their assailant as black. As City Journal notes, “The victims of violent crime in New York City identify their assailants as black 62 percent of the time. Blacks, in other words, are committing a disproportionate amount of violent crime compared to their representation in the population — and that’s according to the victims themselves.” No one has ever explained why black victims would fabricate crimes by blacks, rather than whites. For example, 43.7% of all rapists in state prisons were black, according to a 1997 report by the Bureau of Justice Statistics, even though blacks are only 13% of the general population. [See Lawrence A. Greenfeld, Statistician, Bureau of Justice Statistics, Sex Offenses and Offenders (Feb. 1997) (NCJ-163392)]. As a lawyer noted in 2017, “The people they raped were disproportionately other black people who reported the offense, eliminating racial bias as a factor in reporting.”

Trying to eliminate this racial “disparity,” as Dr. Kendi seeks to do, could lead to unconstitutional racial quotas. Demanding equalization of punishment rates is an unconstitutional racial quota. For example, a federal appeals court unanimously struck down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code.” As the court noted, this simply ignored students’ actual conduct, and the fact that “important disciplinary criteria (such as disrupting classes) are unavoidably judgmental and hence ‘subjective.’” As the court explained, “Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements. And they incidentally are inconsistent with” the requirement “that discipline be administered without regard to race or ethnicity.” (See People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)).

Watering down punishment disproportionately harms innocent African-Americans, because so much crime and violence are black-on-black. After suspensions were curbed in a large urban school system, the Manhattan Institute’s Max Eden found that “schools where more than 90% of students were minorities experienced the worst” effects on school climate and safety. Indeed, the harm from curbing suspensions had “a disparate impact by race and socioeconomic status.” Max Eden noted in the New York Post that another “study by a University of Georgia professor found that efforts to decrease the racial-suspension gap actually increase the racial achievement gap.” Joshua Kinsler found that “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

As noted above, I have read many studies about the role of racial bias in the criminal justice system. I did so with an open mind; indeed, I was eager to find evidence of such bias, if it existed.

Why did I begin doing so? I was representing a black student being sued under the Violence Against Women Act, which was passed based partly on the (false) premise that the criminal justice system discriminates against women. I wanted to find evidence that other groups, not just women, were being discriminated against, so that if the courts let the federal government federalize violence against women, it would set a precedent that the federal government could federalize violence against a vast array of other groups, such as racial minorities.

But I couldn’t find the proof of systemic racism I was seeking, because it didn’t exist. What I found was that many studies rejected claims of systemic racism, while others, which purported to find such racism, had serious flaws, such as omitting, or failing to properly take into account, major variables, which would prevent them from even being admissible evidence of discrimination under the Supreme Court’s decision in Bazemore v. Friday, 478 U.S. 385 (1986) and court rulings like Smith v. VCU, 84 F.3d 672 (4th Cir. 1996) and People Who Care v. Rockford Board of Education, 111 F.3d 528, 537 (7th Cir. 1997) (rejecting racial achievement gap study that accounted for being poor but not degree of poverty)).

Some racism in the criminal justice system does indeed exist, even if it does not pervade the justice system as a whole. Conservative African-Americans like Jason Riley of the Manhattan Institute, and Senator Tim Scott (R-SC), describe repeated unnecessary traffic stops by cops that a white person would less likely have been subjected to. Recent research indicates that the bar for searching black motorists is sometimes lower than for white motorists, and statistically-significant levels of racial bias have been detected in police stops. Cops seem to be using people’s race as a proxy for whether they may be up to no good. I hope that such discriminatory practices will someday end.

But such practices shed little light on other areas like criminal sentencing. People are much more likely to use race as a proxy in low-stakes, rapid decisionmaking based on hunches, such as police stops or stop-and-frisk searches (where a cop may know little about the person being searched other than their race), than in more serious, individualized decisions like criminal sentencing (which requires much more evidence, leaving fewer gaps to be filled by hunches, such as subconscious racial bias, and allows more time for careful thinking before action).

Arrests are also less likely to be influenced by race, because they legally cannot be based on just a vague hunch, and commonly occur after a victim identifies the specific perpetrator (leaving no room for the use of race as a proxy). Arrests and convictions are generally legitimate, and not tainted by racism.

Bias simply does not operate the same way in low-stakes, impersonal situations (where superficial characteristics are often used as a proxy) as in high-stakes, more individualized decisionmaking, where race or other superficial characteristics are much less likely to be used as a proxy. For example, a person who is biased against people who have visible tattoos may avoid sitting next to strangers wearing tattoos on the bus, but probably won’t refuse to hire someone solely because they have a tattoo, if their resume also shows that they have all the needed qualifications to fill a long-vacant position.

SUGGESTED LANGUAGE FOR ADDRESSING RETALIATION CLAIMS

Docket No. ED-2018-OCR-0064, RIN 1870–AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

Comment submitted to the Department of Education by Stop Abusive and Violent Environments (SAVE)

A number of comments in response to this proposed regulation have suggested adding a provision dealing with retaliation, even though the U.S. Supreme Court has already created protections for victims of retaliation in its decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).

If the Education Department does address retaliation in this regulation, it should include well-established limits on retaliation claims that exist even under statutes that have very broad bans on retaliation, such as Title VII of the Civil Rights Act.

For example, it should make clear that a complaint is not protected against retaliation if it is not “reasonable” and made in “good faith.” The Supreme Court ruled unanimously that at a minimum, unreasonable complaints are not protected, in Clark County School District v. Breeden, 532 U.S. 268, 270 (2001). The Court ruled that because no reasonable person would have thought the conduct complained of in that case was illegal sexual harassment, it was not protected against retaliation. The court left open the possibility that conduct must actually be unlawful before a complaint about it is protected, but decided the case based on the fact that, at a minimum, the complaint at least needed to be reasonable and in good faith in asserting unlawful discrimination, and concluded that the complaint was not reasonable in the case before it, because the complainant could not reasonably have believed that the conduct she complained of amounted to illegal sexual harassment.[1]

Title IX’s language does not even mention retaliation, and as a result, retaliation against a complainant is only banned by Title IX if the complaint is about actual discrimination, not just what is perceived (reasonably or unreasonably) to be discrimination. That is because Title IX lacks a separate provision banning retaliation, and thus logically bans retaliation only when the retaliation itself is discriminatory, in having “perpetuated” actual discrimination, as opposed to perceived discrimination.[2]

Even if a reasonable, good faith belief did suffice to protect a complaint of discrimination against retaliation, that protection should not protect people who lie about sexual harassment or assault. Lying is not protected against retaliation even under the broad, specific statutory provision against workplace retaliation contained in Title VII. Federal appeals court rulings have repeatedly made that clear.[3]

Restrictions on bad-faith and unreasonable retaliation claims are needed to protect the free-speech rights of accused people, and their ability to publicly defend themselves against baseless charges. Being subjected to a lengthy investigation based on discrimination or harassment charges can chill the free speech of the target in ways that violates freedom of speech.[4]

Indeed, such charges can themselves be harassment, especially when they are unreasonable or in bad faith. For example, Professor Laura Kipnis was accused of retaliation merely because she defended herself on twitter against charges that she had committed sexual harassment against students on her Illinois campus merely by writing an essay on “sexual paranoia” in the Chronicle of Higher Education, which is published in Washington, hundreds of miles away from her college.[5]

Professor Kipnis was first accused of sexual harassment over her essay in Chronicle of Higher Education, even though any sensible person would realize it was neither severe nor pervasive enough to affect the complainants’ access to an education or create a hostile environment for them.[6]

Then, she was accused of retaliation for defending herself on twitter, even though her tweet likewise had no effect on the complainants’ access to an education, nor did it cause them any tangible harm.

In short, retaliation charges were used to harass Professor Kipnis and retaliate against her for her own academic expression.

Expansive interpretations of retaliation like those employed against Professor Kipnis unacceptably chill speech and academic debate. Retaliation provisions should not be interpreted in ways that create free-speech or free-association problems.[7]

Even a retaliatory motive does not divest otherwise protected speech or petitioning activity of its protection.[8]

So, if the Education Department does add a provision banning “retaliation” in its final regulation, it should incorporate limits on what retaliation is, to protect free speech, and respect longstanding limits on the concept of “retaliation.”

For example, the retaliation provision could read:

“No recipient shall retaliate against any student or employee who complains of discrimination made unlawful by Title IX. A complaint is not protected if it is not in good faith. Nor is it protected if the complaint is not based on a reasonable belief that a Title IX violation has occurred. Conduct in response to a complaint rises to the level of retaliation only when: (a) the recipient terminates, suspends, expels, or demotes the complainant, or reduces the complainant’s pay, because of the complaint; or (b) an employee of the recipient, because of the complaint, denies the complainant an aid or service of the recipient, or subjects the complainant to conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person access to the recipient’s education program or activity, or amounts to constructive discharge.”

[1] See Id. at 270.

[2] See Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (Title IX does not mention retaliation, but it is illegal to engage in retaliation against those who oppose discrimination because when that occurs, it has “perpetuated” such discrimination, and thus itself involves “intentional discrimination”).

[3] See, e.g., Vasconcelos v. Meese, 907 F.2d 11 (9th Cir. 1990) (lie about sexual harassment was not protected against retaliation); EEOC v. Total System Services, 221 F.3d 1171 (11th Cir. 2000) (complaint about sexual harassment that employer concluded was a lie was not protected against retaliation).

[4] See White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (eight-month investigation of speakers after they were accused of civil-rights violations over their speech violated the First Amendment, even though their speech allegedly violated the Fair Housing Act by delaying the provision of housing to minorities).

[5] See, e.g., Jessica Gavora, “How Title IX became a political weapon,” Wall Street Journal, June 8, 2015, at A13; Hans Bader, “A Never-Ending Title IX Investigation,” CNS News, Sept. 25, 2017 (available on the Internet).

[6] See DeAngelis v. El Paso Municipal Police Officer’s Association, 51 F.3d 591 (5th Cir. 1995) (several sexist articles in an employee newsletter were not severe or pervasive enough for harassment liability).

[7] See Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (rejecting harassment victim’s retaliation claim based on workplace tensions following her complaint, and citing freedom of association); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U. S. 568, 574-575 (1988) (rejecting agency’s expansive interpretation of statute because it would raise possible First Amendment problems); Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997) (state law’s broad retaliation ban could not be applied to mayor’s criticism of harassment charge against him, to newspaper, because retaliation bans are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech”).

[8] See BE&K Construction Co v. NLRB, 536 U.S. 516 (2002) (First Amendment freedom of petition protected employer’s non-baseless lawsuit against complainant even if it had a retaliatory motive).

Source: http://www.ivc.edu/policies/titleix/Documents/Recommendations-from-Post-SB-169-Working-Group.pdf

Members of the Post SB 169 Working Group:
Wendy Brown, Class of 1936 First Chair, Political Science, UC Berkeley
Justice Carlos R. Moreno (Ret.)
Lara Stemple, Assistant Dean, UCLA School of Law

November 14, 2018

Introduction
The following represents the consensus reached by the working group appointed by Gov. Jerry
Brown following his veto of SB 169. It makes recommendations concerning how best to address
allegations of student sexual misconduct on college and university campuses in California.
To inform our analysis, we reviewed current state law, current and prior federal guidance,
recommendations made by the American Bar Association, and published commentary by legal
scholars and others.

These recommendations specifically pertain to sexual misconduct allegations between student
parties. We note that many of the due process protections mentioned below would also be
relevant when allegations include staff or faculty parties, but such an expansion of these
recommendations would require the additional consideration of numerous factors.

Type of conduct
Policies should focus on sexual misconduct, which includes both “sexual assault” and “sexual
harassment.”

Standard of proof
Assuming that all other requirements for fairness and due process are met, campuses may use
a preponderance of the evidence standard when adjudicating sexual misconduct allegations.2
Preponderance of the evidence means that the conclusion is supported by evidence that is
persuasive, relevant, and substantial (we reject the trope that preponderance can mean 50
percent likely to have occurred “plus a feather”).3 Moreover, this standard is adequate only
when procedures are transparent and fair, as outlined in more detail below.

Confidentiality in process
While the identities of the parties directly involved (complainant, respondent, and witnesses)
must be disclosed to one another to ensure basic fairness,4 no party’s identity should be
revealed to staff/faculty not involved in the process, the wider student body, or to the public by
any of the offices or officials involved with the process. 5 Some state and federal laws concerned
with protection of confidentiality in the context of freedom of information may apply.6

Investigator independence
The “single-investigator model,” lacking separation between investigator and adjudicator(s),
rarely meets due process requirements. The investigator may or may not be the campus Title IX
Officer. However, the investigation and adjudication must feature distinct persons and
processes.7 We note that some schools have developed robust evidentiary hearing procedures
that may have sufficient due process protections.8
Investigator obligation
The Title IX Officer, or delegated investigator, must fully and impartially investigate all sides in a
complaint.9 During the investigation, the Title IX Office must strive to be impartial and must not
serve as an advocate on behalf of one party. 10 The Title IX Office should provide both
complainants and respondents with information about other campus resources where support
may be available, including but not limited to confidential counseling.11

Process: report, finding and outcome
If both parties agree that the facts in the report are correct (including a balanced notation of
facts in dispute, if any) 12 and accept the investigator’s finding that misconduct did or did not
occur, then a sanction, if warranted,13 may be issued at this point, preferably by an office other
than the Title IX Office. 14 If the sanction is accepted by both parties, the case is concluded. If the
facts, finding of responsibility, or the sanction is disputed, a hearing may be requested by either
party. 15

Status of the investigator’s report in the hearing
If facts in the report are under dispute, the report, while available for consideration during the
hearing, should not be given presumptive weight. If the facts in the report are not under
dispute, the investigator’s report may stand, and the hearing need not repeat the process of
learning the facts from the parties or witnesses.16

Live hearings
The live hearing must allow parties to provide and hear testimony in real time. However, in
circumstances in which complainants do not wish to interact with respondents directly,
campuses must make reasonable accommodations such that parties can avoid direct face-toface interaction while participating in the live hearing. 17 In such circumstances the use of
accessible video technology or other devices should be employed to assist the parties and factfinders in assessing witness credibility.18

Direct questioning and cross-examination
In a live hearing, there should be no direct questioning of any one party by another party.19
However, a party, or a party’s intermediary, is entitled to question the other party by submitting questions to the adjudicator, who shall have discretion to determine the appropriateness and relevance of any question.20

Right to counsel
Both parties should have the right to an advisor of their choice, including an attorney.21 Schools
should not allow advisors to directly intervene in meetings or proceedings, but the advisor
should be able to communicate questions and concerns to the party he/she represents in
writing or through private consultation during the proceedings. Both parties should also have
the right to bring a non-participating support person (e.g., a friend or a counselor) to
proceedings.

22
Discussion of the complainant’s sexual history
The presentation of evidence about either party’s sexual history is generally prohibited. Sexual
histories concerning outside parties are wholly irrelevant and potentially prejudicial. Evidence
referencing the parties’ sexual history with one another is prohibited unless it provides material
evidence on a disputed issue of relevance to the misconduct charge or defense against it.
Further, investigators and adjudicators must recognize that the mere fact of a current or
previous consensual dating or sexual relationship between the two parties does not itself imply
consent or preclude a finding of sexual misconduct. 23

Trauma-informed responses by investigators and adjudicators

“Trauma-informed” approaches have different meanings in different contexts.24 Traumainformed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a trauma-informed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to
evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of
complainants in a manner that is incompatible with due process protections for the
respondent. Investigators and adjudicators should consider and balance noteworthy
inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and
memory that are well grounded in current scientific findings.

Informing parties of allegations, case status, evidence gathered, and outcome
Schools should provide respondents with prompt, detailed, written notice of the allegations
against them.25 The respondent and the complainant should have equal access to information26
and should be given the opportunity to respond at designated intervals. 27

Once an allegation has been made, the school should prepare an investigation report.28 Once
prepared, the school should give notice to both parties contemporaneously of the availability of
the report.29 The report must contain a list of the evidence gathered during the course of the
investigation.30 Both parties must have a reasonable opportunity to review the report and
respond, in a statement, to any perceived errors of fact or interpretation in the report prior to a
finding of responsibility. 31

Final appeal process
Both parties have the right to appeal the outcome.32 No live hearing is required for the appeal.
A majority of an impartial, three-member panel (at a minimum) must decide the appeal.
Grounds for appeal should be limited to the following:
33
 New information not known or available at the time of the investigation has become
known or available
 Procedural error materially affected the findings of fact (for example, improper
exclusion or inclusion of evidence)
 The sanction imposed is disproportionate to the findings in the case (that is, too lenient
or too severe)
 The conduct as found by the decision-maker does not violate school policy
 Evidence of biased decision-making
Interim measures

Prior to findings from an investigation or determination through adjudication, interim
restrictive measures concerning housing and campus access may be implemented by the Title
IX Office to protect the interests of the parties. 34 Efforts should be made to keep these
measures reasonable and as minimally disruptive for both parties as possible. Upon a finding of
non-responsibility on the part of the respondent, interim measures and restrictions must be
lifted immediately. Minimal no-contact orders (no socializing, talking, texting, etc.) may remain
in place.

Mandatory reporting to Title IX Office
Many schools have instituted “responsible employee” reporting requirements for faculty
and/or staff. 35 We wish to note the drawbacks to designating faculty as such, including the
disempowerment of victims to decide for themselves whether to report to the Title IX Office. In
addition, it can negate faculty members’ ability to openly counsel and listen to students and
colleagues, free from an obligation to act against the victim’s wishes. Even sensitive class
discussions during which students may disclose past victimization can trigger this reporting
obligation, which runs counter to the free and open exchange of ideas in the classroom.

Anonymous reporting
Under California SB 967, schools are required to implement “procedures for confidential
reporting by victims and third parties.” Accepting such reports may be helpful for identifying
patterns and understanding risks that exist for the campus. 36 However, identities must be
disclosed upon the beginning of an investigation that could result in sanctions against the
respondent.37

Data collection beyond Title IX recordkeeping

The reports made to Title IX offices reflect only a subset of sexual misconduct incidents on
campus. The majority of incidents go unreported. Therefore, campuses should support and
undertake qualitative and quantitative research to understand the nature and prevalence of
sexual victimization on campus and how to prevent it. Columbia University, UC Berkeley, and
others have begun such undertakings, and campuses should be encouraged to follow suit.

Collecting demographic data from parties
Campuses should collect anonymous data on the characteristics of parties to identify patterns
and systemic problems related to sexual victimization.38 An optional, confidential exit survey
about the parties’ demographic characteristics would avoid posing questions that might seem
intrusive or irrelevant if asked during initial intake or investigative processes.
Such data should be used to analyze whether use of the Title IX process suggests bias against
complainants or respondents in relation to race, sex, sexual orientation, gender identity,
disability, nationality, or other status. Where relevant, schools may wish to also track parties’
involvement in athletics, membership in the Greek system, whether the parties are
international students, and other factors in order to shed light on the problem.

Alternative models of conflict resolution: voluntary mediation versus restorative justice
Voluntary mediation is not recommended as an alternative model of conflict resolution in cases
of sexual misconduct.39 However, restorative justice practices may be appropriate as a
response to a finding of sexual misconduct, if all parties agree to them. If restorative justice
practices are recommended or requested, parties should be informed about them, how they
operate, and what each party’s role will be. Schools may limit the option of restorative justice
approaches in cases of severe abuse in order to ensure campus-wide safety.

A public health approach to prevention
While fairness in reporting and adjudicatory processes are essential to all parties involved,
these processes take place only after an incident has been reported. We wish to emphasize that
prevention efforts, if meaningfully executed, have the potential to reduce the number of
incidents occurring in the first place. A comprehensive public health approach, which seeks to
inform populations and ensure that community conditions are conducive to safety and wellbeing, seems particularly apt for addressing many forms of sexual misconduct, and should serve as a vital counterpart to punitive approaches to the problem. Moreover, life skills concerning consent, communication, and boundaries are particularly important for young, newly
independent students to learn.

M. Scott Brauer for The Chronicle
R. Shep Melnick

The Education Department’s Office for Civil Rights has expanded Title IX’s reach far beyond its original purpose. At least, that’s how R. Shep Melnick sees it.

In his latest book, The Transformation of Title IX (Brookings Institution Press), Melnick, a professor of American politics at Boston College, argues that civil-rights officials — with the help of activists and federal judges — have wielded the gender-equity law to try to upend gender stereotypes, define sexual harassment in an overly broad way, and force institutions to adopt a particular view of gender identity.

The federal government has issued regulations under Title IX only once, in 1975. Doing so requires going through a public-­comment process and multiple stages of revision. Officials have instead opted to put out guidance documents that, as they tell it, simply clarify existing law and regulation, Melnick says.

Yet the guidance has imposed heaps of new restrictions on colleges, he says: “They’re making up completely new rules.” And administrators heeded the government’s demands, he says, because colleges’ federal funding was on the line.

Melnick spends much of the book criticizing how Title IX has been applied to sexual misconduct and athletics. He also singles out the Obama administration’s guidance on transgender students, which required schools and colleges to allow students to use the sex-segregated facilities, like bathrooms and locker rooms, that corresponded with their gender identity. (The Trump administration has withdrawn that guidance.)

“This is a level of silliness that is not appropriate for a problem that is this serious.”

Trump’s Education Department just wrapped up a public-­comment period on its newly proposed Title IX regulations, which include promising changes, Melnick says. Yet he thinks the compliance organizations that have sprung up around Title IX on campuses are here to stay, regardless of what the final rules look like.

Melnick spoke with The Chronicle about why the government’s approach to Title IX enforcement needs to change, masculinity, and the shortcomings of prevention training.

Are you suggesting that Title IX has outlived its usefulness in the context of higher education?

Absolutely not. There are still instances where there is discrimination against women. There might be some instances where there is discrimination against men. I see no reason to think that we should change our position on the basics of the statute. The real question is whether the way it was interpreted on sexual harassment and gender issues, and to some extent on athletics, went so far beyond the intent and the clear statement in the law that some of those regulations need to be changed.

So you’re criticizing how Title IX has evolved. At the same time, this is a law primarily about women and education. That has a lot of societal and cultural undertones that have shifted over time. Sexual harassment wasn’t even a common term in the 1970s. How can the law not evolve?

When it comes to the original purpose of stopping discrimination and access to programs, that was crucial. That was effective. When it came to reducing discrimination in employment for women, which we forget was really horrible as late as the late 1960s and early 1970s — that was very important. I also agree with the emphasis upon providing more athletic opportunities for girls and women in sports.

A New Approach to Enforcement on Campus Sex Assault

This collection of Chronicle articles explores what a shift in enforcement of the gender-equity law known as Title IX might mean for sexual-assault survivors, accused students, and colleges.

• What Does Higher Ed Have to Say About the Proposed Title IX Rules?
• The Fight Over Title IX Has Reached the Comments Section. Here’s What People Are Saying. PREMIUM
• What You Need to Know About the Proposed Title IX Regulations

There’s no doubt in my mind that sexual harassment can be an impediment to women’s education. The big question is, how do we define it? How granular does the federal government try to get in defining what it is? And what are the protections that we use when we have disciplinary and investigatory exercises? It really comes down much more to the extent and detail and purpose of the regulation, rather than whether Title IX covers these important matters.

You told NBC News last month, “A lot of the things we put in place to say, ‘We really have to help women feel more comfortable and more secure’ — the rationale for some of those things has disappeared.” Can you explain that?

When Title IX was created, in 1972, the proportion of women in higher education was much different than it is today. Undergraduates were a little over 40 percent women in the 1960s and early 1970s, and 60 percent men. Now those numbers are flipped. The enrollment in medical schools now is more than 50 percent female.

I graduated from college in 1973, and I find the impediments to women at that time shocking. But that has changed dramatically. We need to take account of that. One problem we’re facing right now is that men are really falling behind. I don’t think that’s the fault of educational institutions, but the nature of the problem certainly has changed.

The fact that men are falling behind in educational attainment — is that something you’d like to see the Office for Civil Rights addressing?

I’m hesitant to say that is something they should take on. If there are instances where there are important opportunities that are made available to women and not to men, then that bears investigation. I’m not willing to say, as some people have, that anything that is female-only is contrary to Title IX. If we have programs that encourage more women to do coding, to be involved in science, technology, engineering, and math, universities should have the discretion to do that.

I’d like to see programs that encourage men to go into fields that are almost entirely female, like psychology, social work, ­elementary- and secondary-school teaching. This is an area where universities and schools need to pay attention. I’d rather not have people at the Education Department telling them how to do it.

So how would that kind of a system be regulated?

I can’t come up with an exact formula. The problems facing male students, like the ones that face female students now, are pretty subtle. It’s not so much discrimination by institutions that’s holding them back. It’s cultural forces. It’s the fact that boys mature later. A variety of things that are not very susceptible to regulation.

If it’s not government agencies running the show, who makes the rules?

The first line of responsibility lies with the universities themselves. They’ve really got to buy into the rules that they establish, because they are the ones that are going to be enforcing them. On sexual-harassment matters, the role that the federal courts have played has been relatively thoughtful. They were the first to say that sexual harassment is a form of sex discrimination, and they established pretty reasonable liability rules to deal with the problem. That was true in the employment context as well.

Where I start to be critical of the Office for Civil Rights is the way in which they simply broke ranks with the courts and took a much more directive approach. I have very few good things to say about the Trump administration. But in this area, they are trying to put federal regulations in line with court decisions so that we will have a clearer set of rules and avoid some of the excesses of the Obama era.

You take issue with the prevention training that federal regulations now require colleges to do.

We don’t have a very good idea of what happens in these trainings because a lot of schools just don’t explain what their training is. There’s some evidence that the training is not about rules of proper behavior, but is an attack on understandings of masculinity that goes well beyond what would be necessary to explain to people what behavior is appropriate and what is not. What I’d like to see is more transparency about what is being taught, rather than giving a blank check to people within Title IX offices to basically take over some of the teaching role of universities.

I imagine you went through Title IX training. What was your experience like?

I went through two training sessions online. Some of the stuff was probably worth mentioning but should be obvious. But also, it really exaggerated what the law prohibits, often in very silly ways. Part of the training was: Here are eight things in a professor’s office that are discriminatory, name them. It was kind of like “Where’s Waldo?” One of them was a picture of your wife in a bathing suit. Another was an antiwar poster, because that discriminates against veterans. This is a level of silliness that is not appropriate for a problem that is this serious.

Do you think the idea of women being mistreated on campuses is overblown?

Do I think that female students on campus very often have to put up with annoying statements, subtle put-downs, and other offensive things? Yeah, I’m sure they do. Do I think there is a rape culture in which sexual assault is rampant on college campuses? I just don’t buy that. There are a lot of problems on college campuses that make sexual assault much too prevalent, most importantly excessive drinking. No. 2, a sports culture. I’d like to change all of those things. But it’s important to make the distinction between the more subtle problems that women face on a daily basis and this claim that sexual assault is rampant.

This interview has been edited for length and clarity.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.

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