Author: saveadmin

PR: SAVE Calls on Lawmakers to Rein in the Campus Kangaroo

Post author By saveadmin
Post date January 9, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

SAVE Calls on Lawmakers to Rein in the Campus Kangaroo

WASHINGTON / January 8, 2020 – After nine years of campus adjudications that triggered thousands of federal complaints and hundreds of lawsuits, SAVE — a national policy organization — is calling on lawmakers to take steps to reform campus sex tribunals, sometimes referred to derisively as “kangaroo courts.”

In 2011 the federal Department of Education issued a controversial policy directing campus disciplinary committees to handle all allegations of sexual assault, even incidents that fell within the definition of a criminal offense (1).

Serious problems with the new approach soon became obvious, as the number of complaints to the federal Office for Civil Rights increased by more than five-fold. The number of Title IX complaints skyrocketed from 391 complaints in 2010 to over 2,000 complaints in 2013 and 2014 (2). In some cases, women complained the mistreatment at the hands of inept campus officials was more traumatic than the actual assault (3).

Likewise, the number of lawsuits by accused students against universities increased dramatically, with a majority of lawsuits decided in favor of the accused student. From these many lawsuits, SAVE has identified the 25 Worst Colleges for Campus Due Process (4). A CBS News documentary summed up the situation this way: “Students accused of sexual misconduct say Title IX isn’t working – and victims agree.” (5)

In 2018, the Dept. of Education issued a draft regulatory framework (6), which is expected to be finalized in early 2020. In support of this effort, SAVE is urging lawmakers to assure that three fundamental due process protections on college campuses are implemented in their state (7):

Clearly stated presumption of innocence
Timely and detailed written notice of the allegations
Right to a meaningful hearing process. This includes having the case adjudicated by persons other than the person who conducted the investigation. This means the institution must not employ a “single-investigator model.”

More information is available on the SAVE website (8).

Citations:

SAVE – Stop Abusive and Violent Environments — is leading the national policy movement to restore due process, stop false allegations, and protect all victims.

Title IX

2019 in Review in Accused Student Litigation

Post author By saveadmin
Post date January 9, 2020

First, the statistics. For the year, there were 78 new federal lawsuits filed by accused students, a rate essentially unchanged from 2018 (77 federal lawsuits filed) and 2017 (78 federal lawsuits filed). Both the state and federal level produced decisions in 96 cases—43 of which were university setbacks. Universities prevailed in 46 cases, while seven yielded mixed or neutral decisions.

That rate represents a reversal of the general trend since 2014, in which universities have experienced slightly more setbacks than victories. The changes seem largely due to litigation tactics on both sides. First, in 2019, universities more aggressively settled cases where they might be vulnerable before a court made any sort of decision—23 times in federal lawsuits in 2019, and at least 9 times in state lawsuits. Second, some schools avoided filing motions to dismiss, allowing discovery but going to the court only at the summary judgment stage, where courts have been more reluctant to side with accused students, especially on Title IX claims. Finally, accused students sought more preliminary injunctions—which are much harder to obtain—than in years past.

[Cuomo and the Lack of Fairness in NY State Title IX Stats]

The most significant ruling came in June, from the Seventh Circuit. A panel of Amy Comey Barrett, Diane Sykes, and Amy St. Eve unanimously held for an accused student at Purdue in a ruling penned by Judge Barrett, a Trump nominee and GOP Supreme Court short-lister. In a ruling that bitterly castigated what she termed a “process [that] fell short of what even a high school must provide to a student facing a days-long suspension,” the court held that—given the severity of the charges—the accused student was entitled to “relatively formal procedures.” A process in which the university’s investigator didn’t speak to the accused student’s roommate (who allegedly possessed exculpatory evidence) and in which the hearing panel pronounced guilty without even hearing from the accuser fell well short of this standard. The Purdue decision also offered a more plaintiff-friendly test for determining whether a Title IX lawsuit should move forward, with the court requiring a holistic evaluation of the case.

Other 2019 significant victories for accused students came at the district court level, where the court denied summary judgment for the university, greenlighting the case to trial. (In each of these cases, the university then settled.) In Jack Montague’s lawsuit against Yale, the court denied summary judgment on both breaches of contract and basic fairness, and in a variety of areas—including whether Yale found Montague guilty despite a lack of sufficient evidence. District courts in lawsuits against Quinnipiac and Grinnell greenlighted for trial claims that the schools had discriminated against the accused student because he was male. And a district court granted a temporary restraining order against Rhodes (Tennessee) in a ruling that suggested that Title IX required due process principles even from private universities. Finally, the year featured the first post-Dear Colleague letter jury trial, in which an accused student prevailed against Boston College.

At the same time, the year featured some troubling results. Despite seemingly strong complaints, accused students lost in lawsuits against Arkansas and Oberlin (both cases have been appealed). The Occidental case, in which the accused student was found guilty despite text messages from the accuser indicating her consent, came to an end with a horrific ruling from a California appeals court, which not only suggested courts should defer to university judgments but was presented in a tone suggesting that the judges agreed with Occidental’s decision. And Appeals Court decisions from the First Circuit (BC) and Seventh Circuit (Columbia College) wound up being quite narrowly written but nonetheless seemed to have an intent to narrow earlier circuit rulings for accused students.

[An Opponent of Due Process for the Supreme Court?]

In 2020, we await issuance of the DeVos Title IX regulations, which seek to create a more level playing field in Title IX adjudications. Accusers’ rights organizations have promised to sue to prevent that from occurring. Quite apart from that litigation, this year’s focus will turn to the Eighth Circuit (Minnesota, Iowa, the Dakotas, Nebraska, Missouri, and Arkansas), which is expected to issue five rulings in appeals filed by accused students. The cases run the gamut from due process (University of Arkansas) to Title IX (four cases) to breach of contract (Drake) to negligence (University of St. Thomas) to racial discrimination in punishment (University of Missouri, University of Minnesota). Potentially significant opinions could also come from the Third Circuit (St. Joseph’s of Pennsylvania), the Sixth Circuit (Oberlin), and the Tenth Circuit (University of Denver).

In short, litigation in this area in 2020 promises to be just as significant as in 2019.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.

Title IX

Suspended prof fights in court for his job

Post author By saveadmin
Post date January 7, 2020

A tenured University of New Mexico professor who was suspended for all of 2020 after UNM found he violated sexual harassment and Title IX policies has taken the fight to return to his job to state district court.

Nick Flor, an associate professor at UNM’s Anderson School of Management, filed a lawsuit against UNM, its Board of Regents and other university officials on New Year’s Eve, the day before his yearlong suspension without pay went into effect.

He said the university violated his due process rights during its investigation into a relationship between Flor and a graduate student, which found Flor violated university policies, according to the lawsuit. Flor denied that he violated any policies, and his attorney said he wasn’t given a fair chance to defend himself.

Flor is also seeking a temporary restraining order preventing the suspension from going into effect while the case is pending, said Nicholas Hart, Flor’s attorney.

The suspension also prohibits Flor from working elsewhere for more than 39 days during the yearlong suspension.

“It is just unfathomable to me that a tenured professor could have this type of suspension – it’s essentially a termination – and have no hearing at all,” Hart said.

University officials declined to comment on Flor’s case, or say how common it is for a professor to receive a yearlong suspension.

In the suit, Flor admits exchanging “flirtatious and explicit in nature” emails with the graduate student, identified as Jane Doe, in 2018. At one point, the two talked about paid research opportunities available to the student, but she rejected them, according to the lawsuit.

Flor said he never taught, did research with or supervised the student, and they only had a brief in-person interaction in May 2018.

He said in the lawsuit that after he cut off all communication with Jane Doe, she threatened to share their emails with Flor’s supervisor and other administrators at the university.

The graduate student, in a petition for a restraining order against Flor, which was dismissed, said there was a power imbalance between her and Flor.

“I am a graduate student at (UNM) and have no power authority of this instructor,” she wrote in the August 2018 court filing. “This inherent power differential gives professor Flor the ability to harm, harass and hurt me.”

The matter was investigated by the university’s Office of Equal Opportunity, which determined that Flor violated university policies concerning “quid pro quo sexual harassment” and Title IX. But Flor said he didn’t get a chance to challenge the findings.

Flor’s lawsuit refers to Camille Carey, the vice dean of the law school, as the “party that imposed the sanction,” which Flor is seeking to undo.

The university’s “actions and inactions described above were fundamentally unfair to plaintiff, unduly prone to false findings of sexual harassment and policy violations, and were arbitrary and capricious,” the suit contends. The university’s “conduct was so egregious as to shock the conscience.”

Flor unsuccessfully appealed the suspension to UNM President Garnett Stokes and then the Board of Regents, which in June denied the appeal.

The lawsuit is seeking an order preventing UNM from imposing the suspension and disclosing Flor’s employment records reflecting his policy violations. It is also seeking the violations be expunged from his employment records and other damages.

Flor is still trying to appeal the suspension internally through a peer review process that is available to tenured faculty, Hart said.

Title IX

DeVos restores fairness to campus sexual misconduct cases

Post author By saveadmin
Post date January 3, 2020

Last summer, Yale University settled a lawsuit by former basketball captain Jack Montague, alleging that the university unfairly expelled him for sexual misconduct. Montague, the son of an electrical contractor and bookkeeper from Tennessee, was kicked out of Yale midway through his senior year after a female student told a Title IX investigator that, during the previous school year, she hadn’t fully consented to a fourth sexual encounter with the basketball star. Montague’s suit against Yale argued (among other things) that the college’s investigation was biased and conducted in bad faith.

In 2017, Amherst College settled a lawsuit by an Asian-American former student known only as “John Doe,” who also claimed he was unjustly expelled for sexual misconduct. A female student who willingly performed oral sex on Doe claimed, almost two years later, that she had withdrawn her consent midway through the act. Doe said he had blacked out during their rendezvous and argued that text messages from the female student to a third party about the encounter demonstrated that she was a willing participant.

Like Montague, Doe sued his former college arguing that the school’s investigatory tribunal was more interested in appearing tough on sexual misconduct than it was in ascertaining the truth.

Montague and Doe are not alone. According to a recent review by Samantha Harris, vice president at the Foundation for Individual Rights, and K.C. Johnson, a professor of American History at Brooklyn College, more than 340 students penalized for sexual misconduct by Orwellian campus tribunals have brought federal lawsuits against their schools. (Many more have sued in state court). Federal courts have issued more than 90 decisions favorable to accused students, and colleges have settled more than 70 additional cases prior to any decision.

The Harris and Johnson survey suggests that attempts to address sexual assault on campus, although well intentioned, have done so at the expense of fairness, and, in many cases, the truth. That may change when Secretary of Education Betsy DeVos issues final federal regulations governing the way schools investigate sexual harassment and assault.

Although for many years colleges showed little interest in combating campus sexual assault or providing resources for victims, over the past decade, the pendulum has swung in the opposite direction.

Today, many campuses define sexual misconduct broadly to include behavior that does not violate the law. Some define any sex under the influence of alcohol as non-consensual. Others require verbal consent to be obtained at each and every stage of coupling.

More disturbingly, many colleges employ investigatory procedures that are less fair to the accused than even the dreaded Star Chamber — procedures that eliminate the presumption of innocence and deny accused students any meaningful opportunity to tell their side of the story or question witnesses.

The new regulations that DeVos is expected to issue soon attempt to restore balance by formalizing the obligations of schools to address claims of sexual misconduct, but also requiring that schools investigate such claims fairly.

The rules are expected to allow the accused to submit “exculpatory” evidence — evidence that supports his or her version of events, such as witness testimony, text messages, or proof of continued sexual relations — and allow the accused to cross-examine adverse witnesses. To protect accusers, the regulations are also expected to contain a “rape shield” provision that prohibits inappropriate questioning about an accuser’s sexual past.

DeVos has made every effort to balance the rights of the accuser and the rights of the accused, while providing colleges and universities the tools to assess claims accurately and punish misconduct.

Nevertheless, activists are calling the new regulations “intimidating and stressful, even “trauma-inducing,” for survivors. Others are calling for “massive national student resistance,” and demanding that colleges and universities ignore them. Four Democratic congresswomen recently introduced legislation to block the regulations, and former vice president Joe Biden has promised that, if elected, he will repeal the DeVos regulations and reinstate older guidelines that encouraged schools to lower the burden of proof in cases of sexual misconduct.

Perhaps the federal Department of Education shouldn’t micromanage college disciplinary procedures at all. But policy makers like DeVos are right to remind schools that, although federal law prohibits schools from responding to claims of sexual misconduct in a discriminatory way, schools should take care to handle all claims fairly and with due process.

Jennifer C. Braceras is director of Independent Women’s Law Center.

https://www.bostonglobe.com/2020/01/02/opinion/devos-restores-fairness-campus-sexual-misconduct-cases/

Title IX

6th Circuit Returns Title IX To Its Davis Roots (Updated)

Post author By saveadmin
Post date January 2, 2020

6th Circuit Returns Title IX To Its Davis Root (Updated)

You might have read about the Supreme Court’s decision in Davis v. Monroe County Board of Education. It’s been discussed here numerous times. But it’s never mentioned in anything written by a Title IX activist group or article about “survivors” or the rape epidemic on campus. No college dean ever refers to it, although the lawyers for universities know it very well when their school is sued by an alleged victim.

The reason for this is plain: the law from which the Title IX campus sex industry was born fails to support its existence and, by its explicit words, contradicts the existence of the unlawful scheme forced upon colleges by the bureaucrats in control of the Department of Education’s Office of Civil Rights in their “Dear Colleague Letters.”

They desperately want to push their bastardization of the law, purported “guidance” with denial of federal funding as the club to beat schools into submission, even though it never went through the regulatory process required by the Administrative Procedures Act and was created out of whole cloth to push and normalize a radical anti-male sexual agenda. And over time, Davis was ignored and forgotten.

Sixth Circuit Judge Alice Batchelder, however, remembers.

A victim of “student-on-student sexual harassment” has a private cause of action against the school under Title IX of the Education Amendments of 1972 (Title IX), 86 Stat. 373, codified as 20 U.S.C. § 1681, et seq., based on the formula first set out in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Under that formula, the sexual harassment must meet a certain standard and the evidence must satisfy the elements for an intentional tort. Our particular focus in this appeal is on the requirements that the harassment must be “pervasive” and the school’s response must “cause” the injury.

Title IX does not prohibit peer-on-peer sexual harassment. Note the words “sexual harassment,” as it has nothing to do with rape or sexual assault, per se, but only to the extent those words related to sexual harassment. Rather, Title IX relates only to the school’s duty not to discriminate on the basis of sex. It can’t refuse to field a women’s fencing team if it has a men’s team, as that would be discriminatory. But nothing in the law has ever required a college to become intimately embroiled in the ordinary student-on-student interactions and relationships.

In Davis, the Supreme Court laid it out in a clear test.

It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities. (Emphasis added.)

Notably, these three prongs, set forth in the conjunctive, appeared nowhere in the DCL. Catherine Lhamon, then head of the OCR, decided that she, an unelected bureaucrat, got to make up her own test, unbound by the Supreme Court, whose test was too stringent for her tastes.

This not only gave rise to colleges creating policies and procedures the law neither required nor sanctioned, but created a false belief in the entitlement of female students to have Big Brother oversee their every sexual encounter and punish male students when, and whenever, they felt it wasn’t to their satisfaction. Nothing in Davis gave rise to this “right” of female students to demand colleges vindicate their sexual choices and feelings with other students. Yet, it’s taken for granted that women can turn to their school to punish any male against whom they raise a grievance.

But what if the harassment complained of is as bad as the Davis test requires?

In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries.

This is a critical aspect of a university’s duty, that assuming the harassment rose to the level that implicated any Title IX duty at all, it was not the one-time act of sex which was subsequently regretted, but only sexual harassment that occurred afterward, after the student-on-student encounter, after the school was alerted and after the school was “deliberately indifferent” to that particular accuser’s complaint.

In other words, unless there was substantive reason to believe that a student would persist in “severe, pervasive and objectively offensive” conduct after the university was alerted to a complaint, and then was deliberately indifferent, Title IX wasn’t implicated at all. The vast majority of Title IX complaints fail to meet the stringent criteria for sexual harassment, and almost none of them involve conduct that went beyond a one-time sexual encounter.

In other words, there was no on-going conduct to address and nothing more than “don’t do it again” needed to satisfy the deliberate indifference prong. Expelling male students for sex where a woman enthusiastically consented to, if not initiated, sex when she was moderately drunk (though not incapacitated) finds no justification in the law whatsoever. This was never a requirement of Title IX. Not even close.

A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation. Because none of the plaintiffs in this case suffered any actionable sexual harassment after the school’s response, they did not suffer “pervasive” sexual harassment as set out in Davis and they cannot meet the causation element.

Colleges have long hidden behind the DCL from OCR as justification for destroying the lives of male students in order to “fulfill” their duties under the law. As the Sixth Circuit holds, this is a lie, a falsehood perpetuated by “survivor” activists and their friends in media, who have created a mythology on campus of entitlement to punishment of males for sexual encounters between students.

It’s not the law. It was never the law. And schools’ claims that the law required them to manufacture procedures to protect their female students and ruin their male students has no greater basis in law than did Lhamon’s Dear Colleague Letter.

Update: At Inside Higher Ed, Title IX activist Laura Dunn is not happy with the decision.

“What judges should keep in mind is that it’s a choice,” Dunn said. “There’s an ability to interpret the law and you have to decide what perspective you’re coming from. A lot of conservative ones think, ‘We’re going to be close to the law.’ I really suggest you think about the effect on social issues … That’s a horrible ruling and a horrible reality to subject victims to. This judge has no understanding beyond the law of how her words will impact survivors.”

But there’s more:

“Sexual assault does not need to be pervasive — it can happen once and that’s enough,” Dunn said. “You’re not only narrowing the law, you’re pretty flagrantly narrowing it so far to render it almost useless.”

Except the Supreme Court held that if it’s not “pervasive,” Title IX doesn’t apply, and as of this point in time, Dunn has no vote on SCOTUS. Rarely has anyone so clearly argued that their position is wholly unsupported by law, but they want courts to ignore the law and rule to achieve their preferred social policy.

Uncategorized

2019: A Banner Year for SAVE

Post author By saveadmin
Post date December 31, 2019

In 2019 SAVE — a leader in the national policy movement to restore due process, stop false allegations, and protect all victims — had a banner year. As we close out this year, SAVE is putting a bow on 2019 and gearing up for the challenges and opportunities the New Year is sure to bring.

We take this opportunity to thank you for joining in our fight and inspiring us to keep moving the needle towards fairness. As we reflect back on 2019, SAVE…

…diligently focused on restoring campus due process and Title IX requirements.

SAVE influenced the pending Title IX regulation by submitting 3 in-depth comments during the Notice & Comment period.
SAVE assisted prospective students and parents to avoid schools with biased and unfair practices by publishing a list of the 25 worst colleges for due process.
Attorneys benefited by the publishing of a new interactive spreadsheet listing over 100 lawsuits with favorable outcomes, and also by the publication of the Special Report: Appellate Court Decisions for Allegations of Campus Sexual Misconduct, 2013-2018.
SAVE visited 12 states (NM, TX, CA, OR, WA, MO, MN, NY, NY, CO, CT, MA) to shape their state’s campus sexual assault laws.
SAVE made our presence and position known on Capitol Hill with over 150 lobbying visits in the House and Senate designed to restore due process to campus Title IX proceedings.

…. educated stakeholders on unfair victim-centered and trauma informed investigative techniques.

Police departments and campus security offices across our nation received letters from SAVE to discontinue their use of biased trauma-informed investigative techniques.
SAVE assisted defense attorneys by developing legal strategies for their interest and use.
SAVE gained 3,350 signatures from concerned citizens on the Change.org Petition (“Stop Sham ‘Start by Believing’ Investigations”).
SAVE sent two letters to Attorney General Barr to stop DOJ funding of Start By Believing investigations
SAVE published a new report that debunks trauma-informed methods: “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims: Are We Trading One Prejudice for Another?”

…. saw encouraging results with campuses owning up to their Title IX obligations by ending disparities in sex-specific scholarships.

SAVE analyzed scholarship websites of 269 colleges in all 50 states and sent 228 Demand Letters to universities.
Ten colleges voluntarily ended their discriminatory, female-only scholarships due to SAVE sending a Demand Letter highlighting their obligations to Title IX.
The Office of Civil Rights received 18 complaints from SAVE to investigate universities for alleged Title IX non-compliance.

…worked to reform the Violence Against Women Act:

SAVE volunteer lobbyists held over 100 meetings in the House & Senate to educate staffers on the flawed version of VAWA.
SAVE sponsored a well-attended DC press conference to shed a bright light on the issue.
SAVE distributed flyers on a weekly basis to members of Congress.
SAVE promoted a “Fresh Start” to the VAWA law, which has begun a movement to a restored and fairer version of VAWA.

…shaped public opinion on due process, trauma-informed investigative techniques and VAWA by appearing on talk-radio in over 160 interviews. Media outlets, such as the LA Times, reported on the positive work SAVE is accomplishing with the Title IX Equity project.

We have a lot to be thankful for at SAVE and your continued support of our work is at the top of the list. We foresee challenges, opportunities and victories in 2020 and beyond. You have our commitment to continue to passionately lead the policy movement to restore due process, stop false allegations, and protect all victims.

Title IX

Students accused of sexual misconduct say Title IX isn’t working – and victims agree

Post author By saveadmin
Post date December 21, 2019

Watch the CBSN Originals documentary “Speaking Frankly: Title IX” in the video player above. The full hour special premieres Sunday, November 24, at 8 p.m., 11 p.m. and 2 a.m. ET on CBSN.

Los Angeles — On a sunny August afternoon, a steady stream of phone calls poured into the small law office of Hathaway Parker. The firm specializes in representing students or faculty involved in a Title IX sexual misconduct investigation on campus. They typically represent respondents, or those who were accused of misconduct, though they have also represented complainants. The lawyers say they don’t think the process works very well for anyone involved.

“I don’t think anyone ever thought that colleges and universities would be adjudicating and holding court regarding sexual crimes in America,” says Mark Hathaway, a partner at the firm. “But that’s what it’s developed into.”

Title IX is a 1972 law that prohibits discrimination on the basis of sex in federally-funded educational institutions. Initially intended to ensure female students equal access to education as their male counterparts, it has since significantly expanded in scope.

“One of the best ways to think about Title IX is that in 1972, Congress threw a pebble into a pond [and] the ripples have continued outward for more than 40 years,” explains Brett Sokolow, a lawyer and the president of the Association of Title IX Administrators (ATIXA). “Through the 1980s, Title IX really came to be almost all about sports and equity in athletics. … In the 1990s, the courts again expanded Title IX when they were asked the question, ‘Would sexual harassment create a barrier to educational opportunities for women?’ The court said, ‘Yes.’”

The courts decided that schools have a responsibility to investigate cases of sexual misconduct, and those that aren’t in compliance risk losing federal funding. But critics say the federal government has not clearly mandated how schools should handle these cases, and guidance between administrations has been inconsistent, so educational institutions often interpret the guidelines differently.

“So in one school there may be decisions that tend to be victim-favoring, at another school there may tend to be a process that is favoring the respondent,” says Sokolow.

A former student in the California State University system who was accused of sexual misconduct claims the Title IX investigator found him responsible without providing him due process: “There was no sexual details so I wouldn’t even know what to say to that. I was completely denying it. It didn’t happen … I did everything I could, every single thing. I appealed everything. They still expelled me,” he said.

Even though sexual harassment and assault are crimes in the eyes of the law, Title IX investigations are not criminal investigations, and therefore do not abide by the same rules as those followed by a criminal court. According to 2011 guidance from the Obama Administration, only a “preponderance of evidence” is required to determine whether the accused is responsible and should be disciplined — a much lower standard than criminal courts require for a conviction. A judgment of guilt in a Title IX investigation cannot lead to an arrest or a criminal record for the accused, but it some cases it can result in expulsion from the school.

“The students have no right to an attorney. The evidence isn’t given to them until right before the hearing. Often times it’s heavily redacted. There’s unknown witnesses,” says Hathaway. “So it’s like the school prosecuting a student but the student is really left to fend for themselves and usually it doesn’t fare well for them.” Although Title IX cases are not criminal proceedings, the findings can have a significant impact on students’ futures, so an increasing number of those involved are bringing lawsuits against their schools.

According to Title IX For All, a database that tracks lawsuits filed by respondents in higher education Title IX proceedings, there are 140 active lawsuits against colleges and universities filed by students who say they were denied due process. But it’s not just the respondents who say the Title IX system is failing them.

Two female students, who were represented by Equal Rights Advocates (ERA) after filing Title IX complaints against fellow students for alleged rape, said that they found the process only compounded the trauma they suffered.

“Reporting it didn’t really help at all. It kind of made matters worse,” said one of the women, who filed a Title IX complaint in her freshman year and has since changed schools. She’s now in her senior year. “They switched the Title IX coordinator in the middle of my process. I had to restart the entire process. So that meant re-investigating everything, opening everything up. The statements that I had written before, all the times were wrong. The dates were wrong. … It seemed that nothing was being resolved, and it was kind of stagnant.”

“There’s never going to be a way to know in any individual case with complete certainty, probably, that a sexual misconduct act occurred,” said Brenda Adams, a senior attorney at ERA who represents complainants in Title IX cases. “But I think, again, the focus is not on whether or not someone was falsely accused of a crime. It’s more whether or not this particular type of school misconduct occurred. And whether or not it is interfering with the victim’s access to education.”

Lara Bazelon, a law professor at the University of California San Francisco, says Title IX investigations can be extremely complicated, and the system we have in place just isn’t helping.

“One thing I have come to believe is that both sides can be genuinely, equally convinced that their version of events is true. That one side really believes that the encounter was consensual, and the other side truly believes that it was not. And neither person is lying. And that makes these cases so incredibly difficult to litigate and also for anybody to decide,” she says.

“So that’s why I think we really need to look seriously at some kind of alternative to the way we’re doing things now, because I don’t think you’ll find anybody who is going to sit here and tell you with a straight face that what we are doing right now with Title IX on college campuses is working.”

Title IX

‘Game On!’: Acquitted of Rape, Ex-Student Sues Yale University for $110 Million

Post author By saveadmin
Post date December 18, 2019

Saifullah Khan, who has been banned from Yale University on two occasions, including on an allegation of rape, has sued the institution for $110 million.

In the midst of the #MeToo movement, the Khan case has garnered state and national attention. Protests and petitions calling for Khan to be expelled from the university erupted soon after the rape allegations, and continued even after a jury acquitted him of the charge in March 2018 and Khan sought reinstatement.

Now, Khan’s high-profile attorney Norm Pattis is looking to make political correctness in the era of #MeToo a central focus.

Khan filed a federal lawsuit Friday against the university and a dozen Yale officials seeking the $110 million in damages. Pattis said his client came up with the $110 million figure.

“Whatever is going on in college campuses today is not good,” the Pattis & Smith founder said in an interview Friday, just hours after filing the 28-page lawsuit. “Mr. Khan was acquitted by a jury, and Yale [buckled] under to the PC crowd, and threw him out. The Khan acquittal captured national attention. This is the dark side of the #MeToo movement. It’s sexual and moral hysteria. Well, game on!”

Pattis said his client had sex with his peer, but did not rape her.

“Yale realizes young people on campus experiment. They distribute condoms in the laundry room, for God’s sake,” Pattis said. “What do they expect kids are doing in the middle of the night? Yale is hypocritical, and they should come back to the 21st century.”

In the lawsuit, Pattis takes further aim at Yale, writing, “The campus is also in the thrall of various claims of identity entitlement, rendering the campus less a place of unbridled intellectual stimulation, and more a smug hothouse catering to social justice warriors intent on remaking the world in their own image.”

As of Friday afternoon, Yale had not assigned an attorney to represent it. And no one from the university’s office of public affairs and communications responded to a request for comment.

Khan, a 26-year-old Afghan, became a full-time Yale student in the fall of 2012. He was expelled soon after the allegations of rape in October 2015 by a female student became public. Khan sought readmission after his March 2018 acquittal. Yale allowed him to resume his studies as a full-time student in the fall of 2018.

But the lawsuit alleges Khan was then expelled again in October 2018. The lawsuit cites a Yale Daily News story in which Khan is alleged to have had a sexual relationship with a man and then committed physical violence because he slapped him. The Oct. 5, 2018, article, which students write, was titled “Khan and his consort.” Just days after the article appeared, Khan, the lawsuit states, was told he was suspended, effective immediately, due to an “emergency.” The lawsuit says the Yale newspaper article includes claims that “were never proven or substantiated.”

The lawsuit elaborates: “According to Dean [Marvin] Chun, the suspension ‘appears necessary for your physical and emotional safety and well-being and/or the safety and well-being of the university community.’” The lawsuit says Khan was barred from campus and prohibited from attending any classes.

With regard to what Chun said, the lawsuit states: “There is no credible evidence that permitting Mr. Khan to attend classes poses a threat of harm to himself or anyone affiliated with Yale. Indeed, there was no reason whatsoever to suspect that Mr. Khan was a danger to himself or others as a result of the allegations reported in the Yale Daily News in October 2018.”

Then, the lawsuit says, one month later in November 2018, Khan was permitted to return to campus for a hearing on the Jane Doe 2015 sexual assault allegation. But the lawsuit states that the hearing was “a mere sham,” and Khan is still not permitted at the university.

Among other things, the lawsuit says, his counsel was not afforded the right to speak. It claims Khan could “neither pose questions to witnesses, not tender objections when panel members repeatedly asked compound questions, assumed facts not in evidence, or otherwise transformed the hearing process into little more than the stillborn delivery of a predetermined outcome.”

The lawsuit cites loss of reputation, emotional distress and suffering and loss of educational opportunities.

Title IX

New Title IX regulations are coming. FIRE’s newest report shows why reform is desperately needed.

Post author By saveadmin
Post date December 16, 2019

December 11, 2019

REPORT: 7 in 10 top universities do not expressly guarantee the presumption of innocence in campus sexual misconduct proceedings.
ZERO surveyed institutions guarantee all basic due process protections, or even those required under the Department of Education’s proposed Title IX regulations.
Almost 9 in 10 universities earned a D or an F for sexual misconduct policies; proposed regulations would raise grades to C or better.
PHILADELPHIA, Dec. 11, 2019 — Innocent until proven guilty? Not on college campuses.

Top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education.

With new Department of Education regulations on Title IX enforcement expected soon, FIRE’s report shows that colleges currently fail to provide students with even the most basic due process protections. This means that many colleges’ policies may have to be revised significantly after the regulations go into effect.

“Would you feel comfortable defending yourself without information about what you supposedly did wrong? Would you trust a jury that didn’t get a chance to see all the evidence? You shouldn’t — but college students across the country routinely face these troubling circumstances,” said FIRE’s Susan Kruth, lead author of the report. “Disciplinary procedures at top universities aren’t fundamentally fair because they don’t guarantee even the most basic safeguards against incorrect conclusions.”

“Spotlight on Due Process 2019–2020” examines policies at 53 top national universities to see how many of 10 fundamental procedural safeguards they guarantee students. These include basic protections familiar to all Americans, such as the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 49 receive an overall D or F grade for guaranteeing no more than 4 of those 10 safeguards.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 22 institutions that received an F grade for their sexual misconduct policies, 17 have been sued by accused students over the lack of fair procedure.

Less than 30% of top universities expressly guarantee the presumption of innocence in all serious non-academic misconduct cases, and less than 60% explicitly require that fact-finders — the institution’s version of a jury — be impartial. Only 28% 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.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear that students overwhelmingly want them to. Each element in FIRE’s report is supported by a majority of college students surveyed by YouGov for FIRE in 2018 about their views on campus due process protections:

85% of students think their accused classmates should be presumed innocent until proven guilty, but only 28% of America’s top universities explicitly guarantee students that protection.
Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students or their representatives a meaningful opportunity to cross-examine witnesses.
This landscape may shift if the proposed Department of Education regulations on Title IX — the 1972 law that prohibits sex discrimination in federally funded educational programs — are enacted. Today, 87% of institutions receive a D or F grade for their failure to protect the due process rights of students accused of sexual misconduct. Enacting only the proposed regulations would raise surveyed universities’ grades to a C or better.

“All over the country, students accused of misconduct on campus routinely face life-altering consequences without any of the procedural protections one would expect in such serious cases,” said Samantha Harris, FIRE vice president for procedural advocacy. “It looks like the Department of Education’s new regulations will ensure greater due process for students involved in certain types of cases, but universities should already be providing these important protections in all cases of serious non-academic misconduct.”

“Spotlight on Due Process 2019–2020” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org

Uncategorized

Joe Biden Promises To Restore Obama’s Disastrous Campus Kangaroo Courts

Post author By saveadmin
Post date December 16, 2019

By signaling his intention to restore unfair Title IX guidance, Biden is showing his willingness to eviscerate due process to please far-left activists.

By Inez Feltscher Stepman

DECEMBER 12, 2019

Joe Biden has learned nothing from the Title IX due process disaster plaguing America’s campuses. The former vice president has released a plan on his website to restore the Obama administration’s infamous 2011 Dear Colleague letter, which Biden’s plan describes as outlining how to “fairly conduct Title IX proceedings.” In reality, the Dear Colleague letter introduced a monstrously unfair process that has forced hundreds of young men to sue for their rights — and reputations — in federal courts.

An accused’s rights to confront his or her accuser through cross examination and to have a neutral adjudicator have long been considered the very basics of due process. In the name of protecting women, the 2011 guidance encouraged universities to abandon these well-tested pillars in favor of a single-investigator model, in which a Title IX administrator both elicits the stories from the involved parties and rules on the outcome. The Dear Colleague letter also pushed universities into lowering the standard of proof and discouraged any kind of cross examination that might probe discrepancies in an alleged victim’s story.

“It’s particularly concerning that a presidential candidate seems oblivious to the unintended repercussions of a policy he championed. Over 500 lawsuits have been filed by accused students since the 2011 Dear Colleague letter, resulting in at least 161 court decisions in these students’ favor and over 100 pre-decision settlements,” Garrett said.

She also added that to her knowledge, Biden did not even reach out to organizations concerned about due process or any of the families of those suing their universities before pronouncing the Obama administration action an unalloyed good that should be restored.

Under Secretary Betsy DeVos, President Trump’s Department of Education withdrew the Obama-era guidance and proposed a new, fairer rule, which among other changes ensures that those accused of Title IX misconduct on campus have access to a fair adjudicator, the advice of counsel, and the ability to question (through third parties) their accusers. Now, leading Democratic candidate Biden says he will restore the madhouse that federal judges have excoriated as “enough to shock the Court’s conscience.”

Is it any wonder that in the wake of watching the Kavanaugh hearings, in which a man with an impeccable record had his reputation nationally and permanently trashed by allegations countered by all the available evidence, more American men reported they’d rather be falsely accused of murder than sexual misconduct? In that same poll, almost 60 percent of both the men and women surveyed said society presumes a man accused of sexual assault to be guilty.

While we should of course have sympathy for victims of sexual assault, the unfair process Biden blithely promises to restore has victims as well. FACE collects some of their stories, mostly anonymized to protect the young men and their families still traumatized and ashamed by their experiences with unfair campus adjudication.

It’s doubtless true that many women have negative experiences in the alcohol-fueled hookup culture prevalent on most American universities, but attempting to cram the genie back in the bottle with over-broad definitions of consent and unfair processes just creates more victims. And the kangaroo processes necessary to punish men for failing to read women’s minds in ambiguous situations infantilize women, as well as cheapen the experiences of real rape victims.

Inez Feltscher Stepman is a senior contributor at The Federalist. She is also a senior policy analyst at Independent Women’s Forum and the Thursday editor of BRIGHT, a women’s newsletter. Find her on Twitter @inezfeltscher.