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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.

This article is part of:

Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.

Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972, and weaken protections against sexual harassment and violence for students.  The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.

That the new rules would be a “significant departure” was pretty much the point. The irony of “longstanding” meaning starting in 2011 when they were invented out of whole cloth by a bureaucrat eludes Shapiro. That inclusion of some basic due process “leaves campuses less safe,” however, isn’t merely the repetition of the vapid slogan of sad advocates, but a threat by attorneys general.

The “coalition” submitted a lengthy comment of 71 pages, which suggests they have a bit of extra time on their hands having managed to fix all their state issues so that they can now focus on federal rules. But the thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. They are arguing against the value of due process, fundamental fairness for the accused male student. But slipped in there is an argument rarely seen, and never by an attorney general. There should be no presumption of innocence.

B. The Presumption of Non-Responsibility Improperly Tilts the Process in
Favor of the Respondent.

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. §§ 106.45(b)(1)(iv) & (b)(2)(i)(B). The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation. Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation. The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard (which we contend is not appropriate). The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment.

Accordingly, there should be no presumption regarding the respondent’s responsibility.

In the scheme of sophistry, this is pretty big. The presumption of innocence, or “non-responsbility” as it’s euphemistically called here, is little more than the flip-side of the burden of proof. If the burden isn’t met, then who wins? But there is an additional prong, that the “winner” isn’t ascribed the title of “rapist” who beat the rap, even though that’s pretty much the way it goes anyway.

The presumption has long been reduced to a legalism in the mind of the public, that the cops wouldn’t arrest someone if he wasn’t guilty. That prosecutors wouldn’t prosecute someone who wasn’t guilty. To many, the burden is on the perp to prove his innocence, or he’s guilty but got lucky. The concept of it being a bit problematic to prove a negative isn’t one that people tend to spend much time thinking about. Why bother when everybody knows the guy is guilty?

But the argument proffered by the attorneys general is shockingly weak:

The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.

This is a non-sequitur. The argument, which no one makes but certainly should, that the criminal law presumption should apply, as this is no “grievance procedure” but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes, compels the presumption to apply. That it’s not, at least as argued by the AGs, a criminal case has no rational bearing on whether the presumption should apply.

The question, at best, would then turn to whether the purposes for the presumption apply to these proceedings as they do to criminal cases. They can’t be bothered to make a cogent argument, but then the sad advocates to whom their comment is really addressed won’t complain about their failure of logic.

But the fact that this comes from attorneys general, whose responsibility bears some relation to constitutional rights as well as the jurisprudence upon which they exist, raises a secondary, more nefarious problem. They are arguing throughout their letter, often disingenuously such as when they ignore the caselaw requiring hearings and some means of confrontation when facts are in dispute, against the basic premises of due process.

The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” Even worse, they are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. The ploy, that someone can be accused of rape but “considered neutrally” is absurd, and they, as lawyers, certainly know this.

Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric. Having already reduced due process to the enemy of women with astounding success, is the presumption of innocence now in their crosshairs? It’s not just the impact on the woke psyche on campus, but as legal concepts are undermined in the mind of the public, it filters through the system. Won’t that be convenient for the AGs?