Author: saveadmin

Ed Dept. wants students accused of sexual misconduct to have rights Joe Biden wants for himself

Post author By saveadmin
Post date May 9, 2020

In the wake of Tara Reade’s allegation that former Vice President Joe Biden sexually assaulted her when he was a senator in 1993 – an allegation that Biden strongly denies – he and his supporters have finally got it right when it comes to assessing claims of sexual assault.

Significantly, the position Biden now holds is based on the same philosophy behind the U.S. Education Department regulations released Wednesday that will govern how institutions of higher education and K-12 schools handle students’ accusations of sexual misconduct.

Biden and his backers now say that when a sexual misconduct allegation is made, the accuser needs to be heard and respected. But importantly, the accuser’s claims need to be subject to rigorous investigation free of any presumption of guilt. After all, our entire justice system is based on the principle that anyone accused of a crime is presumed innocent until proven guilty.

The purpose of the new Education Department rules – issued under the authority of the federal anti-discrimination statute known as Title IX – is to ensure that “every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” Education Secretary Betsy DeVos said.

In order to ensure that guilt is not predetermined, the rules guarantee due process for accused students – something that was sorely lacking under the Obama administration’s 2011 guidance on the same topic.

The new due process requirements for universities include: the presumption of innocence; written notice of the allegations; an opportunity for the accuser and accused to review the evidence; a live hearing; an impartial decision-maker; and the right of the accused and accuser to each be represented by an adviser who can cross-examine and challenge evidence, subject to the typical “rape shield” exceptions.

The accuser is also protected from having to come face-to-face with the accused during the hearing and is not required to divulge any medical or psychological records. Schools are required to respond promptly to all reports of sexual misconduct and to investigate all complaints filed.

The new rules also increase transparency. Colleges are required to disclose the materials used to train their Title IX staff. Transcripts or recordings of hearings must be kept and made available to the parties. And the parties cannot be prohibited from speaking about the allegations.

Compare that to the Obama administration guidance. The guidance came in a “Dear Colleague letter” that did not go through the notice and comment process required for regulations and was withdrawn in 2017. The letter encouraged schools to deny due process protections to accused students – even when they faced expulsion – and mandated the lowest possible standard of proof for conviction.

As a result, accused students were commonly denied the presumption of innocence and even access to evidence favorable to their defense, as well as the details of the charges against them.

The 2011 letter was inspired by the same “women need to be believed” mantra that we’ve been hearing from Democrats and their allies until very recently. The most notable example came when Christine Blasey Ford alleged now-Supreme Court Justice Brett Kavanaugh had sexually assaulted her when both were teenagers. Exactly like Biden, Kavanaugh vehemently denied the allegation against him.

Biden’s take on Ford was typical of comments Democrats made during Kavanaugh’s Senate confirmation hearing for a seat on the Supreme Court: “You’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts,” Biden said.

Hence, it’s not surprising that Democrats liked the Obama guidance, despite their traditional support for due process (even for illegal immigrants), and attacked Secretary DeVos’ proposal for new rules in November 2018.

One of the critics of the proposed new rules was Joe Biden, who championed the 2011 guidance as vice president. This is an interesting stance for someone whose inappropriate touching could easily lead to a Title IX hearing if he were a student.

House Speaker Nancy Pelosi, D-Calif., joined in the criticism, characterizing the proposed Education Department rules and their due process guarantees as “utter contempt for survivor justice.”

Actress and #MeToo activist Alyssa Milano called the proposed regulations “Betsy’s s—– gift.”

Yet those same Democrats and their countless like-minded colleagues are now calling for due process for Joe Biden, the presumptive Democratic nominee for president in the November election.

Addressing the allegation against Biden, Pelosi paid lip service to “the idea that women will be heard and be listened to,” but added that “there’s also due process.”

Milano responded to the allegation with a sudden realization, saying: “So we have to find this balance in the ‘believe women movement’ and also giving men their due process. And, you know, realizing that we’re destroying lives, if we publicly don’t go through the right steps in order to find out if an accusation is credible or not.”

Even Biden was not afraid of looking like a hypocrite. Asked about the allegation against him on MSNBC, he qualified “believing the woman” by adding “then it’s vetted, looked into.”

Given this change of heart in recent weeks, Democrats and their allies might have rethought their opposition to the new Title IX rules. But the early indications, following Wednesday’s release of the finalized regulations, indicate otherwise.

Biden immediately denounced the rules, saying they would “strip survivors of their rights,” and vowed to reverse them. Similarly, Sen. Patty Murray, D-Wash., said “this rule is not about ‘restoring balance,’ this is about silencing survivors.”

You’d think that Joe Biden would finally understand that only a fair adjudication process can determine which party in an alleged sexual assault is the true survivor of an injustice.

Instead, Biden, Murray and their colleagues continue to mischaracterize due process, the linchpin of American justice, as “silencing” the accuser – at least when the person who is accused is not a prominent Democrat.

Joe Biden wants the presumption of innocence when he is accused of sexual assault, but doesn’t want students accused of sexual misconduct to get the same right.

Source: https://www.foxnews.com/opinion/curt-levey-ed-dept-wants-students-accused-of-sexual-misconduct-to-have-rights-joe-biden-wants-for-himself

Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Stalking Title IX

Title IX Regulatory Text — 34 CFR 106

Post author By saveadmin
Post date May 9, 2020

PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

1. The authority citation for part 106 continues to read as follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.

2. Section 106.3 is amended by revising paragraph (a) to read as follows:

§106.3 Remedial and affirmative action and self-evaluation.

(a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated
against persons on the basis of sex in an education program or activity under this part, or
otherwise violated this part, such recipient must take such remedial action as the Assistant
Secretary deems necessary to remedy the violation, consistent with 20 U.S.C. 1682.

* * * * *

3. Section 106.6 is amended by revising the section heading and adding paragraphs (d),
(e), (f), (g), and (h) to read as follows:
§ 106.6 Effect of other requirements and preservation of rights.

* * * * *

(d) Constitutional protections. Nothing in this part requires a recipient to:
(1) Restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution;
(2) Deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution; or
(3) Restrict any other rights guaranteed against government action by the U.S.
Constitution.
(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family
Educational Rights and Privacy Act (FERPA). The obligation to comply with this part is not
obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR
part 99.
(f) Title VII of the Civil Rights Act of 1964. Nothing in this part may be read in derogation
of any individual’s rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
or any regulations promulgated thereunder.
(g) Exercise of rights by parents or guardians. Nothing in this part may be read in
derogation of any legal right of a parent or guardian to act on behalf of a “complainant,”
“respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but
not limited to filing a formal complaint.
(h) Preemptive effect. To the extent of a conflict between State or local law and title IX as
implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44,
and 106.45 is not obviated or alleviated by any State or local law.

*****

4. Section 106.8 is revised to read as follows:
§ 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance
procedures.
(a) Designation of coordinator. Each recipient must designate and authorize at least one
employee to coordinate its efforts to comply with its responsibilities under this part, which
employee must be referred to as the “Title IX Coordinator.” The recipient must notify applicants
for admission and employment, students, parents or legal guardians of elementary and secondary
school students, employees, and all unions or professional organizations holding collective
bargaining or professional agreements with the recipient, of the name or title, office address,
electronic mail address, and telephone number of the employee or employees designated as the
Title IX Coordinator pursuant to this paragraph. Any person may report sex discrimination,
including sexual harassment (whether or not the person reporting is the person alleged to be the
victim of conduct that could constitute sex discrimination or sexual harassment), in person, by
mail, by telephone, or by electronic mail, using the contact information listed for the Title IX
Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s
verbal or written report. Such a report may be made at any time (including during non-business
hours) by using the telephone number or electronic mail address, or by mail to the office address,
listed for the Title IX Coordinator.
(b) Dissemination of policy—(1) Notification of policy. Each recipient must notify
persons entitled to a notification under paragraph (a) of this section that the recipient does not
discriminate on the basis of sex in the education program or activity that it operates, and that it is
required by title IX and this part not to discriminate in such a manner. Such notification must
state that the requirement not to discriminate in the education program or activity extends to
admission (unless subpart C of this part does not apply) and employment, and that inquiries
about the application of title IX and this part to such recipient may be referred to the recipient’s
Title IX Coordinator, to the Assistant Secretary, or both.
(2) Publications. (i) Each recipient must prominently display the contact information
required to be listed for the Title IX Coordinator under paragraph (a) of this section and the
policy described in paragraph (b)(1) of this section on its website, if any, and in each handbook
or catalog that it makes available to persons entitled to a notification under paragraph (a) of this
section.
(ii) A recipient must not use or distribute a publication stating that the recipient treats
applicants, students, or employees differently on the basis of sex except as such treatment is
permitted by title IX or this part.
(c) Adoption of grievance procedures. A recipient must adopt and publish grievance
procedures that provide for the prompt and equitable resolution of student and employee
complaints alleging any action that would be prohibited by this part and a grievance process that
complies with § 106.45 for formal complaints as defined in § 106.30. A recipient must provide to
persons entitled to a notification under paragraph (a) of this section notice of the recipient’s
grievance procedures and grievance process, including how to report or file a complaint of sex
discrimination, how to report or file a formal complaint of sexual harassment, and how the
recipient will respond.
(d) Application outside the United States. The requirements of paragraph (c) of this
section apply only to sex discrimination occurring against a person in the United States.
5. Section 106.9 is revised to read as follows:
§ 106.9 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

6. Section 106.12 is amended by revising paragraph (b) to read as follows:
§ 106.12 Educational institutions controlled by religious organizations.

* * * * *

(b) Assurance of exemption. An educational institution that seeks assurance of the
exemption set forth in paragraph (a) of this section may do so by submitting in writing to the
Assistant Secretary a statement by the highest ranking official of the institution, identifying the
provisions of this part that conflict with a specific tenet of the religious organization. An
institution is not required to seek assurance from the Assistant Secretary in order to assert such
an exemption. In the event the Department notifies an institution that it is under investigation for
noncompliance with this part and the institution wishes to assert an exemption set forth in
paragraph (a) of this section, the institution may at that time raise its exemption by submitting in
writing to the Assistant Secretary a statement by the highest ranking official of the institution,
identifying the provisions of this part which conflict with a specific tenet of the religious
organization, whether or not the institution had previously sought assurance of an exemption
from the Assistant Secretary.

* * * * *

7. Add § 106.18 to subpart B to read as follows:
§ 106.18 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

8. Add § 106.24 to subpart C to read as follows:
§ 106.24 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.
9. Add § 106.30 to subpart D to read as follows:

§ 106.30 Definitions.
(a) As used in this part:
Actual knowledge means notice of sexual harassment or allegations of sexual harassment
to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute
corrective measures on behalf of the recipient, or to any employee of an elementary and
secondary school. Imputation of knowledge based solely on vicarious liability or constructive
notice is insufficient to constitute actual knowledge. This standard is not met when the only
official of the recipient with actual knowledge is the respondent. The mere ability or obligation
to report sexual harassment or to inform a student about how to report sexual harassment, or
having been trained to do so, does not qualify an individual as one who has authority to institute
corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is
not limited to, a report of sexual harassment to the Title IX Coordinator as described in §
106.8(a).
Complainant means an individual who is alleged to be the victim of conduct that could
constitute sexual harassment.
Consent. The Assistant Secretary will not require recipients to adopt a particular
definition of consent with respect to sexual assault, as referenced in this section.
Formal complaint means a document filed by a complainant or signed by the Title IX
Coordinator alleging sexual harassment against a respondent and requesting that the recipient
investigate the allegation of sexual harassment. At the time of filing a formal complaint, a
complainant must be participating in or attempting to participate in the education program or
activity of the recipient with which the formal complaint is filed. A formal complaint may be
filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact
information required to be listed for the Title IX Coordinator under § 106.8(a), and by any
additional method designated by the recipient. As used in this paragraph, the phrase “document
filed by a complainant” means a document or electronic submission (such as by electronic mail
or through an online portal provided for this purpose by the recipient) that contains the
complainant’s physical or digital signature, or otherwise indicates that the complainant is the
person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the
Title IX Coordinator is not a complainant or otherwise a party under this part or under § 106.45,
and must comply with the requirements of this part, including § 106.45(b)(1)(iii).
Respondent means an individual who has been reported to be the perpetrator of conduct
that could constitute sexual harassment.
Sexual harassment means conduct on the basis of sex that satisfies one or more of the
following:
(1) An employee of the recipient conditioning the provision of an aid, benefit, or service
of the recipient on an individual’s participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal access to the recipient’s
education program or activity; or
(3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as
defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or
“stalking” as defined in 34 U.S.C. 12291(a)(30).
Supportive measures means non-disciplinary, non-punitive individualized services
offered as appropriate, as reasonably available, and without fee or charge to the complainant or
the respondent before or after the filing of a formal complaint or where no formal complaint has
been filed. Such measures are designed to restore or preserve equal access to the recipient’s
education program or activity without unreasonably burdening the other party, including
measures designed to protect the safety of all parties or the recipient’s educational environment,
or deter sexual harassment. Supportive measures may include counseling, extensions of
deadlines or other course-related adjustments, modifications of work or class schedules, campus
escort services, mutual restrictions on contact between the parties, changes in work or housing
locations, leaves of absence, increased security and monitoring of certain areas of the campus,
and other similar measures. The recipient must maintain as confidential any supportive measures
provided to the complainant or respondent, to the extent that maintaining such confidentiality
would not impair the ability of the recipient to provide the supportive measures. The Title IX
Coordinator is responsible for coordinating the effective implementation of supportive
measures.
(b) As used in §§ 106.44 and 106.45:
Elementary and secondary school means a local educational agency (LEA), as defined in
the Elementary and Secondary Education Act of 1965, as amended by the Every Student
Succeeds Act, a preschool, or a private elementary or secondary school.
Postsecondary institution means an institution of graduate higher education as defined in
§ 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an
institution of professional education as defined in § 106.2(n), or an institution of vocational
education as defined in § 106.2(o).
10. Add § 106.44 to subpart D to read as follows:
§ 106.44 Recipient’s response to sexual harassment.
(a) General response to sexual harassment. A recipient with actual knowledge of sexual
harassment in an education program or activity of the recipient against a person in the United
States, must respond promptly in a manner that is not deliberately indifferent. A recipient is
deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light
of the known circumstances. For the purposes of this section, §§ 106.30, and 106.45, “education
program or activity” includes locations, events, or circumstances over which the recipient
exercised substantial control over both the respondent and the context in which the sexual
harassment occurs, and also includes any building owned or controlled by a student organization
that is officially recognized by a postsecondary institution. A recipient’s response must treat
complainants and respondents equitably by offering supportive measures as defined in § 106.30
to a complainant, and by following a grievance process that complies with § 106.45 before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. The Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as defined in § 106.30, consider
the complainant’s wishes with respect to supportive measures, inform the complainant of the
availability of supportive measures with or without the filing of a formal complaint, and explain
to the complainant the process for filing a formal complaint. The Department may not deem a
recipient to have satisfied the recipient’s duty to not be deliberately indifferent under this part
based on the recipient’s restriction of rights protected under the U.S. Constitution, including the
First Amendment, Fifth Amendment, and Fourteenth Amendment.
(b) Response to a formal complaint. (1) In response to a formal complaint, a recipient
must follow a grievance process that complies with § 106.45. With or without a formal
complaint, a recipient must comply with § 106.44(a).
(2) The Assistant Secretary will not deem a recipient’s determination regarding
responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of
discrimination under title IX by the recipient, solely because the Assistant Secretary would have
reached a different determination based on an independent weighing of the evidence.
(c) Emergency removal. Nothing in this part precludes a recipient from removing a
respondent from the recipient’s education program or activity on an emergency basis, provided
that the recipient undertakes an individualized safety and risk analysis, determines that an
immediate threat to the physical health or safety of any student or other individual arising from
the allegations of sexual harassment justifies removal, and provides the respondent with notice
and an opportunity to challenge the decision immediately following the removal. This provision
may not be construed to modify any rights under the Individuals with Disabilities Education Act,
Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
(d) Administrative leave. Nothing in this subpart precludes a recipient from placing a
non-student employee respondent on administrative leave during the pendency of a grievance
process that complies with § 106.45. This provision may not be construed to modify any rights
under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.
11. Add § 106.45 to subpart D to read as follows:
§ 106.45 Grievance process for formal complaints of sexual harassment.
(a) Discrimination on the basis of sex. A recipient’s treatment of a complainant or a
respondent in response to a formal complaint of sexual harassment may constitute discrimination
on the basis of sex under title IX.
(b) Grievance process. For the purpose of addressing formal complaints of sexual
harassment, a recipient’s grievance process must comply with the requirements of this section.
Any provisions, rules, or practices other than those required by this section that a recipient
adopts as part of its grievance process for handling formal complaints of sexual harassment as
defined in § 106.30, must apply equally to both parties.
(1) Basic requirements for grievance process. A recipient’s grievance process must—
(i) Treat complainants and respondents equitably by providing remedies to a complainant
where a determination of responsibility for sexual harassment has been made against the
respondent, and by following a grievance process that complies with this section before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. Remedies must be designed to restore or preserve
equal access to the recipient’s education program or activity. Such remedies may include the
same individualized services described in § 106.30 as “supportive measures”; however, remedies
need not be non-disciplinary or non-punitive and need not avoid burdening the respondent;
(ii) Require an objective evaluation of all relevant evidence – including both inculpatory
and exculpatory evidence – and provide that credibility determinations may not be based on a
person’s status as a complainant, respondent, or witness;
(iii) Require that any individual designated by a recipient as a Title IX Coordinator,
investigator, decision-maker, or any person designated by a recipient to facilitate an informal
resolution process, not have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent. A recipient must ensure that
Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal
resolution process, receive training on the definition of sexual harassment in § 106.30, the scope
of the recipient’s education program or activity, how to conduct an investigation and grievance
process including hearings, appeals, and informal resolution processes, as applicable, and how to
serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest,
and bias. A recipient must ensure that decision-makers receive training on any technology to be
used at a live hearing and on issues of relevance of questions and evidence, including when
questions and evidence about the complainant’s sexual predisposition or prior sexual behavior
are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that
investigators receive training on issues of relevance to create an investigative report that fairly
summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials
used to train Title IX Coordinators, investigators, decision-makers, and any person who
facilitates an informal resolution process, must not rely on sex stereotypes and must promote
impartial investigations and adjudications of formal complaints of sexual harassment;
(iv) Include a presumption that the respondent is not responsible for the alleged conduct
until a determination regarding responsibility is made at the conclusion of the grievance process;
(v) Include reasonably prompt time frames for conclusion of the grievance process,
including reasonably prompt time frames for filing and resolving appeals and informal resolution
processes if the recipient offers informal resolution processes, and a process that allows for the
temporary delay of the grievance process or the limited extension of time frames for good cause
with written notice to the complainant and the respondent of the delay or extension and the
reasons for the action. Good cause may include considerations such as the absence of a party, a
party’s advisor, or a witness; concurrent law enforcement activity; or the need for language
assistance or accommodation of disabilities;
(vi) Describe the range of possible disciplinary sanctions and remedies or list the possible
disciplinary sanctions and remedies that the recipient may implement following any
determination of responsibility;
(vii) State whether the standard of evidence to be used to determine responsibility is the
preponderance of the evidence standard or the clear and convincing evidence standard, apply the
same standard of evidence for formal complaints against students as for formal complaints
against employees, including faculty, and apply the same standard of evidence to all formal
complaints of sexual harassment;
(viii) Include the procedures and permissible bases for the complainant and respondent to
appeal;
(ix) Describe the range of supportive measures available to complainants and
respondents; and
(x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute,
or seek disclosure of, information protected under a legally recognized privilege, unless the
person holding such privilege has waived the privilege.
(2) Notice of allegations—(i) Upon receipt of a formal complaint, a recipient must
provide the following written notice to the parties who are known:
(A) Notice of the recipient’s grievance process that complies with this section, including
any informal resolution process.
(B) Notice of the allegations of sexual harassment potentially constituting sexual
harassment as defined in § 106.30, including sufficient details known at the time and with
sufficient time to prepare a response before any initial interview. Sufficient details include the
identities of the parties involved in the incident, if known, the conduct allegedly constituting
sexual harassment under § 106.30, and the date and location of the alleged incident, if known.
The written notice must include a statement that the respondent is presumed not responsible for
the alleged conduct and that a determination regarding responsibility is made at the conclusion of
the grievance process. The written notice must inform the parties that they may have an advisor
of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of
this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section. The
written notice must inform the parties of any provision in the recipient’s code of conduct that
prohibits knowingly making false statements or knowingly submitting false information during
the grievance process.
(ii) If, in the course of an investigation, the recipient decides to investigate allegations
about the complainant or respondent that are not included in the notice provided pursuant to
paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional
allegations to the parties whose identities are known.
(3) Dismissal of a formal complaint—(i) The recipient must investigate the allegations in
a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual
harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education
program or activity, or did not occur against a person in the United States, then the recipient
must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment
under title IX or this part; such a dismissal does not preclude action under another provision of
the recipient’s code of conduct.
(ii) The recipient may dismiss the formal complaint or any allegations therein, if at any
time during the investigation or hearing: a complainant notifies the Title IX Coordinator in
writing that the complainant would like to withdraw the formal complaint or any allegations
therein; the respondent is no longer enrolled or employed by the recipient; or specific
circumstances prevent the recipient from gathering evidence sufficient to reach a determination
as to the formal complaint or allegations therein.
(iii) Upon a dismissal required or permitted pursuant to paragraph (b)(3)(i) or (b)(3)(ii) of
this section, the recipient must promptly send written notice of the dismissal and reason(s)
therefor simultaneously to the parties.
(4) Consolidation of formal complaints. A recipient may consolidate formal complaints
as to allegations of sexual harassment against more than one respondent, or by more than one
complainant against one or more respondents, or by one party against the other party, where the
allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance
process involves more than one complainant or more than one respondent, references in this
section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.
(5) Investigation of a formal complaint. When investigating a formal complaint and
throughout the grievance process, a recipient must—
(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to
reach a determination regarding responsibility rest on the recipient and not on the parties
provided that the recipient cannot access, consider, disclose, or otherwise use a party’s records
that are made or maintained by a physician, psychiatrist, psychologist, or other recognized
professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or
assisting in that capacity, and which are made and maintained in connection with the provision of
treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so
for a grievance process under this section (if a party is not an “eligible student,” as defined in 34
CFR 99.3, then the recipient must obtain the voluntary, written consent of a “parent,” as defined
in 34 CFR 99.3);
(ii) Provide an equal opportunity for the parties to present witnesses, including fact and
expert witnesses, and other inculpatory and exculpatory evidence;
(iii) Not restrict the ability of either party to discuss the allegations under investigation or
to gather and present relevant evidence;
(iv) Provide the parties with the same opportunities to have others present during any
grievance proceeding, including the opportunity to be accompanied to any related meeting or
proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and
not limit the choice or presence of advisor for either the complainant or respondent in any
meeting or grievance proceeding; however, the recipient may establish restrictions regarding the
extent to which the advisor may participate in the proceedings, as long as the restrictions apply
equally to both parties;
(v) Provide, to a party whose participation is invited or expected, written notice of the
date, time, location, participants, and purpose of all hearings, investigative interviews, or other
meetings, with sufficient time for the party to prepare to participate;
(vi) Provide both parties an equal opportunity to inspect and review any evidence
obtained as part of the investigation that is directly related to the allegations raised in a formal
complaint, including the evidence upon which the recipient does not intend to rely in reaching a
determination regarding responsibility and inculpatory or exculpatory evidence whether obtained
from a party or other source, so that each party can meaningfully respond to the evidence prior to
conclusion of the investigation. Prior to completion of the investigative report, the recipient must
send to each party and the party’s advisor, if any, the evidence subject to inspection and review
in an electronic format or a hard copy, and the parties must have at least 10 days to submit a
written response, which the investigator will consider prior to completion of the investigative
report. The recipient must make all such evidence subject to the parties’ inspection and review
available at any hearing to give each party equal opportunity to refer to such evidence during the
hearing, including for purposes of cross-examination; and
(vii) Create an investigative report that fairly summarizes relevant evidence and, at least
10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or
other time of determination regarding responsibility, send to each party and the party’s advisor, if
any, the investigative report in an electronic format or a hard copy, for their review and written
response.
(6) Hearings. (i) For postsecondary institutions, the recipient’s grievance process must
provide for a live hearing. At the live hearing, the decision-maker(s) must permit each party’s
advisor to ask the other party and any witnesses all relevant questions and follow-up questions,
including those challenging credibility. Such cross-examination at the live hearing must be
conducted directly, orally, and in real time by the party’s advisor of choice and never by a party
personally, notwithstanding the discretion of the recipient under paragraph (b)(5)(iv) of this
section to otherwise restrict the extent to which advisors may participate in the proceedings. At
the request of either party, the recipient must provide for the live hearing to occur with the
parties located in separate rooms with technology enabling the decision-maker(s) and parties to
simultaneously see and hear the party or the witness answering questions. Only relevant crossexamination and other questions may be asked of a party or witness. Before a complainant,
respondent, or witness answers a cross-examination or other question, the decision-maker(s)
must first determine whether the question is relevant and explain any decision to exclude a
question as not relevant. If a party does not have an advisor present at the live hearing, the
recipient must provide without fee or charge to that party, an advisor of the recipient’s choice,
who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that
party. Questions and evidence about the complainant’s sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the complainant’s prior
sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. If a party or witness does not submit to cross-examination at the live hearing, the
decision-maker(s) must not rely on any statement of that party or witness in reaching a
determination regarding responsibility; provided, however, that the decision-maker(s) cannot
draw an inference about the determination regarding responsibility based solely on a party’s or
witness’s absence from the live hearing or refusal to answer cross-examination or other
questions. Live hearings pursuant to this paragraph may be conducted with all parties physically
present in the same geographic location or, at the recipient’s discretion, any or all parties,
witnesses, and other participants may appear at the live hearing virtually, with technology
enabling participants simultaneously to see and hear each other. Recipients must create an audio
or audiovisual recording, or transcript, of any live hearing and make it available to the parties for
inspection and review.
(ii) For recipients that are elementary and secondary schools, and other recipients that are
not postsecondary institutions, the recipient’s grievance process may, but need not, provide for a
hearing. With or without a hearing, after the recipient has sent the investigative report to the
parties pursuant to paragraph (b)(5)(vii) of this section and before reaching a determination
regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit
written, relevant questions that a party wants asked of any party or witness, provide each party
with the answers, and allow for additional, limited follow-up questions from each party. With or
without a hearing, questions and evidence about the complainant’s sexual predisposition or prior
sexual behavior are not relevant, unless such questions and evidence about the complainant’s
prior sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. The decision-maker(s) must explain to the party proposing the questions any
decision to exclude a question as not relevant.
(7) Determination regarding responsibility. (i) The decision-maker(s), who cannot be the
same person(s) as the Title IX Coordinator or the investigator(s), must issue a written
determination regarding responsibility. To reach this determination, the recipient must apply the
standard of evidence described in paragraph (b)(1)(vii) of this section.
(ii) The written determination must include—
(A) Identification of the allegations potentially constituting sexual harassment as defined
in § 106.30;
2027
(B) A description of the procedural steps taken from the receipt of the formal complaint
through the determination, including any notifications to the parties, interviews with parties and
witnesses, site visits, methods used to gather other evidence, and hearings held;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of the recipient’s code of conduct to the facts;
(E) A statement of, and rationale for, the result as to each allegation, including a
determination regarding responsibility, any disciplinary sanctions the recipient imposes on the
respondent, and whether remedies designed to restore or preserve equal access to the recipient’s
education program or activity will be provided by the recipient to the complainant; and
(F) The recipient’s procedures and permissible bases for the complainant and respondent
to appeal.
(iii) The recipient must provide the written determination to the parties simultaneously.
The determination regarding responsibility becomes final either on the date that the recipient
provides the parties with the written determination of the result of the appeal, if an appeal is
filed, or if an appeal is not filed, the date on which an appeal would no longer be considered
timely.
(iv) The Title IX Coordinator is responsible for effective implementation of any
remedies.
(8) Appeals. (i) A recipient must offer both parties an appeal from a determination
regarding responsibility, and from a recipient’s dismissal of a formal complaint or any
allegations therein, on the following bases:
(A) Procedural irregularity that affected the outcome of the matter;
(B) New evidence that was not reasonably available at the time the determination
regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of
interest or bias for or against complainants or respondents generally or the individual
complainant or respondent that affected the outcome of the matter.
(ii) A recipient may offer an appeal equally to both parties on additional bases.
(iii) As to all appeals, the recipient must:
(A) Notify the other party in writing when an appeal is filed and implement appeal
procedures equally for both parties;
(B) Ensure that the decision-maker(s) for the appeal is not the same person as the
decision-maker(s) that reached the determination regarding responsibility or dismissal, the
investigator(s), or the Title IX Coordinator;
(C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth
in paragraph (b)(1)(iii) of this section;
(D) Give both parties a reasonable, equal opportunity to submit a written statement in
support of, or challenging, the outcome;
(E) Issue a written decision describing the result of the appeal and the rationale for the
result; and
(F) Provide the written decision simultaneously to both parties.
(9) Informal resolution. A recipient may not require as a condition of enrollment or
continuing enrollment, or employment or continuing employment, or enjoyment of any other
right, waiver of the right to an investigation and adjudication of formal complaints of sexual
harassment consistent with this section. Similarly, a recipient may not require the parties to
participate in an informal resolution process under this section and may not offer an informal
resolution process unless a formal complaint is filed. However, at any time prior to reaching a
determination regarding responsibility the recipient may facilitate an informal resolution process,
such as mediation, that does not involve a full investigation and adjudication, provided that the
recipient –
(i) Provides to the parties a written notice disclosing: the allegations, the requirements of
the informal resolution process including the circumstances under which it precludes the parties
from resuming a formal complaint arising from the same allegations, provided, however, that at
any time prior to agreeing to a resolution, any party has the right to withdraw from the informal
resolution process and resume the grievance process with respect to the formal complaint, and
any consequences resulting from participating in the informal resolution process, including the
records that will be maintained or could be shared;
(ii) Obtains the parties’ voluntary, written consent to the informal resolution process; and
(iii) Does not offer or facilitate an informal resolution process to resolve allegations that
an employee sexually harassed a student.
(10) Recordkeeping. (i) A recipient must maintain for a period of seven years records of –
(A) Each sexual harassment investigation including any determination regarding
responsibility and any audio or audiovisual recording or transcript required under paragraph
(b)(6)(i) of this section, any disciplinary sanctions imposed on the respondent, and any remedies
provided to the complainant designed to restore or preserve equal access to the recipient’s
education program or activity;
(B) Any appeal and the result therefrom;
(C) Any informal resolution and the result therefrom; and
(D) All materials used to train Title IX Coordinators, investigators, decision-makers, and
any person who facilitates an informal resolution process. A recipient must make these training
materials publicly available on its website, or if the recipient does not maintain a website the
recipient must make these materials available upon request for inspection by members of the
public.
(ii) For each response required under § 106.44, a recipient must create, and maintain for a
period of seven years, records of any actions, including any supportive measures, taken in
response to a report or formal complaint of sexual harassment. In each instance, the recipient
must document the basis for its conclusion that its response was not deliberately indifferent, and
document that it has taken measures designed to restore or preserve equal access to the
recipient’s education program or activity. If a recipient does not provide a complainant with
supportive measures, then the recipient must document the reasons why such a response was not
clearly unreasonable in light of the known circumstances. The documentation of certain bases or
measures does not limit the recipient in the future from providing additional explanations or
detailing additional measures taken.

12. Add § 106.46 to subpart D to read as follows:
§ 106.46 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

13. Add § 106.62 to subpart E to read as follows:
§ 106.62 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

14. Subpart F is revised to read as follows:
Subpart F–Retaliation
Sec.
106.71 Retaliation
106.72 Severability

Subpart F–Retaliation

§ 106.71 Retaliation.
(a) Retaliation prohibited. No recipient or other person may intimidate, threaten, coerce,
or discriminate against any individual for the purpose of interfering with any right or privilege
secured by title IX or this part, or because the individual has made a report or complaint,
testified, assisted, or participated or refused to participate in any manner in an investigation,
proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination,
including charges against an individual for code of conduct violations that do not involve sex
discrimination or sexual harassment, but arise out of the same facts or circumstances as a report
or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the
purpose of interfering with any right or privilege secured by title IX or this part, constitutes
retaliation. The recipient must keep confidential the identity of any individual who has made a
report or complaint of sex discrimination, including any individual who has made a report or
filed a formal complaint of sexual harassment, any complainant, any individual who has been
reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as
may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part
99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct
of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging
retaliation may be filed according to the grievance procedures for sex discrimination required to
be adopted under § 106.8(c).
(b) Specific circumstances. (1) The exercise of rights protected under the First
Amendment does not constitute retaliation prohibited under paragraph (a) of this section.
(2) Charging an individual with a code of conduct violation for making a materially false
statement in bad faith in the course of a grievance proceeding under this part does not constitute
retaliation prohibited under paragraph (a) of this section, provided, however, that a determination
regarding responsibility, alone, is not sufficient to conclude that any party made a materially
false statement in bad faith.

§ 106.72 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

15. Add subpart G to read as follows:
Subpart G – Procedures
Sec.
106.81 Procedures
106.82 Severability

Subpart G – Procedures
§ 106.81 Procedures.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are
hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR
100.6-100.11 and 34 CFR part 101. The definitions in § 106.30 do not apply to 34 CFR 100.6-
100.11 and 34 CFR part 101.

§ 106.82 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.
Subject Index to Title IX Preamble and Regulation [Removed]
16. Remove the Subject Index to Title IX Preamble and Regulation.
17. In addition to the amendments set forth above, in 34 CFR part 106, remove the
parenthetical authority citation at the ends of §§ 106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, ,
106.11, 106.12, 106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 106.32,
106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 106.41, 106.42, 106.43, 106.51,
106.52, 106.53, 106.54, 106.55, 106.56, 106.57, 106.58, 106.59, 106.60, and 106.61.

Source: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf , pages 2008-2033.

Title IX

Everyone Deserves to Live Under the Biden Standard

Post author By saveadmin
Post date May 9, 2020

Former Vice President Joe Biden addresses a campaign rally in Cedar Rapids, Iowa, April 30, 2019. (Jonathan Ernst/Reuters)

It’s just basic American due process, so why is Betsy DeVos getting slammed?Why should Joe Biden get due process, but not others accused of sexual misconduct?

That’s the question raised by the progressive reaction to Tara Reade’s accusation against Biden on the one hand, and Education Secretary Betsy DeVos’s new rules for handling sexual-harassment cases on college campuses on the other.

There have been voices on the left who believe Reade, but generally the note has been one of skepticism about her allegation, along with admonitions that the evidence must be considered carefully.

In other words, what any fair-minded person has maintained throughout the #MeToo era, including during the Brett Kavanaugh battle.

NOW WATCH: ‘A Majority of Democratic Voters Under 30 Doubt Biden Can Beat Trump’

The actor/activist Alyssa Milano, an erstwhile vocal advocate of “believe women,” has now modulated her view to accommodate her continued support of Biden. She explains that we need to shift our mindset “to believing women. But that does not mean at the expense of giving men their due process and investigating situations, and it’s got to be fair in both directions.”

This is an unassailable position, and one that obviously has implications for the Title IX debate. Even if it doesn’t entail supporting every particular of DeVos’s reforms, it should mean an openness to them. Nonetheless, late last year Milano slammed DeVos over the proposed changes in highly personal terms.

But her organization has declared war on DeVos’s changes.

An article in Mother Jones reported that anti-sexual-assault activists still supporting Biden have a number of reasons. One of them is “an eagerness to replace Trump’s cabinet, including Education Secretary Betsy DeVos, whose overhaul of campus sexual assault policy has prompted outcry from survivors.”

In other words, Biden gets the benefit of the doubt on Tara Reade explicitly as a means to continue to deny the accused on campus any such benefit of the doubt.

The DeVos rules reverse the single-investigator model that empowered one person to investigate a case and recommend a decision.

Now the investigator and adjudicator must be different. Students must have access to evidence, and the accused must know what is alleged and by whom and when.

There must be a live hearing and an opportunity for cross-examination by both sides.

Title IX coordinators and investigators can’t be biased one way or the other.

These measures are so in keeping with basic American traditions that it’s hard to believe that anyone could oppose them.

The ultimate irony is that Joe Biden was a prime mover behind the Obama-era Title IX rules. As Robby Soave of Reason magazine notes, “If the allegation against Biden were being decided by the kind of adjudication system that he helped enshrine on college campuses, it’s quite likely that he would be found guilty.”

There’s a lesson there, although it’s doubtful anyone — emphatically including Biden himself — is willing to learn it.

Campus Dating Violence Department of Education Domestic Violence Due Process Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

PR: New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

Post author By saveadmin
Post date May 8, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

WASHINGTON / May 8, 2020 – SAVE is today releasing an analysis that enumerates the many ways by which the newly released Title IX regulation will benefit victims of campus sexual assault. Title IX is the federal law that bans sex discrimination in schools. The new regulation was released on Wednesday by the Department of Education (1).

Titled, “Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways,” the SAVE report identifies seven broad ways that the new federal regulation benefits victims and survivors:

Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
Defines the procedures to properly investigate and adjudicate such complaints.
Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint if desired.
Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints:

A student who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
One client was charged for sexual misconduct for touching a student on her elbow at a dance because he was trying to move her out of the way of another person.
One male student was charged for giving an honest compliment to a friend on her outfit.

The new SAVE document identifies 28 legally enforceable provisions in the new regulation that will benefit and support victims. Three examples of these provisions are: “Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution;” “Complainants are assured that respondents that are deemed an immediate threat to safety will be removed from campus;” and “Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf.”

SAVE has identified numerous cases in which campus disciplinary committees, sometimes derisively referred to as “kangaroo courts,” have shortchanged victims (2). The Independent Women’s Forum argues that “Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.” (3)

There is no evidence that the previous campus policies have succeeded in reducing campus sexual assault. A recent report from the American Association of Universities revealed an actual increase in campus sexual assaults from 2015 to 2019 (4).

The SAVE analysis is available online: http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

Links:

Title IX

Education Secretary Betsy DeVos Issues New Title IX Rules To Protect Free Speech, Due Process for Accused Students

Post author By saveadmin
Post date May 7, 2020

(Screenshot via Youtube)

On Wednesday, Education Secretary Betsy DeVos formally announced the new rules related to Title IX—the federal statute that governs sexual misconduct in schools—thus completing a process that began more than a year ago, when the government first unveiled its proposed changes.

The new rules aim to protect victims of sexual misconduct while also establishing fairer procedures for the accused. The department believes the new rules will “balance the scales of justice on campuses across America,” a Department of Education spokesperson said during today’s press briefing.

Justin Dillon, an attorney with the firm KaiserDillon who specializes in campus misconduct adjudication, hailed the new rules as tremendously well thought out.

“Nothing Betsy DeVos has done since she took office will have a more lasting effect on people’s lives than this,” Dillon tells Reason. “It’s frankly inspiring to see how hard she and her staff have worked to get these regulations done and get them right.”

The new rules are similar to what the Department of Education proposed in November 2018. Most notably, the government has abolished the single-investigator model, which previously permitted a sole university official to investigate an accusation of misconduct, decide which evidence to consider, and produce a report recommending an outcome. Under the new rules, the final decision maker must be a different person than the investigator, and a finding of responsibility can only be rendered after a hearing in which a representative for the accused is able to pose questions to the accuser—i.e., cross-examination.

Importantly, the new rules narrow the scope of actionable sexual harassment to exclude conduct that ought to be protected under the First Amendment. Obama-era guidance had defined sexual harassment as “any unwelcome conduct of a sexual nature.” The new rules keep this definition but add that the conduct must be offensive to a reasonable person, severe, and pervasive. In practice, this should mean that schools will no longer initiate Title IX investigations that impugn free speech.

“This new rule strikes a powerful blow against campus censorship,” said a Department of Education spokesperson. “Campus free speech must not be sacrificed in the misguided pursuit of any other value.”

The new rules will also end the pernicious practice of universities initiating Title IX investigations in cases where the alleged victims are not interested in this course of action. Under previous guidance, any university official who became aware of a potential Title IX issue had to report it, thus triggering an investigation. Under the new guidance, school employees should make the Title IX office aware of potential issues, which will prompt these officials to reach out and offer support to victims. But a formal complaint that results in adjudication can only be initiated by the victim or their parents/legal guardians. This approach gives agency to victims and prevents schools from taking actions contrary to their wishes.

Nevertheless, victims’ rights advocates intend to fight the new rules in court. Catherine Lhamon, current chair of the U.S. Commission on Civil Rights and the former Obama administration official who presided over the changes that compromised due process, slammed the reforms as “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” That’s a gross misrepresentation of what DeVos has done, though not an unexpected one, given how irresponsibly activists and members of the media have characterized DeVos’s work.

It remains to be seen whether colleges and universities will carefully follow the new rules—much is uncertain about the future of higher education right now. Nevertheless, today is a big day for the restoration of basic due process and free speech rights in schools.

The new rules, which take effect in August, are available here.

ROBBY SOAVE is a senior editor at Reason.

Campus Sexual Assault Title IX

Does Due Process Silence Survivors?

Post author By saveadmin
Post date May 7, 2020

Honest question for those putting out panicked press releases claiming that Betsy DeVos has just silenced rape survivors on college campuses:

How exactly does due process silence anyone?

The new Title IX regulations released today by the Department of Education outline a school’s legal obligation to respond to every report of sexual harassment or assault. They require schools to investigate all complaints and emphasize the importance of supportive measures (such as course adjustments; schedule changes; counseling; no-contact orders; dorm room reassignments; and/or leaves of absence) for all survivors, even those who choose not to file a formal complaint.

They also require schools to adopt investigatory and disciplinary procedures that are fair and unbiased.

So, to which of these procedures do the rules’ opponents object?

— Do they object to informing students of the specific claims against them in a timely manner?

— Do they object to letting accused students present witnesses in their own defense?

— Do they object to letting accused students present potentially exculpatory evidence, such as text messages?

Exactly which of these basic aspects of due process silences or otherwise harms survivors?

Many of the opponents of the new rules say they’re concerned that allowing accused students to question their accuser will retraumatize victims. But cross-examination does not have to be traumatic. In fact, the new rules recommend that college administrative proceedings employ certain “rape shield” protections, such as putting the parties in separate rooms; requiring that the questioning be done by a third-party; and prohibiting questions about an accuser’s unrelated sexual history.

Do the opponents of the rules object to any attempt to test the credibility of an accuser?

The Department of Education’s new Title IX regulations do not “roll back” protections for survivors. Rather, they codify existing case law. As such, they aim to ensure fairness and protect the legitimacy and the integrity of college disciplinary decisions. Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.

These new rules help to do that.

So tell me again how they silence survivors?

Source: https://www.iwf.org/2020/05/06/does-due-process-silence-survivors/

Title IX

DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct

Post author By saveadmin
Post date May 6, 2020

Education Secretary Betsy DeVos released final regulations for schools dealing with sexual misconduct, giving them the force of law for the first time and bolstering due-process rights. The rules preserve Education Secretary Betsy DeVos’s broad goals in overhauling Title IX.

By Erica L. Green

May 6, 2020

WASHINGTON — Education Secretary Betsy DeVos on Wednesday issued final rules for how public and private schools and colleges must address allegations of sexual misconduct, locking in protections for accused students and faculty but tempering earlier proposals that critics said would harm victims of assault and harassment.

The rules preserve Ms. DeVos’s broad goals in overhauling Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, by infusing legal standards in disciplinary proceedings that have been left largely to schools to navigate.

The new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which alleged victims and accused perpetrators can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.

Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”

To find a school legally culpable for mishandling allegations, they would have to be proven “deliberately indifferent,” in carrying out mandates to provide support to victims and investigate complaints fairly.

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Ms. DeVos said in a statement. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”

The final rules, which take effect in August, codify for the first time sexual assault grievance proceedings that until now were covered by Education Department guidance and recommendations.

The Obama administration issued a “Dear Colleague” letter in 2011 and a supplementary document in 2014, which defined sexual harassment broadly and held schools liable for incidents they knew about or “reasonably should” have known about. They asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged cross-examination and mediation between victims and accused students.

Victims rights groups said that approach shepherded in a new era of accountability at colleges, putting schools on notice that Title IX did not only address equal access to sports teams. The Obama administration found a pattern of cover-ups and rampant mishandling of Title IX proceedings in both higher education and elementary and secondary schools, and initiated high-profile investigations at schools that carried the threat of losing federal funding.

Fatima Goss Graves, president of the National Women’s Law Center, vowed to fight the new rules in court, saying victims “refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.”

“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone — even during a global pandemic,” Ms. Goss Graves said. “And if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”

When Ms. DeVos rescinded the Obama-era guidance in 2017, she said she acted, in part, to give new rules the force of law. But she also sided with conservatives and other critics who said the Obama guidelines favored accusers and gave little recourse to students accused of wrongdoing. Dozens of students have won court cases against their colleges for violating their rights under the Obama-era rules.

Ms. DeVos’s initial proposals, released in November 2018, elicited more than 120,000 public comments and prompted hundreds of meetings between Education Department officials and advocacy groups.

The final rules changed to address concerns raised by victims rights groups. The department amended provisions that would have allowed schools to ignore allegations of misconduct that occurred off-campus, and officials changed proceedings that critics argued would have re-traumatized victims.

For instance, the department did extend responsibility beyond campus, saying that schools would be obliged to investigate allegations of misconduct that occur in “a building owned or controlled by a student organization that is officially recognized by a postsecondary institution,” such as a fraternity or sorority house.

Jurisdiction also extends to “locations, events, or circumstances” over which the school exercised “substantial control” over students and the activities in which the harassment occurred. However, the rules do exclude actions that happen to students studying abroad.

It also softens initial proposals for cross-examination, which lawyers for accused students believed was crucial. It prohibits students from questioning each other in personal confrontations, leaving that to advisers and lawyers. It also allows colleges to hold hearings virtually, and to grant any request for the two parties to be in separate rooms while the hearing takes place.

In the case of cross-examination, a hearing officer must first decide if the questions are relevant, and questions about a person’s sexual history are not considered relevant unless they could establish consent or prove that someone other than the accused student committed the misconduct.

The final regulations also make exceptions for primary, secondary and other specialized schools, amid concerns that the draft regulations would have subjected small children to the same treatment as young adults.

Those schools are not required to hold a hearing or cross-examinations, though parties must be able to submit written questions. And students in primary and secondary schools can report their claims to any staff member, unlike colleges, where reports must be made to a high-ranking official.

The department maintained a Supreme Court definition of harassment: “Unwelcome conduct that is so severe, pervasive and objectively offensive” that it effectively denies a person access to the school’s education program or activity. But the final rule added that conduct could be harassment if “a reasonable person” would say it was.

The department also clarified that sexual assault, dating violence, domestic violence and stalking are also sexual harassment, and added definitions for the infractions that align with the Clery and Violence Against Women Acts. Those allegations would not have to meet a severe and pervasive standard.

The rules still mandate that schools dismiss complaints that do not meet the sexual harassment definition, even if the allegations are proven true.

The rules bolster the role and visibility of the Title IX coordinator, the main point person for facilitating the complaint process, and allow schools to appoint several staff members to the position. Those staff members are now required to provide “supportive measures” to accusers even if they choose not to go through with a formal complaint.

Cases involving students can be resolved through mediation, but those involving both staff and students cannot.

The rules require that accused students be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk.

The department added an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct. A school cannot punish a student or other complainant for making a claim just because a case resulted in an unfavorable outcome. And schools are warned against disciplining students for actions revealed during Title IX proceeding, such as underage drinking or sexual contact on campus.

The rules are the most concrete and wide-reaching policy measure of Ms. DeVos’s tenure. The Title IX overhaul was a priority for the White House, and President Trump has personally commended Ms. DeVos for the undertaking.

But the rules are almost certain to be challenged. Ms. DeVos’s critics have successfully halted or hindered several of her policies in court by challenging her adherence to federal rules for issuing regulations. Under the Congressional Review Act, the rules could be overturned by a simple majority of the Senate, but that would almost certainly require Democrats to retake control of the presidency and the Senate in the November elections.

Campus Due Process Free Speech Sexual Assault Sexual Harassment

PR: 266 Professors Nationwide Issue Call for Prompt Restoration of Free Speech and Due Process on Campus

Post author By saveadmin
Post date May 4, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

266 Professors Nationwide Issue Call for Prompt Restoration of Free Speech and Due Process on Campus

WASHINGTON / May 4, 2020 – A group of 266 distinguished faculty members today is releasing a Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus. The co-signers come from 43 states and represent a broad range of disciplinary backgrounds and political persuasions. The Resolution concludes with an urgent appeal: “the undersigned professors call on lawmakers and university administrators to assure the prompt implementation of new policies that will clarify grievance procedures, enhance free speech, and embrace fairness for all.”

Among other institutions, the group includes professors from 25 law schools: Brooklyn Law School, University of California – Berkeley, Case Western Reserve University, Cleveland-Marshall School of Law, Denver University, Duke University, George Mason University, Harvard Law School, University of Hawaii, Howard University, Indiana University, John Marshall Law School, University of Kentucky, Marquette University, University of Minnesota, Mitchell Hamline School of Law, Notre Dame University, Ohio Northern University, University of Pittsburgh, University of St. Thomas, University of San Diego, Stanford University, Touro College, University of Virginia, and Washington University.

Since 2011, groups such as the American Association of University Professors have issued statements condemning the growing encroachments on free speech and due process. In 2016, the AAUP Council adopted a report, “The History, Uses, and Abuses of Title IX,” which highlights that as a result of federal sexual assault policies, free speech considerations “have been relegated to the background or ignored altogether.” (1)

Nadine Strossen, Professor of Law Emerita at the New York Law School and former President of the American Civil Liberties Union, has lamented that free expression on campus has become “an endangered species.” (2) The National Association of Scholars has called for the upcoming Higher Education Act reauthorization to include provisions to enhance free speech (3).

There are numerous examples of faculty members whose constitutionally based due process rights have been curtailed (4). At Northwestern University, professor Laura Kipnis was subjected to a months-long investigation because two students complained her criticism of her campus’ sexual harassment policy allegedly created a “chilling effect” on other students who wanted to file a sexual misconduct report (5).

SAVE urges the prompt implementation of the new Title IX regulation, which is expected to be issued soon. The Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus can be viewed online. The names are listed in alphabetical order by state: http://www.saveservices.org/wp-content/uploads/Faculty-Resolution-5.2.2020.pdf

Links:

Title IX

Biden’s Reade Denial Should Boost Title IX Rule Changes

Post author By saveadmin
Post date May 4, 2020

(Biden for President via AP)

Joe Biden and the Democratic Party have suddenly come to realize that their previously professed, reflexive belief in sexual misconduct accusations was the wrong standard. Instead, with the sexual assault allegation against Biden by former staffer Tara Reade now roiling his campaign, the Democrats are saying that the accused as well as the accuser deserve to have their accounts heard and weighed impartially and with “due process,” to borrow from recent statements by House Speaker Nancy Pelosi and others.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos. The White House has been sitting on them for months, perhaps out of fear of being attacked as indifferent to survivors by Democrats, who have savaged DeVos for seeking fairness in campus sexual assault proceedings.

Democrats, emphatically including Biden, have been almost uniformly hostile to the proposed rules, while demanding a return to the Obama administration’s guilt-presuming “believe the woman” approach, which Biden led. But how can they justify continuing to attack the DeVos regulations while at the same time preaching due process for Biden?

On Friday morning, interviewed on MSNBC’s “Morning Joe,” Biden declared that “from the very beginning, I’ve said believing the woman means taking the claim seriously, and then it’s vetted, looked into.” He added that when evaluating sexual assault allegations, “in the end the truth is what matters.”Other prominent Democrats have gone even further in expressing newfound support for the rights of the accused. Speaker Pelosi remarked, “There’s a lot of excitement around the idea that women will be heard and will be listened to. But there’s also due process.”

Kirsten Gillibrand, long her party’s Senate guilt-presuming point person on the issue of sexual assault, asserted in an interview with WNYC’s Brian Lehrer that her mantra of “believe women” meant only that female accusers should be believed “to the extent that you then do an investigation.” Gillibrand has also maintained, “I stand by Vice President Biden. He’s devoted his life to supporting women and he has vehemently denied this allegation.” Meaning that she does not believe Tara Reade.

Randi Weingarten, president of the American Federation of Teachers, captured the party’s new consensus in an interview with the Washington Post. “Democrats,” she said, “always want to make sure that a woman is respected. But you also want to make sure that people have due process.”

Apart from Gillibrand’s curious suggestion that Biden’s political record answers the question of whether he committed personal misconduct, the standards recommended by Biden and his allies are both appropriate and welcome. They recognize both the need to ensure that sexual assault complainants are treated with the respect and sensitivity they deserve and the foundational importance of “due process” in evaluating such a serious allegation.

In fact, this rhetoric closely mirrors that offered by DeVos in 2017, when she rescinded Obama-era guidance and announced plans to develop the new regulations. DeVos stated that her goal was to ensure that “every survivor of sexual misconduct must be taken seriously,” but also that “every student accused of sexual misconduct must know that guilt is not predetermined,” since “due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

DeVos’ proposed regulations, released in draft form in 2018, provided a sense of her ambitious scope. Colleges would he held to account for sweeping serious allegations under the rug (as her Education Department has recently done in levying heavy fines against Michigan State and USC). But accused students would have a chance to meaningfully defend themselves through a hearing that would include the right for an advocate to cross-examine adverse witnesses and access to the evidence that the college gathered in developing its case.

The proposed regulations went forward and received significant public comment. They were cleared by the Office of Management and Budget last month. But they remain unreleased.

In 2018, leading Democrats criticized DeVos’ efforts, often in harsh terms. Gillibrand described the proposal as “betraying survivors of sexual assault and harassment on college campuses.” Pelosi issued a statement oddly claiming that the fairer adjudication system envisioned by DeVos “denies survivors due process.” Sen. Patty Murray demanded that DeVos “withdraw this rule, start over, build on the progress we’ve made instead of moving us backward, and work with us and women and survivors across the country.”

But now the allegation against Biden has suddenly created room for a rare moment of possible bipartisan accord, as both parties have rediscovered the importance of due process — which, of course, exists not simply to protect the rights of the accused but to help produce a just adjudication.

Releasing the new regulations now would not only help keep politicians honest on this issue, but also would provide colleges with sufficient time to make the necessary procedural changes for the fall semester. It might even serve as a strike against political cynicism, if Democratic politicians prove that their newfound support for due process comes not from political expediency but instead from an appropriate commitment to fairness and justice for all.

KC Johnson is co-author, with Stuart Taylor Jr., of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Stuart Taylor Jr. is co-author, with KC Johnson, of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Sexual Harassment

Digital Dating Abuse: Many Teens, More Often Boys, Are Being Harassed Online By A Partner

Post author By saveadmin
Post date May 4, 2020

Study author: “Girls may use more violence on their boyfriends to try to solve their relational problems, while boys may try to constrain their aggressive impulses when trying to negotiate discord with their girlfriends.”

BOCA RATON, Fla. — A new study may make you long for the days of notes being passed back and forth in class stating “do you like me? Yes or no.” Life is infinitely more complicated for today’s youth than it was for generations past. Adolescents are constantly in contact with each other thanks to the internet, smartphones, and social media. While all of that technology can certainly be used in a positive way, often times it leads to cyber bullying and harassment. Now, researchers from Florida Atlantic University are shedding light on yet another problem the internet has created for teenagers: digital dating abuse.

Defined as using technology to repeatedly harass a love interest, partner, or crush in order to coerce, control, intimidate, threaten, or just plain old annoy, digital dating abuse has developed into a disturbingly common phenomenon. The research team analyzed over 2,200 U.S. middle and high school students, and 28.1% admitted they had been subjected to a form of online dating abuse over the past year.

Perhaps surprisingly, the study also noted that boys (32.3%) appear to be experiencing this type of abuse more often than girls (23.6%). Across all variations, boys were more likely to have experienced a form of digital dating abuse. In fact, boys were also more likely to have experienced physical aggression from their partner. Besides these gender fluctuations, researchers didn’t find any significant demographic differences regarding rate of digital abuse among varying races, ages, or sexual orientations.

In all, 2,218 adolescents between the ages of 12 and 17 who had been in a romantic relationship took part in the study. Examples of digital abuse given by participants included their partner looking through their phone without permission, having their phone flat out stolen by their partner, being threatened via text, their partner posting something embarrassing or hurtful about them online, or their partner posting a private image online without their consent.

Besides online abuse, 35.9% of participants also said they’ve been a victim of offline dating abuse (being pushed, shoved, hit, threatened physically, called names, etc).

“Specific to heterosexual relationships, girls may use more violence on their boyfriends to try to solve their relational problems, while boys may try to constrain their aggressive impulses when trying to negotiate discord with their girlfriends,” says Sameer Hinduja, Ph.D., lead author and a professor in the School of Criminology and Criminal Justice within FAU’s College for Design and Social Inquiry, and co-director of the Cyberbullying Research Center, in a release. “It’s unfortunate to be thinking about dating abuse as we approach one of the most romantic days of the year, Valentine’s Day. However, it is clear that digital dating abuse affects a meaningful proportion of teenagers, and we need to model and educate youth on what constitutes a healthy, stable relationship and what betrays a dysfunctional, problematic one.”

Predictably, there was a major connection between being harassed online by a partner and also experiencing abuse in person. In all, 81% of students who had experienced digital dating abuse also reported being subjected to more traditional forms of romantic harassment.

Additionally, multiple risk factors were identified in regards to digital dating abuse. Teens who said they deal with depression were four times more likely to have been harassed online by a partner, and participants who reported having had sex were 2.5 times more likely to have experienced online abuse. Participants who had sent a “sext” were five times more likely to be targeted for online relationship abuse than teens who hadn’t sexted.

“As we observe ‘Teen Dating Violence Awareness Month,’ we are hopeful that our research will provide more information on the context, contributing factors, and consequences of these behaviors,” Hinduja concludes. “Gaining a deeper understanding of the emotional and psychological mind-set and the situational circumstances of current-day adolescents may significantly inform the policy and practice we need to develop to address this form and all forms of dating abuse.”

The study is published in the Journal of Interpersonal Violence.