Author: saveadmin

Major Title IX Violations Identified at Penn State

Post author By saveadmin
Post date March 27, 2020

Pennsylvania State University has failed to provide “prompt and equitable” reporting and investigation processes for several years of complaints of sexual misconduct, the Department of Education determined after a six-year examination of the university’s Title IX procedures.

The department’s Office for Civil Rights, or OCR, concluded an investigation of eight of Penn State’s campuses opened by the Obama administration in 2014, following revelations that numerous high-ranking university officials neglected to report decades of child sexual abuse by Jerry Sandusky, a former assistant football coach. The investigation showed that Penn State “has not adequately addressed its failures in the wake of the Sandusky scandal,” wrote Carol Ashley, enforcement director for OCR, in a March 26 letter to President Eric Barron. Ashley outlined Penn State’s noncompliance with Title IX, the law prohibiting sex discrimination in education institutions that receive federal funding.

Penn State’s practices have violated the rights of both complainants and respondents in cases of alleged sexual misconduct, Ashley wrote. The university’s current Title IX policies do not provide adequate information to students and staff members about where to file a complaint, and an analysis of the 2016-17 academic year found significant delays in case processing, according to the letter. Ashley also identified specific instances when the athletic department failed to report to the university’s Title IX coordinator complaints of sexual harassment by coaches made from 2015 to 2018.

Parts of the OCR findings include past practices that have been addressed by Penn State over the course of the investigation, and remaining noncompliance “will be the immediate focus of the university’s efforts to more effectively meet OCR guidance and the needs of our community,” said a Penn State statement.

“The university remains committed to increasing the responsiveness of its policies for our students and employees,” the statement said. “We believe this review by OCR will assist Penn State in improving how it addresses the issue of sexual violence, misconduct and harassment on campus in the future.”

OCR also determined that the university’s policies violate due process rights by suspending students against whom sexual misconduct complaints are made without first meeting with those students. (Accused students can then appeal such interim suspensions.) Penn State only recently began permitting witnesses to testify at Title IX hearings, and the Office of Student Conduct can exclude any witnesses found to be “duplicative, irrelevant, or inappropriate,” which could prevent important testimony during hearings, the letter said.

“The university’s reaction to the Sandusky scandal exhibited wholesale problems amounting to a cluster of grievously deficient failures,” Ashley wrote.

Penn State has agreed “in a spirit of cooperation” to correct the issues identified by OCR, which additionally include various problems with record keeping and documentation, Kenneth Marcus, assistant secretary for civil rights, said in a press release from the Department of Education. The university will continue to report to OCR about how it handles all Title IX complaints made during the remainder of the 2019-20 academic year and 2020-21, the release said.

“Given all of the attention that Penn State has faced in the wake of the Jerry Sandusky scandal, it is disappointing that so many serious problems have remained at that university system,” Marcus said. “OCR will closely monitor the university to make sure that it fulfills the requirements of the resolution agreement.”

Campus

Overcoming a Climate of Fear on Campus: SAVE Statement on the Coronavirus Threat

Post author By saveadmin
Post date March 25, 2020

On November 17, the first case of coronavirus was reported in Wuhan, China. The virus began to spread in China and then internationally. A mere four months later, most college campuses in the United States are physically closed. Many states have shut down non-essential businesses. Americans are fearful for their own health, the well-being of their family members, and the state of the economy.

Through all of this, SAVE continues to push forward to end campus “Kangaroo Courts” and to restore fairness and due process. We cannot dissipate the momentum that we have all worked so hard to achieve.

The current untenable situation can be traced back to 2011 when the Department of Education issued its unlawful “Dear Colleague Letter” on campus violence. Campus activists used the new policy to marginalize the criminal justice system and to impose a new regimen of “Peoples’ Justice” that lacked the rudiments of fairness, both to complainants and the accused.

As a result, female students, caught up in a growing moral panic, feared that they would become victims of sexual assault. Male students became fearful of being falsely accused and expelled. Faculty became fearful that a stray comment would be misconstrued as “sexual harassment,” curtailing their career opportunities. College attorneys worried about the expanding climate of litigiousness. And administrators feared loss of federal funding.

Seeking to stop this cycle of fear, the Department of Education rescinded the Dear Colleague Letter and issued proposed new regulations, which are expected to be finalized soon. In response, SAVE is developing a detailed plan to support the implementation of new regulations, including media, legislative, outreach, and regulatory compliance efforts.

SAVE is confident that we will succeed in overcoming fear, both on college campuses and in ending the coronavirus threat. Our best wishes are with you during these uncertain times. We are grateful for your continuing support.

Sincerely,

E. Everett Bartlett, PhD

President

SAVE: Stop Abusive and Violent Environments

P.O. Box 1221

Rockville, MD 20849

T: 301-801-0608

www.saveservices.org

Colleges Plead for More Time to Implement New Title IX Regulations

Post author By saveadmin
Post date March 25, 2020

March 20, 5:45 p.m. Colleges and universities have their hands full dealing with the coronavirus outbreak, as they transition to online classes, close campuses and worrying about the health and housing of their students. But many are worried they may soon have to implement a controversial rule by U.S. Secretary of Education Betsy DeVos that will change how institutions handle allegations of sexual assault and harassment, including a requirement the accused be able to cross-examine their accusers in a live hearing.

DeVos has been rumored to be issuing the rule soon. Though the Office of Management and Budget, which reviews proposed new rules, has meetings with stakeholders scheduled through April 6, the office could cancel them and green-light a rule at any time.

The rule would involve changing policies, including faculty agreements, said Brett A. Sokolow, president of the Association of Title IX Administrators.

“Issuing Title IX regulations in the midst of coronavirus response would be a huge distraction for schools and colleges, which need to be focused right now on transitioning essential services to online delivery,” he said. While institutions are usually given 30 to 90 days to comply with a new rule, he said they should be given at least a year.

More than 10 higher educations asked this week in a memo for federal lawmakers to give DeVos “the authority to waive compliance with significant and/or costly new regulatory requirements that may be introduced in this period, as institutions’ ability to come into compliance will necessitate a substantial outlay of resources that are better allocated to other purposes at this time.”

Craig Lindwarm, vice president for government affairs at the Association of Public and Land-grant Universities, said his group is worried about having to comply with a pending rule expanding the reporting requirements for institutions for foreign gifts and contracts.

“Now is not the time to impose substantial new regulatory burdens on institutions, and significant challenges in implementation, when campuses are closing and responding to the emergency conditions they’re facing,” he said.

“We have significant concerns that institutions won’t have the bandwidth or the resources to implement these regulations,” said Matt Owens, the Association of American Universities’ executive vice president and vice president for federal relations.

“This is not the time,” said Elizabeth Tang, education and workplace justice counsel at the National Women’s Law Center. “Students and families are struggling to provide for their basic needs, and schools scrambling to provide online resources. It would be absolutely inappropriate to issue a new rule in the midst of all this.”

The law center has said it would file a suit to block the rule if the final version is similar to the initial version DeVos proposed. Many of the Trump administration’s rules have been blocked in court, she said. But Sokolow, writing in Inside Higher Ed, warned institutions will have to respond to a new rule even if it is being challenged in court.

“It’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined,” he wrote in a Jan. 15 opinion piece on the potential impact of the new rule on institutions.

Source: https://www.insidehighered.com/news/2020/03/23/live-updates-latest-news-coronavirus-and-higher-education

Campus Sexual Assault Trauma Informed

PR: Impartial and Fair Investigations at Risk in Four States Eyeing ‘Trauma-Informed’ Methods

Post author By saveadmin
Post date March 24, 2020

Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org

Impartial and Fair Investigations at Risk in Four States Eyeing ‘Trauma-Informed’ Methods

WASHINGTON / March 25, 2020 – Proposed legislation in New Hampshire, Massachusetts, California, and Hawaii would require universities to use controversial “trauma-informed” methods for investigations of allegations of campus sexual assault. Investigative reporter Emily Yoffe has concluded that “trauma-informed” methods represent a form of “junk science.” (1)

Numerous judicial opinions have found “trauma-informed” investigations presume the guilt of the accused and violate due process (2). In Norris v University of Colorado, Boulder, the university’s motion-to-dismiss was denied as the Plaintiff argued that a trauma-informed approach reflected bias by university investigators (3). In Doe v Syracuse University, the court criticized the university’s apparent bias based on “the influence on university officials of trauma-informed training”(4).

Even though the Department of Education’s April 2014 Q&A on Title IX and Sexual Violence with language about “effects of trauma, including neurobiological changes” was officially withdrawn in September 2017, “Trauma-informed” concepts are featured in bills currently being debated in four states across the country:

— New Hampshire SB679 mentions “trauma-informed response” six times and mandates the policy that institutions of higher education use regarding sexual misconduct must be “trauma-informed.”(5)

— Massachusetts H4418 requires an individual who participates in the implementation of an institution of higher education’s disciplinary process for addressing complaints of sexual misconduct be trained on “the effects of trauma, including any neurological impact on a person.”(6)

— Hawaii SB2311 requires “training on the impact of trauma” and “training on the neurobiological and psychological impact of trauma, stereotypes surrounding the causes and impact of trauma, and the components of trauma-informed care.”(7)

— California SB493 includes three provisions where “trauma-informed practices” are required: during the investigation of complaints, and training for the gender-equity officer and other employees engaged in the grievance procedures must be on “trauma-informed investigatory and hearing practices.”(8)

Three major organizations that provide training to campus investigators have cautioned against the use of “trauma-informed” methods. In July 2019, law firm Holland & Knight issued a white paper warning clients that content of training will be analyzed closely, and training for investigators and adjudicators, including trauma-informed training, should be presented in a manner that is fully balanced, does not rely on sex-stereotypes, and promotes fairness and equity for both complainants and respondents (9). In August 2019, the Association of Title IX Administrators (ATIXA) released a statement to avoid the use of theories on the neurobiology of trauma to substitute for evidence (10). Likewise, End Violence Against Women International (“EVAWI”) recently issued a report that admits, “there is a legitimate concern that the scientific literature is currently being misinterpreted and misapplied in some trainings, and this can yield inaccuracies and inappropriate conclusions during the course of a sexual assault investigation.”(11)

The use of trauma-informed practices in providing mental health services to rape victims is appropriate and useful. But relying on quasi-scientific theories for campus investigations raises concerns about fairness and objectivity. More information on the scientific and legal problems with such “victim-centered” investigations is available on the SAVE website (12).

Citations:

Stop Abusive and Violent Environments is leading the national policy movement for fairness, due process and the presumption of innocence: http://www.saveservices.org/

Title IX

National Association of Scholars. Title IX Tool Kit

Post author By saveadmin
Post date March 21, 2020

What is Title IX?

Why is Title IX controversial?

Why should Title IX concern NAS members?

Where does Title IX stand now?

What is Title IX?

Title IX refers to the 1972 Educational Amendments to the federal Higher Education Act of 1965. Title IX prohibits discrimination based on sex at schools receiving federal funds. Such schools include colleges, universities and also many secondary schools (high schools). It reads as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Why is Title IX controversial?

Originally uncontroversial. Title IX was not originally controversial. It was well supported at the time it was enacted and was understood to be simply a guarantee that women should have the same educational opportunities as men. Courts confirmed this understanding by interpreting Title IX as protecting educational access.

The controversy started with athletics. Title IX became controversial later: During the Clinton Administration, Title IX was interpreted by federal agencies (such as the Office of Civil Rights or “OCR” in the Education Department) to mean parity in funding for college athletics – that is, schools receiving federal funds were required to allocate the same financial resources to female athletics as they did toward male athletics. As a result, many male sports teams – wrestling, baseball, swimming – were defunded while many female sports teams – lacrosse, volleyball, soccer – began to receive support. (In many instances, male football teams consumed inordinate resources, including scholarship money, leaving less for other male athletic programs.)

The controversy escalated when sexual assault was said to be discrimination. In 2011 the OCR under President Obama again caused controversy when it announced in a Dear Colleague Letter (“DCL”) that sexual violence was a form of sex discrimination prohibited by Title IX. That announcement, now referred to simply as “the 2011 DCL,” tasked college Title IX offices with finding and punishing sexual violence or lose federal funds. As a result, college administrators with no experience handling accusations of serious – even criminal – misconduct began acting as police, judge and jury in the politically charged area of sexual assault.

These controversies represent administrative overreach, not law. In both the Clinton and Obama-era directives, Title IX policy changes were neither by law nor by regulation but instead were advanced in Departmental correspondence, also called “sub-regulatory guidance.” Such initiatives are controversial in and of themselves as they have the trappings of law without actually having been enacted as law by Congress or by an agency via the rule-making process.

Due process protections eroded or absent. Just as concerning, neither the 2011 DCL nor the campus officials acting pursuant to it provided procedural protections to students accused of sexual misconduct such as the presumption of innocence, the right to know and respond to complaints, the right to confront witnesses and accusers, and the right to impartial decision-makers to resolve allegations.

Protections such as these are basic rights in the American justice system; they are referred to as due process of law.

In campus Title IX administration, however, such due process rights were largely cast aside in favor of support for those making sexual assault accusations and those wanting to find and punish sexual violence on campus.

Campus kangaroo courts, then lawsuits. Soon after the 2011 DCL, stories of kangaroo court experiences surfaced: Male students reported being summarily ejected from campus based on unproven complaints with no opportunity to respond; some recounted that Title IX administrators both investigated and adjudicated allegations (a due process red flag since such roles should be separate) who then found guilt with comments such as, “I bet you assault girls all the time.” Others were subject to complaints about incidents years earlier or subject to gag orders prohibiting them from discussing allegations, or defenses to them, even with family or counsel.

Female students often felt similarly shortchanged: Accusations against star athletes, for example, were allegedly processed more slowly and ended with lighter punishments.

Unsurprisingly, many students and their families became angry with these quasi-criminal tribunals, which seemed to operate lawlessly but with real power (consequences for those “found responsible” include suspension, expulsion and permanent marks on an academic record). They began to sue in real courts – to date almost 500 lawsuits have been filed – and often prevailed by proving either due process violations or conduct code violations or even Title IX violations, showing that the Title IX process itself constituted discrimination against male students on the basis of sex!

Why should Title IX concern NAS members?

Title IX gives destructive feminist ideology real power over disfavored (usually male) students. Title IX is an area of concern for NAS because Title IX administration, like much of academia today, is dominated by feminist, ideological thinking. However, unlike much of academia, the Title IX office has direct power to hurt targeted students, both in subjecting them to a lawless, quasi-legal process, often instigated by Title IX officers themselves and therefore with a pre-determined outcome; and by punishing them, often arbitrarily, with real damage to reputation as well as to educational and professional careers.

Title IX is too often political correctness – feminist anger at “toxic masculinity” – run amok.

Title IX is seeping into the justice system. Title IX poses risk also outside of campus: Due process denial is seeping into other types of adjudication – not only student conduct hearings but also into the legal profession. For example, many campus nondiscrimination policies utilize the concept of “affirmative consent” when evaluating sexual assault complaints; this concept imposes a legal obligation, mostly on men, to obtain explicit, verbal consent at every stage of sexual intimacy or face the risk of rape charges. This standard inverts the presumption of innocence but has been proposed repeatedly to the American Bar Association as the new norm to adopt in criminal proceedings.

Title IX’s promotion of “hook-up culture” endangers students, especially women. Further, visits to Title IX offices show a deep commitment to sexual promiscuity: Sex-on-demand, pornography-on-demand and abortion-on-demand are all promoted in brochures, pamphlets and condom distribution programs as a way of saying: “Women, just like men, can also have sex without consequences – equal opportunity love ‘em and leave em …”

This mentality is embodied in the term “hook up culture,” and includes the idea, expressed by one Title IX staff member, of “healthy hook ups”- transient, sterile and numerous sexual encounters as a healthy way to live.

This, of course, is both false and dangerously misleading to young people and especially to young women. It is precisely the hook-up culture that is giving rise not only to sexual misconduct allegations – including the phenomenon of regretted sex – but also putting students at risk of disease (sexually transmitted infections or STIs), depression, and abortion. All of these problems disproportionately plague women.

In short, the prevailing Title IX feminist ideology endangers all students –but especially female students.

By teaching sexual indulgence and victimization, Title IX robs students of real freedom. Finally, the hook-up culture that results in so many Title IX complaints (and therefore rationalizes Title IX administrator jobs) also teaches self-indulgence and instant gratification instead of self-restraint and self- discipline. It is the latter, however, that allows students to achieve both academic and professional success and also, ultimately, true freedom enabling a life of the mind and virtuous citizenship – the proper goals of higher education.

Where does Title IX stand now?

2011 DCL rescinded in 2017; new regulations proposed in 2018. In September of 2017, President Trump’s Secretary of Education, Betsy DeVos rescinded the 2011 DCL and in November of 2018, new regulations implementing Title IX were proposed; public comment on those regulations closed in early 2019. The Office of Budget and Management also received comments; those meetings conclude in April of 2020.

New regulations expected in 2020. The new regulations have not yet been formally issued; they are expected to be released some time later this year.

New regulations should restore due process. The new regulations go a long way toward restoring due process protections and clarifying the Title IX obligations of schools receiving federal funds (called “recipients” or “recipient schools”) For example, the proposed regulations require schools 1) to presume the innocence of those accused; 2) to give accused students the opportunity to learn the specifics of allegations and to respond; and 3) to hold live hearings at the college level, with the opportunity to cross-examine witnesses and accusers.

The proposed regulations also require a more objective definition of sexual misconduct that qualifies as sexual discrimination under Title IX, including that any conduct complained of result in denied access to educational opportunities. (Many schools had adopted expansive definitions of “prohibited conduct” with no reference to educational access.)

What can or should NAS members do about Title IX?

Title IX is broken. The hundreds of successful lawsuits against campus Title IX offices show that the current Title IX regime is broken. NAS members should be ready to point this out.

Secretary DeVos is trying to fix it. The effort to fix this broken system should also be commended and statements to support the Trump Administration, and Secretary DeVoss in particular, are encouraged.

A teaching moment? Time for a serious conversation about due process and sexual ethics. On campus, Title IX conversations actually present a teaching moment, so to speak: At issue are two areas of importance both for young people and for the country: First is the rule of law and the critical role of due process protections in any sound legal system involving accusers and those accused; second, is the matter of sexual ethics and the obligations and rights of both men and women when socializing or dating.

Hopefully, discussions can go beyond shallow name-calling and ideology to arrive at a greater understanding and appreciation of both legal and social norms.

Materials/Toolkit:

From Campus to Kavanaugh

OMB Remarks

ABA Affirmative Consent Comment

Title IX

Tenth Circuit: There’s nothing we can do about accused student’s ‘railroading’

Post author By saveadmin
Post date March 19, 2020

An appellate court decision last week illustrates the uphill battle that often faces students who seek relief from unfair campus disciplinary proceedings in court — but several other recent decisions suggest a potential path forward for these students.

In its March 9 opinion in Doe v. University of Denver, the U.S. Court of Appeals for the Tenth Circuit acknowledged that a student’s sexual misconduct disciplinary proceeding appeared to have been nothing short of “a railroading,” but still dismissed his claims against the university.

The student plaintiff, John Doe, had sex with a fellow student, Jane Doe, in October 2014. Six months later, in April 2015, Jane’s then-boyfriend reported the encounter to an RA as a sexual assault. The university then contacted Jane, who filed an official complaint with DU’s Office of Equal Opportunity. The allegation was non-consensual sexual intercourse based on coercion, which the university defines as “‘unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will,’ such as ‘continued pressure’ after ‘someone makes clear that they do not want to engage in sexual contact.’”

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Among other things, John’s lawsuit alleged that in adjudicating his case, DU — a private university — had discriminated him on the basis of his sex in violation of Title IX. John made several arguments in support of this claim, but ultimately, the viability of his Title IX claim turned entirely on whether the court felt that obvious anti-respondent bias — at a school where 100% of respondents in recent years had been male — was sufficient to sustain a claim of gender bias.

First, John argued that the Office for Civil Rights’ 2011 Dear Colleague Letter, and the pressure DU felt to comply with it (as evidenced by a number of steps the university took in its wake) gave rise to “an inference of gender bias.” Like many other courts, the Tenth Circuit held that this alone was insufficient to constitute evidence of gender bias. Rather, John would have also needed to show evidence “that would indicate that DU’s decision in his particular case was based on his gender,” which the court held he had not done.

Next, John presented “statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU.” Specifically, “between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.” The court held, however, that there were many “nondiscriminatory explanations” for this disparity, so it could not be treated as evidence of gender bias absent “something like an affidavit from a knowledgeable person stating the school exhibits a pattern of prosecuting complaints against male but not female students.”

John also presented evidence of what he argued was gender bias in DU’s sexual misconduct proceedings, such as training materials referring to complainants as “survivors” and directing administrators to “communicate that you believe the survivor.” The court held that this “evidence demonstrates at most that DU had an anti-respondent or pro-complainant bias, which is insufficient to create an inference of anti-male bias.”

Finally, John presented extensive evidence that the university was biased against him in his own disciplinary proceeding. The court agreed that there was “colorable evidence” that the university’s proceeding was biased, based on the fact that the university (among other things):

“refused to follow leads that were potentially exculpatory”;
“disbelieved Plaintiff from the outset due to the ‘innate motive’ respondents have to lie about wrongdoing … while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews”;
“emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend”;
“suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication.”

The court wrote that “an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading.” (Emphasis added).

Then, in a remarkable passage dismissing John Doe’s Title IX claim, the court wrote:

We are not unmindful that the combination of this statistical disparity and overt anti-respondent bias—a combination not unlikely to recur with some frequency at other schools—raises palpable concerns that schools might be making a distinction without a real difference and that stereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies under the auspices of presumptions regarding an unprotected class (respondents). Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender.

This is the starkest exposition yet of something that a large number of courts have already held: egregious anti-respondent bias does not support a Title IX claim — even if most or all respondents are male — unless there is evidence tying that specifically to gender bias. That is because there is no claim under Title IX for “disparate impact”; rather, there has to be evidence of intentional sex discrimination.

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Due process

First, at public universities, obvious anti-respondent bias may be a constitutional due process issue. While Title IX is limited to remedying bias based on sex, due process requires a proceeding free of any sort of bias. Recently, several courts have held that evidence of anti-respondent bias was sufficient to sustain an accused-student plaintiff’s due process claim.

In Averett v. Hardy, No. 3:19-cv-00116 (W.D. Ky. Mar. 3, 2020), for example, the plaintiff alleged that the university’s investigator, who also served as the presiding hearing officer, was biased against him. Among other things, he alleged that the investigator only sought out evidence that confirmed his guilt, and that she “forced him to truncate his written witness statement which prevented him from fully presenting his defense.” The court agreed that this constituted a plausible due process violation.

Similarly, in Doe v. University of South Alabama, an Alabama federal district court held that the student plaintiff had plausibly alleged a due process violation based on “allegations that indicate there may be a personal relationship between individual defendants and accusers or interested parties,” resulting in impermissible bias.

Breach of contract

At both public and private universities, biased proceedings may also give rise to a breach of contract claim where the university promises a fair and unbiased process. In Doe v. Rollins College, the U.S. District Court for the Middle District of Florida used the same evidence to grant summary judgment to the college on the student plaintiff’s Title IX claim, but to deny summary judgment to the college on his breach of contract claim.

On his Title IX claim, the court held that while the plaintiff had cast articulable doubt on the outcome of the proceedings, he had not presented evidence of gender bias. The court agreed that the college had taken a “victim-centered” approach to the case, but, like so many other courts, held that pro-victim bias was not equivalent to gender bias.

The court then held, however, that Rollins may have breached its own policy promising to provide a fair resolution in disciplinary proceedings. Specifically, the court held:

[Plaintiff John] Doe did not provide sufficient evidence of gender bias for a Title IX claim, but he did provide sufficient evidence that Rollins favored the reporting student. Doe presented evidence Rollins didn’t treat him fairly or equitably—deciding he was responsible before hearing his side of the story and failing to follow procedures mandated by the Policy and Responding Party Bill of Rights. There is a genuine dispute whether Rollins responded fairly and equitably to Jane Roe’s allegation, precluding summary judgment.

In another recent decision, a New York federal district court found in Doe v. Syracuse University that by making a “result-driven determination” that was not “rationally based on the evidence,” Syracuse University may have violated its contractual promise to adjudicate sexual misconduct claims using a preponderance of the evidence standard.

Choose your claim carefully

These decisions illustrate that while Title IX claims continue to be an imperfect vehicle for accused students seeking relief from campus disciplinary proceedings that are stacked against them, those same claims of bias may prove stronger in the due process or breach of contract contexts, which do not require a showing that the bias was gender-specific.

False Allegations

False Allegations Harm True Victims

Post author By saveadmin
Post date March 19, 2020

False allegations have become a major barrier to victims of sexual assault getting the help they need. As trivial and false claims clog the system and consume scarce resources:

Victims are less likely to report the crime because they worry they won’t be believed
Police are less likely to investigate
Jurors are less likely to believe the victim
Shelters and other social services are forced to turn persons away

Now, a growing number of persons are speaking out on the problem of false allegations:

Rape is No Joke: “Enormous damages are done by making a false allegation of rape”
DA Hallie Dixon: “False reporting…can be detrimental to the prosecution of legitimate crimes.”
Judge Kevin Kilrane: False accusers do “tremendous damage to genuine victims of rape who are going to be undermined.”
Judge Stephen Hopkins: “Every false allegation of rape increases the plight of those women who are genuinely victims of rape.”
Justice Enriques: “False complaints of rape necessarily impact on the minds of jurors trying rape cases.”
Columnist Andrea Peyser: “This could present a huge problem for future rape victims.”
Columnist Myron Pitts: “Real victims of assault are never helped by phony claims. It is already difficult enough for women to report to police such a traumatic experience.”

Campus Sexual Assault Title IX

OCR Is About to Rock Our Worlds

Post author By saveadmin
Post date March 17, 2020

ATIXA, the association of Title IX administrators I serve as president, anticipates publication of the final Title IX regulations in the Federal Register within the coming weeks. The federal government last issued Title IX regulations in 1975, so this is somewhat unprecedented. The proposed changes are far more sweeping than the 2011 Dear Colleague letter promulgated by the Office for Civil Rights (OCR). The changes coincide with a due process revolution occurring in some federal courts, as well, with respect to college and university disciplinary processes.

What Will These Changes Mean for Higher Education?

Perhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications. Many of the more controversial changes will probably be addressed by a future Congress or through litigation. Some of the proposed changes included in the draft that OCR shared publicly last November may not make it into the final rule.

Most of the changes revolve around due process, which protects all of us, regardless of our campus role or status. They include provisions requiring more substantive written notice to the respondent of the nature of sexual misconduct allegations, the right of the parties to review investigation materials prior to a final determination and the right to a written rationale for the outcome and any sanctions assigned. For the most part, these are rights you would want to protect you if you were accused — rightfully or wrongfully — of sexual misconduct.

What Do We Do Now?

We at ATIXA suggest that colleges and universities continue to honor “best practices” commonly adopted by the higher education field, while moving gradually toward implementing the changes that the regulations will require. Some changes, like equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for institutions to provide broad-based supports and resources to victims of sex discrimination, such as counseling services, academic accommodation and housing changes. Now, OCR is making clear its expectation that those supports and resources also be offered to respondents. Many colleges already do so, but OCR wants to ensure uniform provision of services by all funding recipients.

Similarly, colleges can act now to extend all VAWA Section 304 rights to parties in sexual harassment cases. In 2014, Congress enacted amendments to the Violence Against Women Act (VAWA), which now are incorporated into the federal Clery Act. These changes codified as law some provisions of Title IX that were previously only proffered as regulatory agency guidance and added many provisions requiring training and prevention by colleges. Oddly, the protections of VAWA Section 304 only extended to what have become known as the “big four” offenses of sexual violence, dating violence, domestic violence and stalking. That created an asymmetry because Title IX protections include not only these four offenses but also conduct like sexual harassment and disparate-treatment sex discrimination that VAWA does not. Institutions were left with two competing laws that did not fully parallel each other. OCR’s proposed regulation logically aligns VAWA and Title IX so that rights do not vary by the type of sex offense alleged.

Thus, institutions can take steps such as providing written notice of the outcome of an allegation to all parties, not just in the big four offenses, but for sexual harassment, too. Additionally, institutions can ensure equitable provision of advisers across all cases impacted by Title IX, not just for those involving the big four.

These kinds of changes will give administrators a head start on compliance before the regulations are even released. Once released, there will be an implementation grace period of perhaps 90 days to as much as 12 months from publication of the final rule to allow colleges and universities time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.

What Do We Do When the Regulations Are Published?

Higher education needs to move toward compliance or to decide to litigate the validity of the regulations against the U.S. Department of Education — or both. OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice-and-comment period. The pressure is on for OCR to make it clear in its responses that its rules are rationally related to the statute, especially with a U.S. Supreme Court that appears increasingly hostile philosophically to agency rules.

Once OCR publishes the final rule, it will expect good-faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, colleges and universities will need to become compliant.

It took the higher education field three to four years to fully implement the 2011 guidance, but that kind of lethargy won’t be an option with these new regulations. They will have the force of law behind them rather than simply serving as guidance. Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.

The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision. This rule will create a chilling effect on reporting parties and, it will be argued, is beyond the scope of OCR’s authority to enact under the statute. Similar arguments could be made to collaterally attack OCR’s proposed requirements for live hearings and cross-examination facilitated by the parties’ advisers. In fact, activists aren’t the only cohort likely to attack such provisions, as some private colleges are also planning to litigate any attempt to impose a live hearing requirement on them, and have already funded a significant war chest to do so.

Within this highly politicized crucible where any action or inaction will catalyze litigation, institutions need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed. Faculty grievance processes will be an issue that administrators will have to face and resolve now, if they didn’t back in 2011. OCR is forcing the issue, and Title IX offices are probably going to be between a rock and a hard place — with faculty members who advocate for additional protections, such as clear and convincing evidence as a standard of proof for those accused of sexual assault, while others strongly advocate for preponderance of the evidence.

What Do We Do If We Don’t Agree With Some Provisions Within the Regulations?

About 20 to 25 percent of the regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need as a field to find ways to work within those requirements, challenge them in court or find clever work-arounds. Proposed provisions on notice, mediation, mandated reporting, live hearings and cross-examination could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways.

Let’s drill down on each of these proposed provisions a bit. OCR seeks to limit the ways in which recipients are legally put on notice of sex discrimination. Institutions might see this as a welcome safe harbor, but why would colleges and universities want to make it harder to report and respond to incidents? The opening of access and “no wrong doors” approach to intake has been one of the most valuable and enduring legacies of the 2011 guidance, and it has resulted in substantial increases in reporting of incidents for most colleges.

OCR also now plans to remove the “soft ban” on mediation of sexual violence it implemented in 2011. The vast majority of sexual harassment claims can and should be resolved informally, but we need to be sure that the parties are participating voluntarily and not being pressured to minimize the severity of what has happened to them. And many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence. Lower-level sexual harassment is very amenable to resolution via mediation, but the data on whether the same is true for violent incidents is much less conclusive.

Live hearings and cross-examination are the most controversial provisions of the proposed regulations. Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges. It will take a strong person to be willing to go through a process where they will be subject to cross-examination by the other party’s lawyer. And, importantly, no research indicates that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct allegation a full and fair opportunity to review and contest all evidence prior to a final determination.

In light of all of this tumult, perhaps the healthiest mind-set is to view the regulations mostly as setting a floor for compliance and to institutionally commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside it, where we can.

What is clear is that the pendulum is about to swing too far, again. The regulations have the potential to create significant public backlash, especially if colleges are seen as institutionally deprioritizing Title IX compliance in the coming months and years. Potential victims need to see you strengthening your program, not backing down. They are likely to perceive barriers to coming forward in the new rules, and administrators need to do everything possible to reassure potential victims that the Title IX office is still here for them, and that you’ll do everything not prohibited by the regulations to make reporting easier, offer services and resources, establish a process that is transparent and user-friendly, and avoid revictimization.

Regardless, some activists may turn some of their frustration with OCR on you, and we encourage you to be sympathetic, to encourage their voices and to be thoughtful about the ways that remedies-only and informal resolutions may be used to ameliorate or exacerbate the effects of the changes that OCR is catalyzing.

One thing is for sure — defining and maintaining sex and gender equity programmatic excellence in an environment of regulatory change, politicization of Title IX and fervent litigation will be among the most pressing challenges facing colleges and universities in 2020 and for some time to come.

Source: https://www.insidehighered.com/views/2020/01/15/how-respond-new-federal-title-ix-regulations-being-published-soon-opinion

Campus Sexual Assault

Right to counsel, right to confrontation among due process rights afforded to Arizona students under 2018 legislation

Post author By saveadmin
Post date March 17, 2020

In 2018, Arizona enacted HB 2563 (now Ariz. Rev. Stat. § 15-1866), a bill on campus free speech that FIRE criticized for missing the mark in some key respects. FIRE’s analysis of the bill focused exclusively on the aspects of the legislation that affected students’ free speech rights. We recently revisited the bill’s language and found that the final version, while still flawed on free speech grounds, greatly expanded the procedural safeguards guaranteed to students enrolled at public institutions of higher education who are accused of misconduct. So today, we are pleased to belatedly report on the robust procedural protections provided by the statute. The relevant language in the statute reads:

In all disciplinary proceedings involving students, including proceedings involving expressive conduct, a student is entitled to a disciplinary hearing under published procedures that include, at a minimum, all of the following:

(a) The right to receive advanced written notice of the allegations.

(b) The right to review the evidence in support of the allegations.

(c) The right to confront witnesses who testify against that student.

(d) The right to present a defense.

(e) The right to call witnesses.

(f) A decision by an impartial person or panel.

(g) The right to appeal.

(h) If either a suspension of more than thirty days or expulsion is a potential consequence of a disciplinary proceeding under this section, the right to active assistance of counsel.

The original text of the bill limited the above rights to only those situations where a student was facing campus discipline for allegedly disrupting a campus event. The final text, however, applies these rights “[i]n all disciplinary proceedings involving students.” This significant change means that any student at a public institution of higher education in Arizona now has all of the substantive rights listed in the statute, including the right to receive advanced notice of the allegations, the right to review evidence, the right to confront adverse witnesses, and other key rights. (The statute only requires the school to share the evidence that supports the charges, however. Unfortunately, it does not require disclosure of exculpatory evidence in the university’s possession.)

Perhaps most importantly, in cases that could result in a suspension of more than thirty days or an expulsion, the student is entitled to active assistance of counsel. This is an incredibly important development that Arizona students need to be aware of, so they can fully exercise their rights. While FIRE will continue to urge the legislature to amend the legislation to fix the free speech problems it presents, we are excited to get out the word about the strong due process provisions now in effect.

Source: https://www.thefire.org/right-to-counsel-right-to-confrontation-among-due-process-rights-afforded-to-arizona-students-under-2018-legislation/

Campus Department of Education Scholarships Title IX Equity Project

PR: The 85 Worst Universities in the Nation Offering Scholarships that Discriminate on the Basis of Sex

Post author By saveadmin
Post date March 16, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

The 85 Worst Universities in the Nation Offering Scholarships that Discriminate on the Basis of Sex

WASHINGTON / March 16, 2020 – The Title IX Equity Project today is releasing a list of 85 colleges and universities in the nation with severe violations of the federal Title IX law that bars sex discrimination in schools. These 85 institutions offer at least 10 more scholarships for female students, compared to the number of scholarships for male students. The 85 colleges are located in 34 states across the nation: AL, AZ, CA, CO, FL, GA, ID, IL, IN, IA, KS, KY, LA, MD, MA, MN, MS, MO, NV, NH, NJ, NM, NY, NC, ND, OR, PA, RI, SD, TN, TX, UT, VA, WA, WI, and WY.

One of the worst offenders in the country is the University of Missouri – Columbia, which offers 70 scholarships for female students, and one for male students. The 70 female-only scholarships address a broad range of academic fields, including medicine, education, journalism, art, and other areas. The sole scholarship for male students, the Eric G. Rowe Scholarship Fund, is reserved for “deserving farm boys” who plan to attend the university’s School of Agriculture (1).

On September 20, 2019 the SAVE Title IX Equity Project sent a letter to Chancellor Alexander Cartwright listing the discriminatory scholarships and requesting a substantive response. The University never replied. On January 28, 2020, the Title IX Equity Project filed a formal complaint with the federal Office for Civil Rights, alleging a willful breach of federal non-discrimination requirements. The decision whether to open a formal federal investigation is pending.

Such disparities not only violate federal law, they offend basic notions of fairness. At the University of Missouri – Columbia, female students outnumber males, 11,789 to 10,695 (2). Nationwide, 56% of undergraduate students are female, and 44% are male (3).

The listing of all 85 universities is available online (4). The federal Office for Civil Rights is currently investigating over 80 sex-discrimination complaints that were filed by parties alleging discrimination against male students (5).

University of Michigan-Flint professor Mark Perry has commented ironically, “universities would never tolerate any special preferences for men or discrimination against women, but on the other hand, they not only tolerate discrimination against men and special preferences for women, but they actively promote, fund and endorse illegal discrimination…The illegal discriminatory programs are not being corrected internally despite huge staffs of diversity officers.” (6)

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