Category: Campus

Biden is President-Elect. Can We Just Ignore the Title IX Regulations Now?

Post author By Edward Bartlett
Post date November 11, 2020

November 9, 2020

TNG Consulting and Brett Sokolow

It has been a week! We now know that Joe Biden is the President-Elect of the United States of America. There will still be some legal wrangling, and nothing is set in stone until the electors vote in December. But, assuming this outcome is maintained, you’ll likely be able to ignore Executive Order 13950 (“Combating Race and Sex Stereotyping”). But, what about the Title IX Regulations?

You’ve always had the option to ignore them. The question is whether you’re willing to accept the consequences of that decision. If so, compliance is a choice. If not, you need to comply. So, to make an informed decision, you need to know what the consequences are.

In just 70 days (plus or minus) there will be a new administration. The Office for Civil Rights needs to be directed to come after you for failing to comply with the regulations, and their new Biden-appointed supervisors aren’t likely to do that. Even if OCR were to enforce, you could drag it out and appeal. There is no way for OCR to issue a 305 notice of adverse enforcement action within 70 days, and even then that would have to be referred to the courts, so you’re probably pretty safe on that front.

The problem is the courts. Deprive respondents of their regs-based rights, and they will sue. Trump-appointed judges and others who value due process over victim’s rights will use the regulations as the basis of enforcement through litigation, though exactly how that will work remains to be tested. Do you want to be the test case? Maybe you’ll face a TRO. It’s temporary. Could President Biden’s ED act to rescind the regulations before a permanent injunction would be implemented? That would stop judges from enforcing the regs. Litigating to trial could take two years. By that time, Biden’s administration will have acted to at least rescind the regs, if not replace them, right? That would moot the lawsuit. So, you have to decide whether fending off some lawsuits is a reasonable price to pay for liberating your campus or school from the regulations.

Of course, President Biden won’t rescind the regs personally. That will be done by the Secretary of Education. How long will it take the Biden transition team to vet and select a nominee for Secretary of Education? How long might it be until a Secretary of Education is in place (must be confirmed by the Senate), builds a new team, and works through his/her/their priorities until Title IX hits the top of the list? It could be a year. ATIXA expects many colleges and schools will maintain their compliance with the regulations until then, but we also expect some loosening over time, as signals are issued from the Biden administration and the Department of Education about how they’re going to play this. What will change?

An informal poll of the ATIXA Title IX experts came up with these top ten targets:

Relief from direct cross examination by an advisor (cross-examination is not going anywhere, but we expect a lessening of the rigid regs requirements)
Removal of the nonsensical exclusionary/hearsay rule regarding “statements”
Revocation of the confusing rules on relevance v. directly related evidence
Two ten-day review periods likely collapsed into one period
Formal complaint requirement will be reversed
Hearing requirements for at-will employees will be limited
Hearings will only be required when some form of separation is on the table, and the definition of hearing will be broader and less formal
Mandated dismissal of Title IX complaints removed
Broad retaliation protections rolled back, especially as applied to respondents
Removal of any necessity for two processes

We do expect there will be some legal counsels who evaluate the risk and advise their schools and districts to move away from the regs to a best practices model (ATIXA’s Process B?) immediately. We can’t and won’t advise you to do so yet (and some circuit courts of appeals won’t allow it), and we don’t advise you to ignore the regs without first consulting your attorneys. Doing the right thing by implementing a best practice model may wind up being a very defensible position going forward. ATIXA will have its eyes on ways to effectively balance the rights of complainants and respondents, and how we can help you to do so as the rules for Title IX likely shift again in the coming years.

If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach, like what ED did in 2017, to fill the gap. Simultaneously or soon thereafter, ED will announce a process to issue new regulations under the APA (which will then take 1 year to 18 months). The DCL won’t bring back 2011 but will likely use a framework that modifies the current regulations per our above laundry list. This is the mostly likely scenario, but don’t write off a Title IX Restoration Act in Congress, especially if the Senate goes blue after the Georgia runoff elections in January.

Source: https://www.jdsupra.com/legalnews/biden-is-president-elect-can-we-just-63134/

Campus Due Process Sexual Assault Sexual Harassment Title IX

Barrett Confirmation is a Win for Due Process on Campus

Post author By Edward Bartlett
Post date November 10, 2020

Barrett Confirmation is a Win for Due Process on Campus

By Edward Bartlett

In her swearing-in ceremony, new Supreme Court Associate Justice Amy Coney Barrett pledged “to do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.” While many speculate on how the tenure of the 115th justice will impact the court, one thing is a near certainty – it is a win for due process and ending sex discrimination on university campuses.

For nearly a decade, college administrators have interpreted Title IX in a way that allowed them to discriminate against students based on sex by offering, among other things, sex-specific STEM courses, leadership development programs, and scholarships. Additionally, universities have used Title IX to railroad students who have been accused—not convicted—of harassment or sexual assault. Thankfully, the U.S. Department of Education released regulations earlier this year that protect students from these types of discriminatory practices.

On this topic, Barrett has shown herself to be a fair jurist—an originalist who interprets the law as it is written not as she wishes it was. And the law is clear when it comes to Title IX—discrimination based on a student’s sex is prohibited.

At her announcement ceremony in the White House Rose Garden, Barrett made it clear that she doesn’t care who a person is when considering a case but what the law says. Barrett stated she would, “administer justice without respect to persons,” which is exactly what’s missing on today’s college campus where an entire sex is shut out of classes and a mere accusation is enough for expulsion.

When one sex discrimination case, Doe v. Perdue University, was put before the U.S. Court of Appeals for the 7th Circuit, Judge Barrett wrote the panel’s opinion after they revived the student’s right to due process.

The student, referred to as John Doe, was accused of sexual misconduct, which he denied. He was suspended, discharged from the school’s ROTC program, and stripped of his ROTC-related scholarship, even though he was not allowed to call witnesses or defend himself in any meaningful way.

Barrett wrote, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension . . . John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”

This may seem like an isolated incident that’s the result of an overzealous administration with an ax to grind. But I assure you, this type of sex discrimination is happening to male students all over the country despite the recent changes to Title IX.

Judge Barrett isn’t the only well-known judge with experience in sex discrimination. Almost half a century ago, the late Supreme Court Justice Ruth Bader Ginsburg, the judge Barrett is set to replace on the country’s highest court, made waves when she represented Charles Mortiz in Mortiz v. Commissioner of Internal Revenue after he was denied a tax deduction for expenses related to the care of his invalid mother. Only women and previously married men were allowed the deduction, so Mortiz, a lifelong bachelor, was denied it due to his sex. Thanks to Ginsburg, that discriminatory decision was eventually overturned.

While Justice Ginsburg never ruled on a Title IX case related to campus sexual assault, she did comment on the issue in 2018, stating, “there’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” and that, “the person who is accused has a right to defend herself or himself.”

I agree with Justice Ginsburg and believe that clarity on sex discrimination will help set the tone when it comes to Title IX compliance. Which is one very important reason to celebrate Justice Barrett’s confirmation to the Supreme Court.

Campus Sexual Assault Sexual Harassment Title IX

N.Y. and Ed Dept. Dismiss Title IX Rule Lawsuit

Post author By Edward Bartlett
Post date November 6, 2020

By Greta Anderson

November 5, 2020

The State of New York and the U.S. Department of Education agreed Tuesday to dismiss the state’s lawsuit against the department and Secretary of Education Betsy DeVos. The lawsuit, filed in June by state officials and the Board of Education for the New York City school district, challenged the Trump administration’s new rules for how colleges and universities respond to campus sexual assault and harassment.

The lawsuit is the second to be dismissed of four lawsuits that were brought against the department due to the new rules, which were issued in May under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions. Last month, a judge for the district court in the District of Columbia dismissed a lawsuit filed by the American Civil Liberties Union on behalf of advocacy organizations for survivors of sexual assault.

The State of New York’s lawsuit, however, was voluntarily dismissed, according to court documents filed in U.S. District Court for the Southern District of New York. Both the state and the Department of Education agreed that Tuesday’s dismissal would not prevent the state or its institutions “from asserting the invalidity” of the Title IX regulations if New York schools are sued for sexual assault or harassment-related claims, the agreement said.

As of Nov. 4, there are two remaining lawsuits that challenge the legality of the Title IX regulations. One lawsuit filed by the National Women’s Law Center and other legal advocacy groups is scheduled to go to trial starting Nov. 12 in United States District Court for the District of Massachusetts. Arguments in another lawsuit, which 18 attorneys general are backing, are scheduled to stretch into 2021, according to court documents.

Source: https://www.insidehighered.com/quicktakes/2020/11/05/ny-and-ed-dept-dismiss-title-ix-rule-lawsuit#:~:text=The%20State%20of%20New%20York,Secretary%20of%20Education%20Betsy%20DeVos.&text=Arguments%20in%20another%20lawsuit%2C%20which,2021%2C%20according%20to%20court%20documents

Campus Office for Civil Rights Sex Stereotyping Title IX Title IX Equity Project Victims

PR: Hinting at Sex Bias, Federal Judge Slaps Down RPI for Circumventing New Title IX Regulation

Post author By saveadmin
Post date October 25, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Hinting at Sex Bias, Federal Judge Slaps Down RPI for Circumventing New Title IX Regulation

WASHINGTON / October 26, 2020 – A federal judge has ruled against Rensselaer Polytechnic Institute for utilizing its old Title IX policy for a case that was adjudicated after the August 14 effective date of the new regulation. The decision is widely seen as a rebuke to RPI, both because it reversed a decision by college administrators, and because of the strong language used in the opinion (1).

In this case, John Doe and Jane Roe had a sexual encounter while under the strong influence of alcohol. Echoing the familiar he-said, she-said pattern, Doe alleged that Roe pressured him to put his hands around her neck and engage in unprotected sex. In contrast, Roe claimed that his hands were placed on her neck in a non-sexual way, and that the sexual activity was non-consensual.

Doe and Roe filed Title IX complaints against each other with school officials.

During the campus adjudication, RPI applied different standards against the two parties, deciding that “Doe’s complaint against Roe was insufficiently substantiated because he failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe.” As a result, the college made a determination in favor of Roe.

Doe then filed a lawsuit in the New York Northern District Court. In his October 16 ruling, Judge David Hurd suggested that sex bias was at work: “[T]he female’s complaint proceeded without issue, the male’s was struck down in part on grounds not contemplated anywhere in the policy’s definition of consent. That inequitable treatment provides not inconsiderable evidence that gender was a motivating factor in RPI’s treatment of Doe.”

Relying on unusually strong language, the court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” Doe had presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded.

Sex discrimination against male students appears to be widespread on college campuses. Recently, George Washington University ordered 23 student groups to amend their constitutions to comply with the school’s nondiscrimination policy. These groups include Girls Who Code, Queens Movement, and female-only service groups (2).

Other forms of sex discrimination include female-only services (3), female-specific scholarships (4), one-sided gender studies courses (5), and sex stereotyping (6).

This appears to be the first judicial ruling regarding the applicability of the new Title IX regulation. Judge Hurd’s decision can be viewed online (7).

Links:

Campus Department of Education Discrimination Due Process Executive Order Office for Civil Rights Race Sex Stereotyping Sexual Assault Title IX Title IX Equity Project

PR: Noting the ‘Seriousness of Penalties,’ College Administrators Suspend Trainings that Promote Sex Stereotypes

Post author By saveadmin
Post date October 19, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Noting the ‘Seriousness of Penalties,’ College Administrators Suspend Trainings that Promote Sex Stereotypes

WASHINGTON / October 19, 2020 – In response to new federal requirements, college administrators have begun to stop school trainings and curricular offerings that promote stereotypes based on sex or race. For example, the University of Iowa recently announced a decision to suspend all such trainings, workshops, and programs. Noting “the seriousness of penalties for non-compliance with the order,” the pause applies to all harassment and discrimination trainings offered by the institution (1). Other institutions of higher education reportedly have made similar decisions (2).

Two federal policies are driving the re-evaluation. First, the new Department of Education sexual harassment regulation states that Title IX training activities “must not rely on sex stereotypes.” (3) Second, Executive Order 13950 directs federal agencies to suspend funding for any institution that promotes concepts that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive.” (4)

SAVE is urging administrators at colleges and universities across the country to take immediate steps to end trainings and other activities that may promote sex stereotypes. Title IX and other training programs are known to be promoting sex stereotypes in at least seven ways:

Domestic violence: Each year there are 4.2 million male victims of physical domestic violence, and 3.5 female victims, according to the Centers for Disease Control (5). University training programs need to clearly and accurately state these numbers.
Sexual assault: Nearly identical numbers of men and women are victims of sexual assault, according to the federal National Intimate Partner and Violence Survey. Each year, 1.267 million men report they were “made to sexually penetrate,” compared to 1.270 million women who report they were raped (6). But many university training programs utilize data from surveys relying on methodologies that undercount the number of male victims who were made to penetrate.
Annual vs. lifetime incidence: Due to well-known problems with recall and memory retrieval, lifetime incidence numbers significantly undercount domestic violence and sexual harassment incidents, especially less serious incidents that occurred in previous years. University trainings should use annual, “in the past 12 months” numbers, not “lifetime” numbers.
Sex-specific pronouns: In referring to domestic violence or sexual assault perpetrators and victims, many training materials misleadingly refer to the perpetrator as “he” and the victim as “she.”
Examples: Training materials often provide hypothetical examples to illustrate key concepts. Such examples need to highlight approximately equal number of male and female victims.
Imagery: Some university websites feature domestic violence incidents that portray a threatening male standing over a fearful, often cowering female. Such one-sided portrayals are misleading.
Negative stereotyping of men as a group: Some universities offer campus-wide programs that seek to redefine, reform, and/or stigmatize masculinity. University-sponsored courses that promote theories of “toxic masculinity,” “rape culture,” and “patriarchal privilege” are likely to be in violation of the federal ban on sex stereotyping. Such stereotypes serve to undermine principles of fairness and equity for male students.

For example, the University of Texas offers a program titled “MasculinUT.” The program’s website states that concerns about sexual assault and interpersonal violence justify the “need to engage men in discussions about masculinity as one tool to prevent violence.” (7) The university does not offer a similar program directed at females, thereby creating an unlawful stereotype of male perpetrators and female victims.

Some universities teach courses that feature the American Psychological Association report, “Guidelines for Psychological Practice with Boys and Men.” (8) The accompanying APA article made the stereotyping claim that “traditional masculinity — marked by stoicism, competitiveness, dominance and aggression — is, on the whole, harmful.”

To date, the SAVE Title IX Equity Project has submitted 20 complaints to the federal Office for Civil Rights for non-compliance with regulatory requirements for Title IX training materials (10).

Links:

https://diversity.uiowa.edu/regarding-executive-order-13950?utm
https://blog.aspb.org/policy-update-uneven-implementation-of-executive-order-on-race-and-sex-stereotyping/
https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf 45(b)(1)(iii)
https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/
https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf Tables 9 and 11.
Lara Stemple and Ilan Meyer. The Sexual Victimization of Men in America: New Data Challenge Old Assumptions. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4062022/
https://deanofstudents.utexas.edu/masculinut.php
https://www.apa.org/about/policy/boys-men-practice-guidelines.pdf
https://www.apa.org/monitor/2019/01/ce-corner
http://www.saveservices.org/equity/

Campus Scholarships Sex Stereotyping Sexual Harassment Title IX Title IX Equity Project

PR: Recent Central Oklahoma Resolution Agreement Highlights Problem of Widespread Title IX Non-Compliance

Post author By saveadmin
Post date October 13, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Recent Central Oklahoma Resolution Agreement Highlights Problem of Widespread Title IX Non-Compliance

WASHINGTON / October 13, 2020 – A recent Resolution Agreement between the federal Office for Civil Rights and the University of Central Oklahoma reveals continuing problems with Title IX compliance on college campuses. In this case, the University offered a “Computer Forensics Summer Academy and STEM CareerBuilder for Girls” that stated the program was “unavailable for male students.” The Resolution Agreement was signed by UCO president Patti Neuhold-Ravikumar on September 30 (1).

The UCO Resolution Agreement highlights the problem of widespread sex bias at colleges across the country in the areas of sex-specific programs, female-only scholarships, Title IX regulatory compliance, and sex stereotyping:

Sex-Specific Programs: Professor Mark Perry has filed 231 complaints to date with the Office for Civil Rights alleging Title IX violations, among which the Office for Civil Rights has already opened 80 investigations. His complaints address a broad gamut of sex-specific programs, including female-only STEM academies, leadership development efforts, gym exercise hours, study lounges, and more (1).

Female-Only Scholarships: Over the past two years, the SAVE Title IX Equity Project has identified hundreds of scholarships that are reserved for female students. For example, the University of Missouri-Columbia offers 70 female-specific scholarships, and only one male-specific scholarship. To date, the Office for Civil Rights has opened 121 investigations into these sex-discriminatory scholarships (2). These biased offerings have attracted extensive media attention (3).

Title IX Regulatory Compliance: The new Title IX regulation, which became effective on August 14, was designed to end sex bias against students accused of sexual harassment. One recent review concluded that some colleges have sought to evade the new Title IX requirements, such as cross-examination by an advisor. But at the University of St. Thomas, for example, investigators are instructed to make credibility determinations before the accused student has a meaningful chance to defend himself (4). To date, SAVE has filed OCR complaints against 15 colleges alleging failure to post their Title IX training materials.

Sex Stereotyping: Title IX has long been understood to address the problem of sex-based stereotyping (5). For example, the new Department of Education regulation advises that any Title IX training materials “must not rely on sex stereotypes.” (6)

Many universities offer courses that examine topics such as “patriarchy,” which has been defined as an “unjust social system that subordinates, discriminates or is oppressive to women.” (7) According to one widely used college textbook, patriarchy causes “women everywhere [to] suffer restrictions, oppression and discrimination.” (8) The fashioners of such “unjust social systems” are purported to be males. Such depictions serve to stereotype male students.

Following are examples of such negative stereotypes:

Georgetown University professor Christine Fair recently published a guidebook titled “Wanted: Smash Patriarchy.” The front cover of the book depicts the silhouette of a man (9).
Five University of Massachusetts professors have blamed patriarchy for women’s mental “fragmentation.” (10)
Michael Olenick enrolled in a Women’s Studies course at the University of Minnesota, where he reportedly was lectured on “theories about world conspiracies dedicated to repressing and exploiting women.”

A recent Executive Order authorizes the Department of Education and other federal agencies to suspend funding to any institution that promotes concepts that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive.” (11)

College presidents and other administrators need to assure Title IX compliance and to assure curricular offerings avoid sex stereotypes.

Links:

Campus Sexual Assault Sexual Harassment Title IX

PR: Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

Post author By saveadmin
Post date September 16, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

WASHINGTON / September 17, 2020 – One month after a historic civil rights policy took effect at colleges across the nation, legal experts are warning administrators about the legal pitfalls of “dual-track” adjudications. Dual-track adjudications are employed by colleges when students or faculty are accused of a type of sexual misconduct that falls outside the strict definitions found in the new Title IX regulation.

Yesterday, SAVE issued a report titled, “Dual Track Adjudications: Recipe for Legal Disaster.” The Commentary notes that apart from the requirements of the new federal policy, “there is another branch of government that vigorously enforces due process rights: the judiciary.” The analysis cites recent decisions by the Third, Sixth, Eighth, and Ninth Circuit Courts that make it easier for an accused student to prevail in a legal action charging the university with sex discrimination (1).

The article concludes, “While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices.”

The SAVE Commentary echoes concerns recently expressed by a number of legal experts:

Last week, Samantha Harris and Michael Allen published an editorial titled, “Universities Circumvent New Title IX Regulations.” The attorneys reveal, “Things were supposed to change in August, when the new Title IX regulations took effect, with robust free speech and due process protections. Now it appears that many campuses are fighting to ensure these protections remain illusory. It’s not that institutions aren’t changing their policies. Rather, they are doing so to comply superficially while claiming increased authority to subject students and faculty to processes that provide few, if any, of the protections that the regulations require.” (2)

In an August 24 editorial, attorney Teresa Manning voiced concerns that schools “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.” For example, Princeton University’s dual-track policy does not require in-person questioning of parties, even though legal scholars believe that live cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” (3)

Addressing the issue more broadly, legal commentator KC Johnson identifies three themes reflected in the four recent appeals court decisions: officials’ indifference to innocence, widespread procedural irregularities, and institutions that bowed to political pressures to find more accused persons guilty. In his September 15 article, Johnson warns of the specter of continued litigation: “In theory, the new federal Title IX regulations, which require colleges to use fairer procedures, will protect against the injustices identified in the recent appellate decisions. But political, legal, and university opposition to the regulations cloud their future. It may be that federal courts will need to continue to correct campus processes that too often seem indifferent to justice.” (4)

If college administrators decide to create “dual-track” adjudications, SAVE urges that these systems assure the same level of due process protections as campus Title IX adjudications.

Links:

Campus Sexual Assault Sexual Harassment Title IX Equity Project Training

PR: Many Universities Not Compliant with New Title IX Requirement to Post Training Materials

Post author By saveadmin
Post date September 8, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Many Universities Not Compliant with New Title IX Requirement to Post Training Materials

WASHINGTON / September 8, 2020 – A review of the websites of 50 colleges and universities across the nation reveals that 65% are out of compliance with the Title IX regulation’s requirement to post all Title IX training materials. This past week, SAVE filed complaints with Office for Civil Rights against several of these non-compliant schools.

The Title IX implementing regulation, 34 CFR 106, has new provisions, which went into effect on August 14, 2020, that require the posting of Title IX training materials. The regulation calls on schools to post on their websites, “All materials used to train Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process.” §106.45(b)(10)(D)

On May 18, the Office for Civil Rights issued detailed guidance on the topic: https://www2.ed.gov/about/offices/list/ocr/blog/20200518.html. The guidance states, “All materials used to train Title IX personnel…Must be publicly available on the school’s website.” [emphasis in the original].

The guidance goes on to explain:

“Section 106.45(b)(10)(D) does not permit a school to choose whether to post the training materials or offer a public inspection option. Rather, if a school has a website, the school must post the training materials on its website.

A school must post on its website: “All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.” Posting anything less than “all materials” on the website in insufficient. Accordingly, merely listing topics covered by the school’s training of Title IX personnel, or merely summarizing such training materials is not the same as posting “all materials.” [emphasis in the original]

Many institutions, such as Princeton University (1), posted training materials geared toward students and faculty, or webinars provided by the Department of Education, but did not post the training materials used for Title IX staff. The federal regulation states that all materials used to train Title IX personnel must be posted. Training materials that are protected by a student ID number or password are also out of compliance, as the federal regulation states the material must be made publicly available.

In contrast, many schools are in compliance with the federal regulation’s posting requirement. Examples of such schools are Amherst College (2) and the University of Colorado-Boulder (3). The University of Vermont even posted a YouTube video of the actual training program that their staff attended (4).

SAVE has filed complaints with the Office for Civil Rights against 10 schools that are out of compliance with the federal regulation. More OCR complaints will be filed as SAVE continues its review of school websites.

The SAVE Title IX Equity Project has found that Title IX violations are widespread at schools across the country. These violations pertain to sex-specific scholarships, sex-specific programs, and due process procedures in campus adjudications. The number of open OCR investigations of such violations currently exceeds 200 cases, and continues to increase (5).

Citations:

https://sexualmisconduct.princeton.edu/reports
https://www.amherst.edu/offices/title-ix/title-ix-policy
https://www.colorado.edu/oiec/policies
https://www.uvm.edu/aaeo/title-9-sexual-misconduct
http://www.saveservices.org/equity/ocr-investigations/

Campus Title IX

PR: Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government

Post author By saveadmin
Post date August 27, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government; SAVE Urges Delay on Vote

WASHINGTON / August 27, 2020 – State senator Hannah Beth Jackson has inserted language into a Higher Education bill, SB-493, that would force California colleges to defy a new federal regulation designed to assure fairness during campus adjudications of sexual harassment. The federal rule, which recently took effect on August 14, requires that the school convene a live hearing where each party’s advisor (but not the student) is allowed to pose relevant questions to the other party.

Question-asking is viewed as essential to clarify the facts of the case and assess the credibility of each party. Such measures are necessary to identify allegations that are exaggerated or false.

Sen. Jackson’s language directly contradicts the federal requirements in two respects:

Would make the hearing optional: “They shall provide that the institution shall decide whether or not a hearing is necessary to determine whether any sexual violence more likely than not occurred.” (1)
Prohibits an advisor from posing any questions: “Any cross-examination of either party or any witness shall not be conducted directly by a party or a party’s advisor.”

Jackson’s provisions also ignore the findings of three recent judicial decisions:

In Doe v. California Institute of Technology, the court required the university to provide “an opportunity for the Committee to assess [accuser] Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by [accused student] John or the Committee itself. That opportunity did not exist here.” (2)

In Doe v. Allee (University of Southern California), the judge ruled, “When a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing).” (3)

In Doe v. Regents of the University of California (Santa Barbara) the court found that the campus committee denied the Plaintiff the opportunity to cross-examine the complainant on the effects of an antidepressant she was taking, leading the court to conclude that “[t]he Committee reached a significant finding based on nothing more than speculation.” (4)

The new Rule has been praised by a wide range of stakeholders, including the National Association of Criminal Defense Attorneys (5), Harvard law professor Jeannie Suk Gersen (6), former ACLU president Nadine Strossen (7), former Virginia governor Douglas Wilder (8), and others (9).

A survey of California voters found that many view false allegations of campus sexual assault to be a problem. 44.0% of respondents believe that such false allegations are a “big problem.” Only 14.4% viewed false allegations as “not much of a problem.” (10)

Links:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB493
Super. Ct. July 9, 2019
30 Cal. App. 5th 1036 (Cal. Ct. App. 2019)
28 Cal. App. 5th 44 (Cal. Ct. App. 2018)
https://www.nacdl.org/newsrelease/NewTitleIXRegulationsDueProcess
https://www.chronicle.com/article/The-Sex-Bureaucracy-Meets-the/248849
https://ricochet.com/podcast/q-and-a/nadine-strossen-the-aclu-and-betsy-devos/
https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html
http://www.saveservices.org/2020/08/numerous-groups-and-individuals-applaud-new-title-ix-regulation/
http://www.saveservices.org/sexual-assault/opinion-polls/

Campus Sexual Assault Sexual Harassment Title IX Victims

PR: Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

Post author By saveadmin
Post date August 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

WASHINGTON / August 18, 2020 – Sexual assault survivors, accused students, and faculty members are welcoming the new Title IX regulation, which took effect this past Friday on college campuses across the nation. Title IX is the federal law that bans sex discrimination at schools receiving federal funds. The new regulation replaces a 2011 Department of Education policy that sparked national controversy, hundreds of lawsuits, and thousands of federal complaints.

Sexual assault survivors are applauding the new regulation because it provides a detailed and legally enforceable framework for colleges to investigate and adjudicate allegations of sexual assault. Under the old policy, some victims reported the ‘brush-off’ treatment they received was more traumatic than the original assault (1).

Many of these victims complained to the federal Office for Civil Rights. As a result, the number of sex discrimination complaints increased over four-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). (2) Male victims of sexual assault are anticipating that their complaints also will taken more seriously by campus administrators.

Accused students will benefit from a restoration of fundamental due process rights, which include the right to an impartial investigation and an unbiased adjudication. Over the years, hundreds of wrongfully accused students have sued their universities. On July 29, for example, a federal appeals court reversed a lower court decision and reinstated sex discrimination charges brought by David Schwake against Arizona State University (3). The Schwake decision brings the number of judicial decisions in favor of students accused of sexual misconduct to 184. (4)

Faculty members, who found their free speech rights curtailed by expansive definitions of sexual assault, welcomed the new Rule, as well. The National Association of Scholars decried how faculty members had been “denied the chance to respond to complaints, the right to confront and question witnesses, and even the right to be presumed innocent.” (5)

On August 9, Judge John Koeltl issued a ruling that allowed the regulation to be implemented as planned on August 14. Highlighting the long-awaited improvements for all parties, the Judge noted the regulations will “benefit both complainants and respondents by providing procedural guidance for grievance procedures,” and promised complainants “greater assurance” that decisions “will not be overturned because the process did not comply with due process.” (6)

The new Rule has been praised by a wide range of stakeholders, including the Independent Women’s Forum (7), National Association of Criminal Defense Attorneys (8), Harvard law professor Jeannie Suk Gersen (9), former ACLU president Nadine Strossen (10), former Virginia governor Douglas Wilder (11), and others (12).

Staci Sleigh-Layman, Title IX Coordinator at Central Washington University, explains, “These new changes give a lot of credibility and due process and equal kind of attention to the person accused as well as the person coming forward… they put in place a process that seeks to provide due process for both sides.” (13)

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