Campus Civil Rights DED Sexual Assault Directive Department of Education Legal Office for Civil Rights Press Release Scholarships Sex Stereotyping Sexual Assault Title IX

DEI Programs Must be Eliminated to Reverse Declining Numbers of College Men


Rebecca Hain: 513-479-3335


DEI Programs Must be Eliminated to Reverse Declining Numbers of College Men

WASHINGTON / March 11, 2024 – A shocking new report was issued last week that documents 12 areas in which globally, men and boys are lagging behind women (1). These areas include education, health, homelessness, unfair treatment by the legal system, and more. In American colleges, for example, men now comprise only 42% of all undergraduate students (2).

Observers implicate a climate of anti-male hostility at college campuses (3), which can be traced to several developments in recent decades:

  1. In 1979, the Department of Education issued a new Title IX policy on women’s sports that served to eliminate many male sports teams (4).
  2. In 2011, the Obama Administration’s Dear Colleague Letter served to stereotype men as sexual predators (5). (Ironically, the Centers for Disease Control reports that men are victims of sexual assault by females nearly as often as women who are victims of rape (6)).
  3. A growing number of women’s studies programs that promote Marxist-inspired theories of “patriarchal oppression” (7).
  4. Hundreds of universities sponsor female-only scholarships and leadership programs (8).

Adding to the onslaught, colleges began to develop “Diversity, Equity, and Inclusion” (DEI) programs in the latter part of the 2010s that granted preferences to Blacks and women. Among the 10 most highly paid DEI administrators at Ohio State University, for example, nine were female (9).

Viewing DEI programs as a “mortal threat to the American way of life” (10), nine states already have enacted laws to rein in DEI programs: Florida, Mississippi, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah (11). These laws seek to prohibit colleges from having DEI offices or staff, ban mandatory diversity training, forbid the use of diversity statements in hiring and promotions, and bar colleges from considering race, sex, or national origin in admissions or employment (12).

These efforts were given a boost last June by the Supreme Court decision against Harvard College and the University of North Carolina, in which the SCOTUS ruled that considering a student’s race violates the Equal Protection Clause of the Fourteenth Amendment (13).

In theory, DEI programs and Title IX have opposite goals. While DEI seeks to afford preferences to women, Title IX seeks to end sex discrimination against men.

But in practice, the DEI mindset has infiltrated many Title IX offices. For example, the Association of Title IX Administrators, known as ATIXA, sponsored a conference on “True Equity at the Intersection of Title IX and DEI” (14). In its list of groups affected by “Inequitable Practices,” the program lists Students of Color, LGBTQIA+, and Women. But the fact that beleaguered men are facing an increasingly hostile environment somehow escaped the notice of ATIXA.

As a result, we are seeing cases like the Title IX investigator at the University of Maryland who endorsed a sexist Facebook quote by William Golding that said, “I think women are foolish to pretend they are equal to men, they are far superior and always have been” (15).

If lawmakers want to assure the Fourteenth Amendment to the Constitution is not relegated to the dustbin of history, they need to move swiftly to ban Diversity, Equity, and Inclusion programs at colleges in their state.


DED Sexual Assault Directive Department of Education Office for Civil Rights

Communications from Brett Sokolow to the Office for Civil Rights Reveal Strong Support for 2011 Dear Colleague Letter

Communications from Brett Sokolow to the Office for Civil Rights Reveal Strong Support for 2011 Dear Colleague Letter


Below are two messages from Brett Sokolow to the Department of Education in 2011 and 2012 regarding the DOE’s 2011 Dear Colleague Letter (DCL). In these messages, Sokolow repeatedly expresses his support for the controversial policy:

September 6, 2011:

  • “Our efforts were met with great skepticism until the DCL, the issuance of which now has us looking like prophets.”
  • “We are accomplishing some amazing things as the result of the momentum created by the DCL.”

February 7, 2012:

  • “the DCL signals the OCR’s strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault. Overall, the DCL addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures.”
  • “The DCL offers uniformity and clarity on many important issues related to Title IX, and promises to improve student access to equal educational opportunities. To the extent that the recently proposed Campus SaVE Act seeks to codify certain provisions of the DCL, such as mandated use of the preponderance standard, we are supportive. We agree with the aims of gender equity in education under Title IX. Towards that end, we are supportive of the powerful message expressed in the DCL and the ideas expressed in this statement.”

See entire communications, below:

Pages 35-36

From: Brett Sokolow


To: Ali, Russlynn

Sent: Tue Sep 06, 2011

Subject: Title IX Keynote Invitation

Dear Asst. Secretary Ali,

I hope you are doing well. I have a number of items I want to raise, and I was hoping we might find an opportunity to do it in person. Please let me know if my partners and I can meet with you at a time of your convenience. On a personal note, you may or may not know of our work, but we have worked diligently for the last fourteen years to advance the cause of Title IX compliance on campus sexual violence with student affairs administrators. Our efforts were met with great skepticism until the DCL, the issuance of which now has us looking like prophets. That’s credit beyond what we deserve, but our advocacy of Title IX compliance, cases and complaints has been substantial and now carries an authority we could never have dreamed it would.

Because of that, it seems like FIRE, the False Rape Society, and the Mens’ Rights folks have us both in their sights these days. I’m happy to be taking some of the pressure off of you the last few weeks, though I expect that’ll be short-lived. I thought your comments this week to the Christian Science Monitor were very helpful to many college administrators who are left wondering whether the FIRE and AAUP attacks on the DCL will carry any weight. They need to hear your pushback. Talk in the field is that Harvard and Princeton are publicly stating that they intend to contest the imposition of the preponderance standard, and their codes of conduct are still publishing higher standards as of the start of this semester, post-DCL and with investigations ongoing. Resolving those complaints should bring about some greater finality, but it is fascinating to watch so many campuses making fundamental changes all at once. Historic, really.

If you are looking for a vehicle to carry the message further, we are hosting a campus sexual misconduct web stream on Sept. 12th. There will be hundreds of campus conduct officers participating. If we can share a written, live or recorded word from you or OCR, we’re happy to make space for you.

On another front, I have put your name forward to both ACPA and ASCA, two national higher education associations that have deep interest in Title IX, and I expect they have been in touch to invite you to their conferences. I hope you can attend or send an OCR representative.

Finally, you may be aware that we launched ATIXA in mid-August, the Association of Title IX Administrators ( We have 225 members in less than a month, which is very exciting. We are accomplishing some amazing things as the result of the momentum created by the DCL. We are planning our first annual conference in 2012 to coincide exactly with the 40th Anniversary of Title IX. We have a substantial event planned for June, with a commemoration reception on the anniversary. Please consider this my formal request to have you preside over this reception and/or provide a keynote address at the conference in Chicago. We have a decent budget to make this event a centerpiece of national Title IX anniversary events, and hope OCR will tie some of its efforts to ATIXA’s, whether it be by personal appearance, content sessions at the conference, a platform to issue new Guidance, etc.

You may also know that I am trying to include OCR representatives in the Title IX Coordinator Training events we are doing around the country. Gayle Sakowski in the San Francisco office had to pull out of our early August event in St. Louis at the last minute, but we have upcoming events in Philadelphia, San Antonio and Atlanta. We’re trying to work with a few OCR offices, but I wonder if there is a way we could orchestrate a consistent OCR representative (as these events are not regional in attendance) to share a broader perspective on compliance and enforcement than we can?

Sorry to dump all of these inquiries on you at once, but hopefully they can serve to form a bridge of communication between us that is beneficial to advancing Title IX compliance in schools and colleges. Again, please let me know when we might be able to schedule a meeting in Washington or another location that is convenient for you.


Brett A. Sokolow. Esq. Attorney-at-Law

Managing Partner, The National Center for Higher Education Risk Management (

Executive Director, The National Behavioral Intervention Team Association (

Executive Director, The Association of Title IX Administrators (


Pages 38-41

From: Nancy Hogshead-Makar

Sent: Tuesday, February 07, 2012 6:52 PM

To: OCR; Ali, Russlynn

Subject: Support for the April DCL on Sexual Harassment and Violence under Title IX

Dear Assistant Secretary Ali,

Please find the attached letter, signed by 47 organizations, in support of the April 4th, 2011 “Dear Colleague Letter” on sexual harassment and violence under Title IX.

Warm regards, Nancy Hogshead-Makar

Senior Director of Advocacy, Women’s Sports Foundation

8787 Baypine Road

Jacksonville, Florida 32256

904 – 680 – 7784 w

904 – 307 -4293 c

904 – 680 – 7771 f



[Text of Letter – entire letter with footnotes is available at ]

February 7, 2012

[Letterheads of the Women’s Sports Foundation and ATIXA: Association of Title IX Administrators]

Russlynn Ali

Assistant Secretary for Civil Rights

Office for Civil Rights United States

Department of Education

Lyndon Baines Johnson Department of Education Building

400 Maryland Avenue, SW Washington, DC 20202-1100

Sent by E-mail, U.S. Mail and Facsimile (202-453-6012)


Dear Assistant Secretary Ali:

On April 4th, 2011, the US Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter,” (DCL) which explained schools’ responsibilities for addressing campus sexual violence under Title IX. 1 While the letter does not amend Title IX or depart from previously issued regulatory guidelines, it provides depth and explanatory content on compliance standards. Announced jointly by Vice President Joe Biden and Secretary of Education Arne Duncan, the DCL signals the OCR’s strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault. Overall, the DCL addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures. The DCL also notes in particular that complaints against athletes must be subjected to the same rigorous standard as when the accused individual is a non-athlete.

Certain provisions in the DCL have been the subject of public controversy. This statement is intended as a response to that controversy and as a declaration of support for the DCL as a whole.

The two main provisions of the DCL that have generated the most debate are:

  1. A provision recognizing that schools must apply a preponderance of evidence standard of proof when assessing the merits of a complaint of sex-based discrimination, harassment and/or violence;
  2. A provision requiring equitable treatment of victims and accused students.

Each of these will be addressed in turn and considered through the lens of Title IX’s mandate requiring prompt, equitable and effective redress and remedies.


Proof by a “preponderance of the evidence” means the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.”  Contrary to a few highly publicized claims, the DCL’s requirement of a preponderance of evidence standard is neither new nor controversial. Indeed, according to Russlynn Ali, Assistant Secretary for Civil Rights at the Department of Education, approximately 80% of colleges and universities were already using the standard prior to the issuance of the DCL.  This reflects, in part, the OCR’s consistent message to school over many years and administrations that they must apply a preponderance of evidence standard. Prior to the issuance of the DCL, a minority of schools applied a “clear and convincing” or “clear and persuasive” evidence standard. This much higher level of proof had already been rejected by the OCR long before publication of the DCL.

The preponderance standard is the only equitable choice under Title IX as it avoids the presumption, inherent in a higher standard of proof, that the word of a victim is less weighty than the word of an accused individual’s denial. It also enables school officials to render more decisive findings with greater confidence, given that a determination that one individual is more credible than another will support a finding. This is important given widespread criticism of school policies that enable decision-makers to claim they “believed” the victim, thus offered her counseling services, etc., but did not believe her enough to justify a finding against the assailant.

While Title IX’s equity mandate does not require that similar violations receive the same punishment, it does require that discrimination based on sex be subjected to the same policies and procedures as other forms of discrimination. As institutions routinely apply a preponderance standard to allegations of harassment based on race, ethnicity, disability, etc., it would be inequitable in the extreme not to apply the same standard to matters involving discrimination based on sex.

Because the preponderance standard allows for high confidence in decision-making, it better enables schools to take effective steps to prevent the future recurrence of discriminatory behavior, and to repair harm done to the school community.

Finally, a preponderance standard is appropriate because it is the applicable standard of proof in civil litigation when issues of sexual harassment and assault are redressed. If civil courts must apply a preponderance of evidence standard when holding schools and/or individuals accountable for negligence and intentional tort claims and civil rights violations, then schools should be obligated and empowered to protect their communities under the same standard. To conclude otherwise would ironically render victims more vulnerable to violence and harassment on college campuses than in the relatively less regulated “real” world simply because a lower standard will be less effective in deterring and vetting out harmful behavior within the community. Furthermore, with the same standard in place for school-based proceedings and civil justice matters, students may be less likely to file lawsuits because they will no longer perceive the civil justice system as affording a more favorable venue for legal redress.


Fair treatment of victims and accused students is consistent with the explicit mandate that schools adopt policies providing for “equitable” redress. The DCL is clear that the rights, benefits, privileges or opportunities typically extended to accused individuals should also be extended to victims. For example, if an accused individual is provided with a right to an advocate, the same benefit should be made available to the victim. Equity also requires that relevant investigative materials be provided by the school to the accused individual and to the victim, such that they have equal opportunities to prepare and respond. The victim should neither be burdened with the responsibility of serving as a kind of “prosecutor” during the process, nor be relegated to the role of mere witness with no individual rights at stake. Title IX obligates the school, not the victim, to take all responsibility for the remediation of harm by providing for the prompt, equitable and effective redress of complaints.

A minority of schools have adopted policies and procedures that mimic criminal justice proceedings. These school procedures afford greater rights to the accused student, with few if any substantive or enforceable rights for victims. Applying criminal justice rules to school-based proceedings is not appropriate because schools are not the government and are not vested with the power to deprive an individual of a liberty interest akin to the nature of liberty at stake in criminal courts. Moreover, unlike the criminal justice system, the primary purpose of schools under Title IX is to ensure equal access to education, not to deter, punish and provide rehabilitation for accused and convicted criminals.

This does not mean schools should be unfair to accused students or that the interests at stake for accused students are not important. Indeed, the U.S. Supreme Court has held that public schools must provide some degree of due process to students prior to the imposition of punishment that rises to a level of suspension or dismissal.  The Court has cautioned, however, that the student’s interest is much less weighty than that which is at stake for criminal defendants. Thus, far less “process” is required in school-based proceedings compared to the protections of due process afforded the accused in criminal justice matters.

At the same time, schools must act to protect students from discrimination, harassment, criminal victimization and other types of harm. In certain circumstances, schools are even obligated to take action prior to affording an accused individual notice and an opportunity to be heard, as when a “student’s presence endangers persons or … threatens disruption of the academic process…”

Equity does not mean applying exactly the same rules to victims as accused students. For example, it is inappropriate for schools automatically to issue mutual “no-contact” orders between victims and offenders as this restrains a victim’s freedom of movement and access to campus facilities without justification. Likewise, a victim should not be made to adjust her living conditions and/or be ordered to stay away from the offender on the grounds that requiring the accused individual to adjust his circumstances will violate his due process rights. The DCL makes clear that imposing any such burdens on a victim is inequitable and may constitute new harm under Title IX because the victim may endure additional suffering that interferes with her ability to participate in educational programs.

Finally, equity requires schools to consider allegations that an accused offender has committed multiple similar offenses. In criminal proceedings, this so-called “pattern evidence” can be excluded because judges are duty bound to apply criminal Constitutional rights that are not applicable in school-based proceedings. The special nature of a school community renders “pattern evidence” far more relevant because schools can be held liable to victims if they are “deliberately indifferent” to known risks of harm on campus, or fail to meet the duty of reasonable care for foreseeable harm. Likewise, consideration of “pattern evidence” is relevant to a proper assessment of whether class-based harm has occurred. This is an especially important factor in sexual assault cases because 90% of campus assaults are committed by repeat offenders. Indeed, failure to consider such evidence could inhibit or prevent equitable consideration of specific cases and interfere with a school’s duty to redress discrimination directed at protected classes on campus.

Other Issues


A question was raised as to whether the DCL violates the Administrative Procedures Act (APA), which requires government agencies to propose new regulations before implementing them, and provide for a period of public commentary. This objection is inapt as the DCL is not a “new regulation” and the OCR has always had authority to enforce Title IX. The DCL is not a regulatory scheme, but rather, serves as a clear statement of the OCR’s established positions on issues of promptness, equity, effective redress, risk management and legal consistency.


While there is no fixed period of time within which complaints must be finally resolved, the DCL is clear that “promptness” is not satisfied if a school delays conducting an investigation and/or holds off convening a hearing until the criminal justice system has run its course. In fact, a school will be found to have violated Title IX’s promptness mandate if it declines to act because it is awaiting either the completion of a criminal investigation, prosecutorial decision as to whether charges will be filed and/or a final judgment by judge or jury. The DCL requires promptness as to the initial investigation and hearing process, as well as to post-decision appeals, rehearings and requests for reconsideration. In short, promptness means prompt as to the final resolution, including all appeals and post-decision “motions,” and the DCL indicates that a school should reach its full and final resolution within a 60-day timeframe.


The DCL requires that athletes accused of sexual violence be subject to the school’s regular Title IX disciplinary process, without preferential treatment, softer sanctions or tracking of misconduct and disciplinary action solely through the athletics department, as is the policy on some campuses. In addition, the DCL singles out athletes and athletics departments as audiences worth targeting for preventive education programs, and recommends that schools develop specific sexual violence materials within student-athlete handbooks. Such material should include the schools’ policies, rules, and resources for students, faculty, coaches, and administrators. The materials also should include resources for student-victims looking for help, including specific information about their rights and the responsibilities of teammates and employees of athletics departments regarding reporting and other obligations when sexual assaults are reported or reasonably known.


We believe the April 4th, 2011 Dear Colleague Letter advances the inherent societal good that gender equity represents. The DCL offers uniformity and clarity on many important issues related to Title IX, and promises to improve student access to equal educational opportunities. To the extent that the recently proposed Campus SaVE Act seeks to codify certain provisions of the DCL, such as mandated use of the preponderance standard, we are supportive. We agree with the aims of gender equity in education under Title IX. Towards that end, we are supportive of the powerful message expressed in the DCL and the ideas expressed in this statement.


Brett Sokolow, Esq.

Executive Director, ATIXA

The Assoc. of Title IX


[And 46 other organizations]

Campus DED Sexual Assault Directive Title IX

Williams College Legal Liability Insurance Policy

Williams College Legal Liability Insurance Policy


December 14, 2021

Following are the key provisions in the Legal Liability Insurance Policy issued by United Educators Insurance to Williams College of Massachusetts, dated July 1, 2015:

Coverage: Claims-made (covers an insured for all claims, regardless of when the claim event occurred)

Limits of Liability:

  • Each claim: $25,000,000
  • Annual aggregate: $25,000,000

Premium: $162,737

Defense Counsel Provision: Split Defense Counsel

Self-Insured Retentions:

  • Governing Board members who cannot be lawfully indemnified: $1,000
  • Wrongful employment practices: $150,000
  • Each other claim: $150,000

Defense Cost Hourly Rate: Not to exceed $325 per hour

Definition of Wrongful Act: Includes “failure to grant due process” and “invasion of privacy or humiliation”


DED Sexual Assault Directive Department of Education Sexual Assault Sexual Harassment Title IX

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness.


May 13, 2021

On April 4, 2011 the Department of Education issued its notorious Dear Colleague Letter on sexual violence. Within months, SAVE wrote the Department urging that the unlawful policy be withdrawn. Following intense public criticism and numerous lawsuits against universities, on September 22, 2017 the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence.

One of the most important milestones in the six-year quest for campus justice was a Statement signed by 28 faculty members at Harvard Law School (HLS). The faculty members wrote “to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.”

But how did this Statement come to pass? On September 10, 2014, faculty member Richard Parker circulated an internal memo that began with the words, “We are a law school.” The memo outlines six constitutional values that are threatened by draconian campus policies:

  1. Procedural Due Process
  2. Equal Protection / Gender Discrimination
  3. Confrontation
  4. Coerced Self-Incrimination
  5. Free Speech
  6. Academic Freedom / Free Association

A month later, the Harvard Statement was published. And the rest is history.

Professor Parker’s entire memo is reprinted with permission, below.


September 10, 2014

To:         The Faculty

From:    Richard Parker

We are a law school.  As an institution, we have a long and deep tradition of both integrity and embarrassment.  Our moments of collective integrity have come when we have thought and acted as a law school.

When our committee says that the Interim Sexual Harassment Policy and Procedures  “meet legal requirements,” we know it’s never so simple.  Where, in the committee’s report, is the grappling with ambiguity and argument that is the essence of doing law — and that we demand of our students?   Is there no tension among “legal requirements”?   Where is discussion of constitutional “requirements” or values?

When the dean says, “the discretionary ‘space’ for revisions is narrow,” we know enough, as law teachers, to be … respectfully skeptical.

Once again, we are indebted to Betsy and Janet and Phil for waking us up. For now, I won’t address the proposal of a disruption of our longstanding institutional processes – our small-c “constitutional” understanding of our responsibilities.  Nor will I address the departures of the “policy” from the Supreme Court’s reading of Title IX.  Instead, I’ll focus on big-C Constitutional values and requirements.  And I won’t discuss them in depth.  My aim is just to flag some issues and encourage you to engage, on your own as lawyers, with the legal rat king we face.

I’ll conclude with a few thoughts on the part we now ought to play as a law school — the only one at Harvard University.


[1] Procedural Due Process

Wikipedia entry on Kangaroo Court: “A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as ‘a mock court in which the principles of law and justice are disregarded or perverted’.”

The Supreme Court tends to determine the process that is “due” along a sliding scale.  It weighs administrative interests and the interests of one party against whatever is at stake for the other party along with our traditions of “law and justice.” Sometimes those traditions short circuit the weighing of interests [see Fuentes v. Shevin], but most often it is the interests of the “defendant”, so to speak, that focus the analysis. [see Goldberg v. Kelly]  In the context of a SH proceeding, those interests are huge – so huge as to amount to a constitutionally protected “liberty” interest.  [See Board of Regents v. Roth]

Please compare the procedures required in Goldberg – what were at stake were welfare benefits — with the proposed SH procedures:

The Court insisted on procedures with “ancient roots.”  It emphasized the right to “an effective opportunity to defend.”  That required, inter alia, notice of the “evidence” against one, especially vital when “credibility or veracity are at issue”; oral participation in a hearing before the decision-maker; cross-examination of witnesses [see below]; an “impartial decision-maker” – who must not have participated in making a prior determination in the case.

On every one of those counts the proposed procedures are either utterly ambiguous or fall short.

Of course, the SH “complainant” also has weighty interests at stake, and they may cut, to some extent, against certain traditional protections for the “respondent.”  I’m not saying the resolution of this issue is a slam dunk.  But if you think carefully about each point, I believe you’ll conclude that, on any fair balance, removed just a notch from the politics of the moment, the proposed procedures amount to a disappointing denial of due process of law

[2] Equal Protection/ Gender Discrimination

The SH policy and procedures are gender-neutral on their face.  But their probable effect and the proclaimed purpose behind them are not.  Hence, they discriminate by gender and must be subjected to “exacting” scrutiny under long-established Equal Protection norms.  [See Personnel Administrator v. Feeney]  It is no less well established that gender discrimination “against” men must be subjected to no less “exacting” scrutiny than gender-discrimination “against” women.  [See Craig v. Boren]

To assess the gender discrimination worked by the proposed procedures before us, compare them with [a] those followed by other institutions in comparable contexts and [b] those followed by HLS in comparable contexts [eg, plagiarism] and in similar contexts in the past.  And, most important, compare [c] the procedural opportunities provided “complainants” with those provided “respondents”.

Among the provisions to be evaluated in this light should be the lower standard of proof, the “complainant’s” opportunity to remain anonymous, the truncated role of the Ad Board and the faculty, the limited opportunity for appeal and the stunning finality of the Final Report.

As we all know, the gender bias of the proposed procedures is justified as necessary to make up for a contrary gender bias embedded in our culture and practices – a sort of affirmative action argument, though having to do with the distribution of punishments rather than benefits.

That similarity and that difference ought to invite your further scrutiny.

[3] Confrontation

In the context of terminating welfare benefits, the Goldberg Court said of the opportunity to confront witnesses, especially one’s accuser: “While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.”

Under the proposed SH procedures, the “respondent” is denied any such opportunity!  [Indeed, it’s possible that the “complainant” may remain anonymous!]`

Can it be that the Investigating Team, conducting individual

Interviews, is so reliable that we should dispense with this vital feature of adversary procedure?  Will they be so effectively “trained” as to guarantee their reliability?  And what does that mean?  I had thought a faculty full of lawyers was “trained” in a relevant respect.  Can we be sure that the special SH “training” of those to whom we’re being asked to give up most of our responsibility won’t be … ideologically biased?

Or is this extraordinary feature of the proposed procedures driven by an extraordinary claim: the weakness/victimization of “complainants”?  Most of them?  Do we really believe that of our female students?  Could it justify potential ruination of our male students’ lives?  Do we have no “space” to resist and revise that?

[4] Coerced Self-Incrimination

Under the proposed procedures, when the Investigative Team notifies the “respondent” of the allegations against him, he has a week to submit a written “response”.  Then, the Team will “request” separate “individual interviews” with him and the “complainant” and possibly with witnesses.  They will also “request” separate a “follow-up interviews” with both the principal parties. They will then make their findings of fact and law, giving the parties a week to respond to it in writing.  Then, they complete their Final Report.

Because many [or most] cases will be “she said/he said” disputes, he’ll know that he is in dire peril if he declines the “request” to respond.  If the Team has only the “she said”, and a refusal to offer any ‘he said”, they probably will — the proposed procedures include no equivalent of the Griffin safeguards — count the latter against him.  He will feel under terrific pressure — time pressure added to the prospect of punishment up to expulsion — to provide some “he said”… which may wind up dooming him, at least, to those very punishments.  Long ago, in a situation involving discharge from office, the Supreme Court held that this kind of pressure, outside the criminal process, amounts to “coercion”.  [See Garrity v. New Jersey]

This is, of course, the same kind coercion employed by Joe McCarthy and General Electric to force GE workers to speak in the 1950’s.

The proposed SH procedures do touch on the possibility of formal “incrimination” resulting from such “coercion”.  The Final Report and/or evidence gathered by the Team may very well find its way to a DA.  What the University’s proposed procedures say about this prospect is interesting.

Twice, the University says that [a] “when the allegations, if true, might constitute criminal conduct [b] the respondent “is hereby advised to seek legal counsel before making written or oral statements”.  The key words are “might” and “hereby.”  The latter makes it clear that the “trained’ Officers and Investigators will not offer him – he is as much our student as she is – any such advice.  [Why not?]  And that makes it clear that he — especially during the week that he has to respond after first receiving the allegation – will be at sea and quite probably unable to figure out the former and lack time to find counsel anyway.

There is one other relevant provision.  There, the University says that, if an allegation “includes behavior or actions that are under review by law-enforcement authorities,” the Team may go ahead and impose “interim measures” [eg, suspension] but will “assess and reassess the timing” of its investigation “so that it does not compromise the criminal investigation.”  Is this reassuring, from our lawyer’s point of view?  The key word may be “are.”  Isn’t the real problem that the Team’s interviews and Final Report may play into – and distort — a later criminal investigation?  Why is nothing said about that?

[5] Free Speech

The University’s definition of “sexual harassment” includes “verbal” and “graphic” conduct “of a sexual nature” that is “unwelcome” – which it defines, inter alia, as “undesirable or offensive”.   [It need not be “persistent or pervasive” creating a “hostile environment”.  That goes beyond the reach of Title VII.  Is there precedent for it? ]

Anyone who knows anything about First Amendment law knows that this text flies flagrantly in the face of established general free speech norms.

It must be that the University hopes to operate in a special “domain” where such norms may be overridden.  [See Post, Citizens Divided]   But the extent of the overriding cannot be unlimited.  It must, presumably, be tailored to good reasons for setting up the special “domain” in the first place.  And those who “manage” it should exercise wise “discretion” in deciding how far to go in suppressing speech.

How different, in relevant respect, is a college setting from a high school setting – and a graduate school from a college setting?  What sorts and degrees of harassment have been common [how common?] in each type of school? In the whole USA?  In each individual school?  To what degree, for instance, has “unwelcome” verbal conduct, absent a hostile environment, been a problem?

Did the University drafters care?  Our law school committee?

Our committee does offer a sort of proviso.  “The policies and procedures,” it says, “uphold traditions of … uncensored debate on matters of public concern.  They effect no compromise of freedom of thought, inquiry, or debate.  Rather, they seek to ensure an environment in which education [etc] … are not corrupted by sexual and gender based harassment.  Nothing in them shall be construed to abridge … principles of free speech’.

What will that be taken to mean?  Its contrast – particularly, the contrast of the fourth sentence — with the definition of [non-environmental] “verbal harassment” is stark, to put it politely.  Most probably, it will simply put off debate to each individual case.  Is that the best we can do? … Oh, I forgot that since the Team’s Final Report is Final, we, the faculty, will not be allowed to engage in such debate …

How different is all this from the old “speech codes” which bit the dust under “principles of free speech”?  [See also RAV v. St. Paul]

[6] Academic Freedom/Free Association

Several colleagues signed a brief arguing that the Solomon Amendment – pressuring us to allow military recruiters on our campus – violated principles of free association and academic freedom.  Their argument failed.  [It was, I believe, extremely weak since the Amendment’s impact on those values was too small.]  [See Rumsfeld v. FAIR]  We should look forward to hearing from those colleagues now.

Later, I’ll touch [below] on the government’s “conscription” of private schools of higher education to adopt and administer prescribed policies and procedures.  This intrusion is plainly far broader and far deeper than any effected by the Solomon Amendment.

What’s more: enforcement of OCR’s directives will involve official investigations of these schools – like the one now targeting HLS.  The investigations, in turn, will scoop up emails and memos by and to faculty members – like this one! – debating general matters, taking positions that may be unpopular, even “incorrect.”  Thus they will invade “the intellectual life of a university” and do “grave harm”.  [See Sweezy v. New Hampshire]

Again, our committee applies its wan proviso to “academic freedom.”  [See above]


So far, I’ve addressed constitutional “values” – which should carry great weight in a law faculty.  Now: Is HLS, as a private school, subject to constitutional “requirements” vindicating those “values”?

Throughout the country, male students at private universities – most recently, Brandeis — are filing lawsuits challenging SH policies and procedures on grounds, inter alia, of gender discrimination and denial of due process.  More and more and more are on the way – coming our way.

I’ve been asked: Where is the “state [ie, federal government] action”?   In my view, this is no problem.

Since the 1970’s, “state action” issues have tended to break into three parts.  [a] Who “initiated” the “action” in question?  Typically, it has been a private party – which sets up the issue of how to tie it to the state.  But in this case it is the federal government itself that initiated the SH policy and procedures!

[b] How “specifically” has governmental power been used to effectuate the challenged aspects of the “action” in question?  Has government participation been “focused” specifically on those aspects?  In our case, the government has indeed specifically prescribed many of the features of the SH policies and procedures [eg, the preponderance standard] that are being challenged.  To be sure, the University and HLS seem to want to add further features which are probably unconstitutional.  But they have simply been elaborating on federal instructions.  As quiet collaborators?

[c] … Or in fear of threatened federal penalties? This goes to the third issue: how much governmental power – intruding into the private institution – has been applied? In Harvard’s case, the threatened penalties are massive.  And the federal intrusion is astonishing – to borrow a term from the law of federalism, the government proposes to “commandeer” not just the internal policymaking process, but also the internal disciplinary process, of private colleges and universities.

[In April 2014, Justice Kennedy’s plurality opinion in Schuette interpreted past “state action” decisions even more broadly – so that governmental “encouragement” or “authorization”, rather than enforcement,” may suffice.]

Try to imagine a more blatant instance of “state action” than the one before us …

The upshot:  We will be sued.  We probably will lose.  [Our SH procedures and policies will go the way of the “speech codes” of yesteryear.]  We deserve to lose.  Much worse, we are actually inviting this constitutional condemnation!



Harvard Law School’s history is full of stories of resistance –resistance by faculty members to the “authorities” in the name of legal values, often values of civil liberty.  Some are about challenges to the dean.  Think of Frankfurter and Pound.  Or Byse and Griswold.  As often, the stories – the ones that last – are about challenges to the University governing boards and President.  Think of Frankfurter or Chaffee or Howe or Dershowitz.  “The Trial at the Harvard Club.”

My point doesn’t have to do with the details or even the truth of the stories.  Instead, it has to do with their staying power, their power to make many faculty members and alumni a bit proud to be associated with the School.  These are the stories we are likely to tell when recruiting new students – not the ones about our passivity, our helpful rule-following.  Not the ones where we act as obedient “employees” of the Central Administration rather than tenured “officers” of the University.  Not the ones where we abandon our tradition of institutional autonomy.  And not the ones where we show we don’t take seriously – because we don’t act on – the values we pretend to take seriously in our classes.

There is one story in particular that we might profit from now.  It has to do with a concerted effort by the federal government to reach inside colleges and universities in order to correct a pathology believed to fester there.  It was an effort that involved conscription of Harvard University officials, who then commandeered its processes and pressured the schools to fall in line.

It was, of course, in the early 1950’s.  The pathology was the supposed “communist infiltration of education.”  Instead of the Education Department, it was the FBI that was the point of the federal spear.  The officials conscripted included both President Pusey and McGeorge Bundy, dean of the college.  The appointments process was commandeered, going so far as to throw out lowly lecturers.  [See Sigmund Diamond, Compromised Campus]  The intrusion extended into the Law School – resulting, most notoriously, in the removal from the law review of a student who said he’d refuse to answer certain questions about his political activity.

The dean was Erwin Griswold.  His actual behavior in the circumstance is not entirely clear.  In fact, it appears that in the law review affair he played the good soldier.  But shortly thereafter he went to Worcester and gave the first of a series of 1954 speeches explaining and justifying the exercise of rights under the Fifth Amendment.  In 1955, he published them as The Fifth Amendment Today.  It made his national reputation.  Google him: he became a man of “courage,” “a champion of individual liberty.”  Upon his death, HLS issued a statement recalling him as “a foe of McCarthyism”.  [Print the legend.]  Imagine if he had done more!

My point, again, isn’t to equate the SH policy and procedures with McCarthyism.  It is, instead, to speak to our sense of self-respect, our integrity as a law school.

If you agree with some of what we critics have to say about the proposed SH policy and procedures, please be aware that we can resist.  We ought to.































Campus DED Sexual Assault Directive Department of Education Sexual Assault

Did the 2011 DCL Contribute to University Failures in Staff-on-Student Sex Scandals?

Did the 2011 DCL Contribute to University Failures in Staff-on-Student Sex Scandals?


April 26, 2021

Much has been written about the failures of the Dear Colleague Letter issued by the Department of Education in 2011, including:

  1. No demonstrated improvement in the reporting of sexual assault
  2. An increase in the rate of sexual assaults
  3. Lawsuits by wrongfully accused students
  4. Millions of dollars spent by university Title IX programs

Three highly publicized cases of staff-on-student sexual abuse suggest another shortcoming of the DCL policy:

Michigan State University: “The U.S. Education Department fined Michigan State University $4.5 million in September for failing to respond to sexual assault complaints against Nassar. The same day, MSU President Samuel Stanley Jr. announced the resignation of Provost June Youatt, saying the investigation findings showed she and former President Lou Anna Simon “failed to take appropriate action on behalf of the university to address reports of inappropriate behavior and conduct.” according to an account of the incident.”

University of Southern California: “Since the release of the initial Los Angeles Times article published on May 16, 2018, hundreds of USC students and alumni have come forward with allegations of sexual abuse, assault, battery, and harassment. Over the years, many patients reported that Tyndall was unprofessional, creepy, or made them feel “uncomfortable and violated.” There were multiple requests to change providers and not see Tyndall again. Complaints were generally addressed internally by USC Engemann Student Health Center executive director, Larry Neinstein.”

UCLA: “James Heaps, 67, a one-time gynecologist who is at the center of the scandal at UCLA, also still faces criminal charges for his actions during his 1983-2019 career at the university, in its student health center and at its medical center. The Los Angeles Times reported that the doctor was first arrested  in June 2019 for sexually touching two patients in 2017….The UC system said that it has improved procedures and will undertake more reforms as part of the class-action settlement, the newspaper reported:

“UCLA agreed to create a new process for investigating allegations of sexual assault, harassment, and misconduct. It must also implement a formal chaperone policy for patients. It must also initiate a training program on boundaries and ensure that patients are informed about reporting misconduct.”

While the staffers’ sexual abuse of students began during the years prior to the issuance of the 2011 DCL, university officials consistently failed to take appropriate actions in response to student complaints made during the years following release of the DCL. This reveals that the Dear Colleague Letter did not improve university responses to complaints of staff-on-student sexual abuse. Indeed, the hysteria about student-on-student sexual assault, which permeated campuses during the past decade, may have diverted attention from the burgeoning problem of staff-on-student sexual abuse.

DED Sexual Assault Directive Office for Civil Rights Victims

PR: Sexual Assault Survivors Reveal Widespread Mistreatment at the Hands of Campus ‘Kangaroo Courts’


Contact: Rebecca Stewart

Telephone: 513-479-3335


Sexual Assault Survivors Reveal Widespread Mistreatment at the Hands of Campus “Kangaroo Courts”

WASHINGTON / August 25, 2020 – Over the past nine years, male and female victims of campus sexual assault have reported numerous instances of mistreatment and neglect by university officials.  The persistent problem led survivors to file complaints to the federal Office for Civil Rights.  Over the past decade, complaints to the OCR increased over four-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). [1] The problem is reflected in the growing number of lawsuits filed against universities, with 650 claims filed to date. [2]

Both female and male victims of sexual assault have been shortchanged by their universities.

One female student at the University of Wisconsin-Whitewater charged, “I don’t think anybody should be treated the way that I was. It was worse than the assault, a lot worse. I regret with everything, coming forward and saying anything.” [3]

A male victim at Drexel University reported his sexual assault to campus administrators at least seven times, but the university never acted on his complaint. He stated one university official dismissed his rape claim as “ludicrous.” [4]

Penn State, Michigan State, and the University of Southern California (USC) have been in the news in recent months for gross mistreatment of victims:

  • At Penn State, the Office for Civil Rights identified several cases in which the university, after receiving a complaint of sexual assault, delayed its investigation for so long that the complainant chose to abandon the process.  The OCR report noted, “(T)here are serious inadequacies in how the University treats both complainants and respondents in cases of alleged sexual harassment that need correction in order to bring the University into compliance with Title IX.” [5]
  •  Michigan State is facing a possible U.S. Supreme Court challenge after three former students petitioned the court to review their Title IX case and reverse the lower appellate court decision. The original lawsuit cited lack of adequate response to their reports of sexual assault. [6]
  • The University of Southern California is facing a federal lawsuit after California Court of Appeal reversed a trial court decision and overturned a male student’s expulsion, ruling that his Title IX proceeding was “unfair.” The student, a former USC football star, is now forging ahead with a seven-count federal lawsuit on the grounds of “breach of contract, infliction of emotional distress, negligence and selective enforcement of Title IX.” [7]

A SAVE analysis documents seven ways by which the new Title IX regulation supports and assists complainants. [8]

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

Universities now have a legally enforceable duty to respond to victim complaints in a timely and thorough manner and to investigate allegations of sexual assault, domestic violence, dating violence and harassment. No longer should any survivor of sexual assault have to experience mistreatment and neglect from university administrators.










Campus DED Sexual Assault Directive Due Process Sexual Assault

PR: Urgent Need for Lawmakers to Stop Campus ‘Kangaroo Courts’

Contact: Rebecca Stewart

Telephone: 513-479-3335


 Urgent Need for Lawmakers to Stop Campus ‘Kangaroo Courts’

WASHINGTON / February 3, 2020 – As evidence continues to mount of inept campus administrators and biased adjudications, SAVE urges lawmakers to take prompt steps to reform college sex tribunals, sometimes referred to derisively as “kangaroo courts.”

The federal Department of Education issued in 2011 a policy directing campus disciplinary committees to handle all allegations of sexual assault, including felony-level incidents (1). But problems with the new approach became immediately obvious, as the number of complaints to the federal Office for Civil Rights soon increased by more than five-fold (2).

Three recent incidents again illustrate the urgent need for reform:

On January 23, it was reported that the University of Idaho agreed to a $160,000 payment to Mairin Jameson. When Jameson had been sexually harassed and assaulted by a member of the school’s football team, school officials told her the school had no authority to act (3).

Two days later, federal Judge Michael Shea ordered the University of Connecticut to reinstate a male student who had been subjected to a biased campus hearing. The judge found the campus disciplinary committee denied the male student “the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe’s witnesses on whose statements the hearing officers chose to rely.” (4)

Then on January 26, Columbia University in New York was in the news when campus adjudicators failed to consider as evidence a 30-minute audio recording suggesting the female was the perpetrator, not the victim, of a sexual assault. Former student Ben Feibleman is now suing Columbia U. for $25 million (5).

The Dept. of Education is expected to issue a new sexual assault regulation in the near future. The Independent Women’s Forum recently announced its support of the new policy, saying, “Campuses have a legal and moral obligation to investigate and address claims of sexual harassment and assault; but they also have an obligation to investigate claims objectively, without presuming the guilt of the accused, and with respect for due process.” (6)

This week, SAVE is launching a month-long campaign designed to raise awareness among lawmakers, campus administrators, and the public about the serious injustices confronting college students. The campaign hashtag is #StopKangarooCourts.




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

Campus DED Sexual Assault Directive Due Process Office for Civil Rights Press Release

PR: Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

Contact: Christopher Perry

Telephone: 301-801-0608


Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

WASHINGTON / August 14, 2017 – Last week the University of Georgia Board of Regents approved wide-ranging changes in the sexual assault policies at the campuses it oversees. The revisions were designed to strengthen oversight, assure a consistent process for all cases, and place more emphasis on prevention and education (1).  The changes were made in response to developments in the Title IX landscape that are occurring across the nation.

Stop Abusive and Violent Environments (SAVE) has identified eight shifts in the policy landscape that have emerged in the past 12 months. SAVE invites administrators to review these developments and make necessary updates to campus policies:

  1. State legislation. Responding to reports of unconstitutional practices on campuses, state lawmakers have introduced 22 bills designed to restore free speech or due process protections to college students. To date, eight of these bills have been passed into law in Colorado, Nevada, North Carolina, North Dakota, Tennessee, Utah, Vermont, and Virginia (2).


  1. Liability risks. The number of lawsuits by accused students is on the rise. Since 2013, judges have issued rulings on 55 lawsuits filed against universities that were at least partly favorable to the accused student (3). Last week it was reported that an average of $187,000 is spent per case filed by accused students (4).


  1. “Victim-centered” investigations. Investigations based on the “always believe the victim” model are often implicated in lawsuits by accused students against universities. An analysis of these lawsuits concluded that “victim-centered” approaches “are inconsistent with the most basic notions of fairness, repudiate the presumption of innocence, and are likely to lead to wrongful determinations of guilt.” (5)


  1. OCR complaints by identified victims. Following issuance of the Dear Colleague Letter in 2011, thousands of identified victims have filed complaints with the Office for Civil Rights alleging mistreatment by campus officials. Some identified victims claimed their experience with the campus adjudication process was more traumatic than the original assault (6).


  1. Administrator concerns. John McCardell, Vice Chancellor of the University of the South at Sewanee, Tennessee, recently charged the OCR’s Dear Colleague Letter has “imposed on entities ill-trained or equipped for the task, a quasi-judicial role, with the implication that ‘justice,’ however defined, can be satisfactorily rendered through processes that cannot possibly replicate a genuine legal proceeding.” (7) An Inside Higher Ed article on the annual meeting of the National Association of College and University Attorneys reported, “Many college and university officials felt overregulated by the Obama administration, and have expressed interest in seeing that oversight eased.” (8)


  1. OCR investigations. In June, the Office for Civil Rights announced that it will narrow its investigational approach to focus only on the specific allegations of the complaint, not on cases that have been previously resolved by the college (9).


  1. Expert reports. Five independent reports have recently called for an overhaul of the campus adjudication system (10):
  1. American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
  2. SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
  3. NCHERM Group: Due Process and the Sex Police
  4. American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
  5. Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It


  1. Editorial criticisms. Thus far in 2017, over 300 editorials have been published at various newspapers and internet sites criticizing the recurring due process violations on campuses (11).



SAVE (Stop Abusive and Violent Environments) is working to restore free speech and due process on college campuses:

Bills Campus Civil Rights DED Sexual Assault Directive Innocence Law Enforcement Press Release Sexual Assault

Safety of Our Students: SAVE Calls on Congress to Fix Broken System of Campus Rape Panels

Contact: Teri Stoddard
Telephone: 301-801-0608

Safety of Our Students: SAVE Calls on Congress to Fix Broken System of Campus Rape Panels

WASHINGTON / May 21, 2014 – Based on growing complaints by victims and accused students, Stop Abusive and Violent Environments (SAVE) is calling on Congress to fix the current system of campus disciplinary committees. A 2011 federal policy mandated that these panels adjudicate claims of campus sexual assault. Over 350 editorials to date have sharply criticized the boards both for shortchanging victims and violating the rights of the accused:

SAVE is proposing enactment of a new law entitled “SOS: Safety of Our Students.” The law would require that all allegations of campus criminal sexual assault be referred to local criminal justice authorities for investigation and adjudication. The full text of the bill can be seen here:

In 2011 the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter that shifted responsibility for campus rape cases to the committees that handle cheating and plagiarism cases. These panels lack legal authority to subpoena witnesses, conduct in-depth investigations, or impose criminal sanctions.

On May 1, 2014 the Department of Education announced it was launching investigations of 55 universities for “possible violations of federal law over the handling of sexual violence and harassment complaints.” The probe underscores federal concerns over the turmoil and confusion that the current system is now experiencing.

Five days later a USA Today Editorial Board column charged the current approach is “failing” because the “strongest punishment schools can deliver is to expel a rapist from campus.” A May 13 editorial by the Los Angeles Times Board echoed similar concerns.

“Despite the best of intentions by its proponents, the current system represents second-class justice to victims and third-world justice for the accused,” charges SAVE spokesperson Sheryle Hutter. “We call on Congress to act promptly to respond to the growing crisis in handling campus rape cases.”

Stop Abusive and Violent Environments—SAVE—is a victim-advocacy organization working for evidence-based solutions to domestic violence and sexual assault:

Accusing U. CAMP Campus DED Sexual Assault Directive Innocence Press Release Sexual Assault Sexual Harassment

PR: Honor Independence Day by Demanding Govt. Bureaucrats Restore Freedom of Speech on College Campuses, SAVE Says

Contact: Teri Stoddard
Telephone: 301-801-0608

Honor Independence Day by Demanding Govt. Bureaucrats Restore Freedom of Speech on College Campuses, SAVE Says

WASHINGTON / July 1, 2013 – During the days leading up to our annual Independence Day festivities, the non-profit group SAVE is calling on Americans to demand the U.S. Department of Justice to restore freedom of speech on college campuses.

On May 9, 2013 the U.S. Department of Justice reached a Settlement Agreement with the University of Montana. The Agreement expands the definition of sexual harassment to encompass any unwelcome conduct, including speech, of a sexual nature. “Unwelcome” would now be judged by a student’s subjective feelings, not by an objective “reasonable person” standard.

The Agreement specifies that its broad new definitions and procedures are intended to be used as a “blueprint” by other colleges. The policy thus applies to all faculty members and the 21 million undergraduate and graduate students at all universities receiving federal funding, and represents a national campus speech code, SAVE believes.

The May 9 policy has triggered controversy and spirited protest. To date, over 100 editorials have been published opposing the federal mandate:

Elected officials have expressed reservations, as well. In a June 26 letter to the Department of Justice, Arizona senator John McCain charged the DOJ’s new policy threatens free speech and raises “great concerns about the security of constitutional rights.”

The McCain letter highlights examples how the DOJ directive could impair First Amendment rights: A student asking another student on a date; a professor assigning an English literature book that contains sexual allusions; or a student listening to music that contains content of a sexual nature overheard by others.

“Independence Day is about recalling and recommitting ourselves to the Founding Principles of our nation,” explains SAVE spokesperson Sheryle Hutter. “If Americans don’t speak out now in defense of freedom of speech on campus, then how will our freedoms be protected the next time a clueless government bureaucrat comes along?”

The May 9 policy comes on top of a controversial 2011 Dept. of Education mandate requiring colleges to use the weakest preponderance-of-evidence standard in handling allegations of sexual assault and curtail other due process protections. More information on the effort to restore free speech on college campuses can be seen here:  

Stop Abusive and Violent Environments is a victim-advocacy organization working for evidence-based solutions to domestic violence and sexual assault.