Category: Free Speech

Expelling the Innocent: The New Campus Black List

Post author By Edward Bartlett
Post date June 2, 2021

Expelling the Innocent: The New Campus Black List

James Moore

June 2, 2021

In 2011 the US Department of Education published a “Dear Colleague” letter pertaining to Title IX of the Education Amendments of 1972 and its implementing regulations. The letter emphasized that sexual harassment of students, including sexual violence, is a form of sex discrimination prohibited in education programs operated by recipients of Federal funds.

The 2011 letter threatened termination of any federal funding, including research funding, for universities failing to conform to this guidance. In 2014 DOE issued a “Question and Answer” document providing further direction, and U.S. colleges and universities largely upended their procedures for responding to allegations of student sexual misconduct. The remedy institutions usually found for protecting students from peers found responsible for sexual violence consisted of expelling men from school, too often on weak grounds.

The 2011 and 2014 documents both provide sub-regulatory guidance, so they technically did not have the force of law. However, they were simple for the DOE to implement and delivered a frightening threat to institutional leaders. Such guidance could be created entirely at the discretion of the DOE Office of Civil Rights without collecting and responding to public comments. Because guidance is not technically a regulatory rule, it is notoriously difficult to challenge.

The DOE’s guidance addressed a genuine problem. Absent an external criminal finding, schools had little incentive to respond in a substantive way to sexual misconduct complaints from students. Doing so would draw negative attention that placed schools at a disadvantage in the competition for students.

Unfortunately, the DOE’s guidance created new problems at least as troubling as those remedied, because it required colleges and universities to abandon procedural fairness for students accused of sexual misconduct. Institutions that declined this guidance might find themselves the subject of DOE Title IX investigations, and had a compelling incentive to curry federal favor by accepting any amount of bad advice the agency offered. Expulsions of both guilty and innocent students accelerated.

The harm done by expelling innocent students is substantial, because it is nearly impossible to matriculate at a new school unless a student is in good standing at his or her previous institution. Hundreds of aggrieved students sued their schools over the due process withheld from them, and were more often than not successful in court. Civil judgements mounted against institutions doing the DOE’s bidding.

Faculty efforts to hold institutions to due process drew retaliation from terrified school administrators. I spent 26 years living in a student residence hall guiding undergraduates, whom I tried to insist my institution continue to treat fairly. I am confident my efforts led to a 2015 termination of my resident faculty role by a former vice president for student affairs. I was less prepared for the 2018 student protest demonstration against my employment instigated by a former dean.

The Trump administration moved methodically to revoke and replace the guidance in the DOE “Dear Colleague” and “Question and Answer” documents, but forewent the expediency offered by sub-regulatory guidance. Instead, Secretary of Education Betsy Devos followed formal procedures to promulgate regulatory rules, including seeking and responding to public comments. This was a thorough and unrushed effort that, unlike the Obama administration’s guidance, took none of the stakeholders by surprise. After a closed-door summit in July of 2017 that included participation by due process advocates, Devos in September rescinded the guidance in the Dear Colleague letter, replaced it with interim guidance, and opened a notice-and-comment process for permanent regulations.

DeVos’ draft rule was published in November of 2018 and was finalized in May of 2020 after a review of more than 124,000 public comments. It went into effect less than a year ago in August of 2020, the first Title IX regulations generated this formally since 1997. DeVos’ rule has the unequivocal force of law.

The rule restores due process for accused students, protecting their rights and their institutions’ interests. It requires universities to respond to allegations of student sexual misconduct in a quasi-judicial framework predicated on a presumption of innocence. Complaining and responding parties are represented by an advisor, possibly a lawyer, and must be allowed to cross-examine each other through their advisors. Adjudication is no longer restricted to the preponderance of evidence standard called out in 2011, but may instead be based on the higher standard of clear and convincing evidence.

President Biden has pledged to undo DeVos’ reforms. One path is another multi-year process to promulgate yet another new rule. The administration could ask Congress to expedite repeal of DeVos’ rules via the Congressional Review Act, but Congress will be reluctant to escalate the matter to themselves in the run up to the midterm elections.

In May, President Biden nominated Catherine Lhamon to return to her Obama administration role as the DOE’s Assistant Secretary for Civil Rights. Lhamon is probably the individual most responsible for the due process crisis that DeVos sought to repair. Lhamon’s capacity for overreach and disregard for constitutional guarantees may preclude her confirmation by the Senate. Her opponents have ample evidence that the courts disagree with what she and the DOE Office of Civil Rights previously required of universities.

It is important the attack on DeVos’s Title IX reforms be blocked. Under the guidance that DeVos revoked, the Department of Education took the immoral position that universities should punish more of their guilty students by more frequently punishing innocents. This betrays bedrock principles of procedural fairness and is unacceptable on its face. This approach reduced Obama’s DOE Office of Civil Rights into an executive branch exercise in McCarthyism. Red-baiting was replaced by unsubstantiated rape accusations, and expulsion from college became the new black list. We should not step back toward such moral bankruptcy. DeVos undertook to dismantle an injustice factory, and the new rule that delivers her reforms should be retained.

James E. Moore, II is a Professor of Public Policy and Management and of Industrial and Systems Engineering at the University of Southern California.

#MeToo Campus Civil Rights Discrimination Due Process False Allegations Free Speech Investigations Office for Civil Rights Sexual Harassment

Black Immigrant Chaplain Claims Christian College Used Bogus Title IX Investigation to Fire Him

Post author By saveadmin
Post date July 20, 2020

‘From the outset … race was very much at issue’

A professor’s race heavily factored into his firing on the grounds of making racially and sexually insensitive comments, according to his attorney.

Wheaton College, known informally as the Harvard of evangelical colleges, publicly announced the dismissal of Chaplain Tim Blackmon earlier this month, more than a month after his firing.

The 50-year-old black immigrant from the Netherlands has since vigorously disputed the allegations against him, telling the Chicago Tribune that “they are a complete misconstrual of the comments” he made.

President Philip Ryken justified the college’s firing of Blackmon by publicly accusing him of several violations Wheaton learned about last fall. He had “repeatedly used an ethnic slur” to refer to an Asian employee and suggested that a female staff member sit on his lap during a training session for sexual harassment, according to Wheaton’s statement.

The black chaplain also circulated a meme to employees about masturbation and “arranged” to have the book “The Complete Idiot’s Guide to the Kama Sutra” placed on a female staff member’s desk, the college claimed.

Wheaton claimed that Blackmon “admitted to certain allegations, which is patently untrue,” his attorney Andrew Miltenberg told The College Fix in an email. The ex-chaplain “continues to refute” both the allegations and the context Wheaton applied to them.

“From the outset, Chapl[a]in Blackmon’s race was very much at issue,” contrary to Wheaton’s race-neutral portrayal of the allegations, Miltenberg said.

Citing Wheaton’s allegedly poor record with racial and ethnic diversity, “especially with the African American community,” the attorney said that Blackmon has been treated far worse than his white colleagues.

Pressure to conform with the prevailing views of the #MeToo movement and the controversies surrounding Title IX investigations resulted in an overreaction from the college, the attorney added.

Ultimately, Wheaton chose to oust Blackmon so that it could maintain the mantle of being an “ethnically diverse” college all the while “return[ing] to its roots – that being a primarily white educational institution,” Miltenberg alleged. Yet the fired employee and his attorney have not decided whether to take legal action yet.

When asked to specify some of the college’s allegations about Blackmon – including the exact racial slur – beyond its curt statement, Director of Marketing Joseph Moore stated: “Wheaton College is not providing further comment.”

That supposed slur, Blackmon told a blogger last week, stemmed from an “inside joke” about the song “Black and Yellow” by the rapper Wiz Khalifa and its relevance to working in a “predominantly white institution.”

Theological articles he shared were ‘ideologically problematic’ for accuser

Wheaton’s internal statement to its community, which Moore provided and which preceded Blackmon’s response, made clear that the college did not find that he engaged in “sexually immoral relationships or physical sexual misconduct.” Rather, its investigation “revealed conduct inconsistent with Wheaton’s policies and commitments.”

Moore did not not provide The Fix with the specific policies and commitments purportedly breached by Blackmon, however.

“To be clear, I was completely blind-sided by this Title IX investigation,” Blackmon said via his attorney in response to Wheaton’s statement.

“I recently learned this was the second time this individual filed a Title IX against me,” the first one occurring in 2017 after Blackmon had “shared five theological articles that the complainant [accuser] deemed ideologically problematic.” (He doesn’t give a more specific description of the accuser; Wheaton’s language suggests at least two women complained.)

Wheaton’s Title IX office didn’t investigate at the time, “as it was a clear misuse of the Title IX investigative process,” the chaplain continued. But in the most recent complaint, he said that “several of my comments have been taken completely out of their factual and, in some cases, religious context.”

He emphasized that no one accused him of “flirtation, inappropriate relationships, sexual misconduct or any sexual action towards anyone,” and neither the accuser nor “any witness, communicate[d] offense or discomfort.”

While it left out his race when justifying his firing, Wheaton emphasized Blackmon’s race when hiring him five years ago as the first nonwhite chaplain in its 155-year history.

Rodney Sisco, director of the Office of Multicultural Development, told The Wheaton Record: “I think change is change, and change is always difficult. Chaplain Blackmon is going to be seen differently.”

While Sisco was personally excited to have a “person of color leading the chaplain’s office,” he suspected that some community members would be “a little worried, asking, ‘Have we made some sort of strange mistake?’” He concluded by saying: “I think there will be some folks who push against the college.”

At the time, only 2.3 percent of the student body was comprised of African Americans. The most recent figures from 2017 put it at 3.03 percent––its white population is at 70.8 percent. (Ranking service College Factual says Wheaton has more “non-resident alien” students than African Americans.) This is at a college that was founded by evangelical abolitionists in 1860 and was a major stop along the Underground Railroad.

“Wheaton has failed in its attempt, if any were even made, to achieve truly measurable and transformative cultural diversity,” Miltenberg, who has represented hundreds of college students accused of sexual misconduct, told The Fix.

‘The Complete Idiot’s Guide to the Kama Sutra’ was a regifted ‘gag’

In a separate public statement, the attorney alleged that Wheaton administrators “are now publicly smearing and defaming my client in the media by using out of context statements and false accusations.”

Contrary to President Ryken’s claim, Blackmon “never asked his secretary to sit on his lap during a sexual harassment training,” and “never harassed anyone, sexually or racially,” according to Miltenberg. The college simply “weaponized the Title IX process to get rid of someone whose words and ideas didn’t always conform to their views.”

The lap allegation, Blackmon told The Roys Report blog last week, stemmed from his critical comments about “the mandatory (but rather patronizing) sexual harassment training video” he was required to watch when starting at Wheaton in September 2015.

He said he told the accuser: “Come on, it’s not like I don’t know what sexual harassment is. It’s not like I’m asking my secretary to sit on my lap and take the training for me.”

The context for another allegation, about his comments to a newly married female employee, was the fact that her “brand-new husband had been pulling all-nighters for grad-school,” Blackmon continued:

As a way of celebrating their newly wedded bliss I said, “Maybe you should surprise him and pay him a conjugal visit.” As to the conjugal-visit comment, I was genuinely trying to commiserate with her about the challenges of graduate school and newlyweds.

Regarding the incident involving “The Complete Idiot’s Guide to the Kama Sutra,” Miltenberg told The Fix that Blackmon “received the book from a former parishioner.”

That person’s wife wrote about the incident in a comment on a blog post on the Blackmon controversy: “I left the book on Tim’s desk. During our annual Church bazar [sic] I found the book in the donated items as we set up.” She thought that it would be “ironic to put the book on Tim’s desk.”

Later, after she and her husband “laughed about it,” her husband “snuck into Tim’s office and hid it in his library where it sat for years. I guess it made its way to Chicago. I thought it was funny to put a book that silly in Tim’s office. And the idea I was a victim is stupid.”

According to Miltenberg, at some point Blackmon “told the complainant the story after he found the surprise gag gift in his [college’s] library and then gave her the book. He thought it was a funny story. That’s all there was to it.” (Blackmon told The Roys Report he shared the story with others, but admitted that it sounded bad when “taken out of its contexts without the prank.”)

Because this was “such a benign event,” the attorney continued, “we believe that Wheaton was looking for an excuse to sever its relationship with its first African American Chaplain” and return to being a predominantly white educational institution.

‘China-man’ was an ‘inside joke’

Regarding the “ethnic slur” he allegedly used repeatedly toward an Asian American employee, Blackmon provided the context to The Roys Report.

When he started working at Wheaton, Blackmon said one of his Korean ministry colleagues was “mistaken” for a professor. They “commiserated about the realities of beginning to work” at the predominantly white institution, comparing their situation to the Wiz Khalifa song “Black and Yellow”:

[A] black pastor from Holland and a Korean ministry associate. I said, “Maybe we should call you the China-man because people can’t even tell one Asian from another, one Chinese from a Korean.” More laughter ensued and for the next couple of weeks we commiserated about the ironies of working in a predominantly white institution, and we soon moved on from our inside joke and got to work.

“This,” said Blackmon, “is what they are considering the racial/ethnic slur.”

Miltenberg also suspects that “Wheaton may have overreacted out of fear of public pressure given the #MeToo movement and other Title IX related controversies as of late”:

Wheaton has repeatedly shifted the landscape in Chaplain Blackmon’s case, at times claiming it was Title IX issue, and other times, suggesting that the situation did not fall under Title IX.

This shifting has impeded Blackmon’s ability to appropriately respond to the allegations as well as “denying him the right to counsel,” Miltenberg said. The college has also ignored its own “employee conflict resolution procedures,” he claimed.

Its actions “have put Chaplain Blackmon’s future very much at risk,” Miltenberg said.

Source: https://www.thecollegefix.com/black-immigrant-chaplain-claims-christian-college-used-bogus-title-ix-investigation-to-fire-him/

Campus Free Speech Sexual Assault Sexual Harassment Title IX Title IX Equity Project

PR: Universities and Colleges Take Steps to Implement New Title IX Regulation

Post author By saveadmin
Post date June 24, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Universities and Colleges Take Steps to Implement New Title IX Regulation

WASHINGTON / June 25, 2020 – Following lengthy public debate, the U.S. Department of Education issued a new Title IX regulation on May 6, 2020, which carries the force and effect of law. [1]

The new regulation takes effect on August 14, 2020. This means school administrators and Title IX Coordinators have only about 50 days to enact policies and revise training procedures to ensure fairness and equality for all students.

Within this time frame, schools must restore fairness on campuses by upholding students’ rights to written notice of allegations, the right to an advisor, as well as the right to submit, cross-examine, and challenge evidence at a live hearing. One of the key provisions will require colleges to post their Title IX training materials on the websites for public review.[2]

To date, the regulation has been endorsed by editorial boards of the following newspapers: Detroit News, The Oklahoman, New York Daily News, Wall Street Journal, Pittsburgh Post-Gazette, and Philadelphia Enquirer. [3] The Independent Women’s Forum has highlighted how the new regulation will help restore due process on campus and bring an end to the so-called “Kangaroo Courts.” [4]

SAVE has identified numerous ways that the new rule will support sexual assault complainants. [5] Most importantly, the regulation establishes a legally enforceable duty of universities to respond to such cases in a timely manner.

Schools have varied in their initial responses to the new standard.

In a letter to the University of Wisconsin System (UWS), Governor Tony Evers stated, “UWS is required to implement these changes through administrative rule making.” Evers mandated his Board of Regents to do so by submitting a scope statement to him, but rejected the first one on the grounds it was too vague. [6]

The South Dakota Board of Regents was scheduled to vote this week to implement the procedures: “Using a hearing examiner and affording full due process at the onset enhances the probability of getting to the correct outcome sooner, rather than a later, an issue that has haunted Title IX nationally in a litany of high profile court appeals in recent years.” [7]

Anecdotal reports indicate other leading universities have initiated the process of implementing the new regulation.

In contrast, a memo from University of Denver Chancellor Jeremy Haefner indicates the University is focusing on ensuring the changes in the final rule support survivors: “I am writing to ensure you that these changes will in no way compromise our commitment to creating an environment in which all members of the DU community feel safe reporting their experiences and remain confident that their cases will be heard thoroughly, fairly, and with respect.” [8] Unlike other schools, the memo does not mention fair and equitable procedures for all parties.

In October 2019, SAVE launched its Title IX Equity Project to assure compliance with Title IX requirements. As a result, the Office of Civil Rights has opened over 100 investigations to date regarding university scholarship policies that discriminate against male or female students. [9] The Title IX Equity Project has enjoyed extensive media coverage, as well. [10]

Citations:

[1] https://www2.ed.gov/about/offices/list/ocr/newsroom.html

[2] https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students

[3] http://www.saveservices.org/title-ix-regulation/

[4] https://www.iwf.org/2020/05/06/new-title-ix-regulations-restore-due-process-on-campus/

[5] http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

[6]https://content.govdelivery.com/attachments/WIGOV/2020/06/15/file_attachments/1474234/Evers_2020_06_15_UWS%20Ch%2017.pdf

[7] https://www.sdbor.edu/the-board/agendaitems/2014AgendaItems/2020%20Agenda%20Items/June24_20/5_B_BOR0620.pdf

[8] http://www.saveservices.org/2020/06/university-of-denver-chancellor-memo-regarding-title-ix-compliance/

[9] http://www.saveservices.org/equity/ocr-investigations/

[10] http://www.saveservices.org/equity/

Campus Due Process Free Speech Sexual Assault Sexual Harassment

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

Post author By saveadmin
Post date May 4, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

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

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

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

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

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

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

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

Links:

Due Process Free Speech

PR: As Campus Unrest Spreads, Legislators Seek to Restore Free Speech and Due Process

Post author By saveadmin
Post date June 5, 2017

Contact: Stephen Coleman

Telephone: 301-801-0608

Email: scoleman@saveservices.org

As Campus Unrest Spreads, Legislators Seek to Restore Free Speech and Due Process

WASHINGTON / June 5, 2017 – In the wake of widening campus protests that have sometimes turned violent, legislators in numerous states are taking steps to assure free speech and due process. These bills have generally enjoyed broad-based bipartisan support.

Thus far in 2017, governors in four states have signed into law bills that bar free speech zones or otherwise strengthen free speech on campus (link to the actual bill is embedded in the state’s name):

Similar free speech bills have been proposed in California, Illinois, Louisiana, Michigan, North Carolina, Texas, and Wisconsin.

Enhanced due process in campus sexual assault cases has been the focus of bills proposed in three states this year:

Georgia — HB 51 seeks to have allegations of campus sexual assault referred to local criminal justice authorities for investigation and adjudication.
North Carolina — HR 777 seeks to guarantee accused students’ fundamental due process rights.
Utah — HB 326 sought to enhance reporting to law enforcement, and HB 284 afforded accused students the right to active counsel.

To date, none of these bills has been signed into law.

In Washington, student protesters at Evergreen State College harassed and screamed at a White professor for not leaving campus on a “Day of Absence.” The school was closed this past Friday after a caller threatened to “execute as many people as I can.”

SAVE urges legislators to continue efforts to reinvigorate constitutional principles by strengthening free speech and due process on campus.

SAVE (Stop Abusive and Violent Environments) is working for practical and effective solutions to campus sexual assault: www.saveservices.org

Campus Free Speech Sexual Assault

PR: Lawmakers Push Back to Restore Free Speech and Due Process on Campus

Post author By saveadmin
Post date February 16, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Lawmakers Push Back to Restore Free Speech and Due Process on Campus

WASHINGTON / February 16, 2016 – In the face of continuing pressures by campus activists, lawmakers across the country are taking steps to restore constitutionally based rights to free speech and due process. SAVE applauds these efforts to bring democratic ideals back to college campuses.

Regarding free speech, Arizona State Rep. Anthony Kern introduced a bill last week that would prohibit colleges from designating any area of campus as a free speech zone (1). In Missouri, Rep. Dean Dohrman introduced a bill last month that would require students to take a class on free speech in order to graduate (2).

Last summer the U.S. House of Representatives convened a hearing on First Amendment Protections on Public College and University Campuses (3). In January the National Association of Scholars issued a wide-ranging statement on intellectual freedom and free speech (4).

Lawmakers have expressed concerns about the lack of due process in sexual assault cases, as well.

On January 26, Georgia Rep. Earl Ehrhart, chairman of the Appropriations subcommittee on Higher Education, held a hearing that probed the lack of due process on campuses. Ehrhart warned he wouldn’t talk to college presidents about budget requests until they adopt “simple, basic due process protections.” (5)

Lack of legal representation is another due process shortcoming, and right-to-counsel laws for students accused of sexual assault have now been enacted in North Carolina, Arkansas, and North Dakota (6).

Nationally, two senators have voiced concerns about deficiencies in due process protections.

Sen. Marco Rubio (R-FL) has highlighted the problem of false allegations: “One need only review recent news reports to know that false allegations do, in fact, happen. Certainly, we should make additional efforts to protect due process on campus.” (7)

Referring to the proposed Campus Accountability and Safety Act, Sen. Mark Warner (D-VA) commented, “I do believe you do need, for the accused, you need to maintain due process rights.… I think this part of the legislation will probably require some additional review.”

Last Tuesday Milo Yiannopoulos spoke at Rutgers University-New Brunswick about the need for free speech on campus. In response, protesters threw blood-colored paint on themselves, vandalized the building where Yiannopoulos spoke, and repeatedly interrupted his speech (8).

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org