Category: Title IX

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

Post author By saveadmin
Post date August 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

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

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

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

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

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

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

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

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

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

Links:

Believe the Victim Campus Title IX Trauma Informed Victim-Centered Investigations

PR: Campus Administrators Need to Restore Impartial Investigations, or Face a Surge in Costly Lawsuits

Post author By saveadmin
Post date August 11, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Campus Administrators Need to Restore Impartial Investigations, or Face a Surge in Costly Lawsuits

WASHINGTON / August 11, 2020 – SAVE has published an analysis that documents a dramatic increase in judicial decisions against universities involving biased investigations of sexual assault allegations. In 2014-2016, the average number of lawsuits alleging faulty campus investigations averaged three decisions per year. In 2020, that number is projected to reach 30 judicial decisions against colleges and universities, a 10-fold increase in the span of a few years.

Such investigations go by a variety of names: “trauma-informed,” “Start By Believing,” and “victim-centered.” These investigative approaches discount the presumption of innocence and begin with the assumption that the complainant is being fully truthful. As a result, exculpatory evidence is often discounted or ignored.

Five examples illustrate the due process deficiencies that judges considered in the university lawsuits:

In Neal v. Colorado State University-Pueblo, the university opened an investigation into a male student after a classmate saw a hickey on that student’s girlfriend’s neck during class. The girlfriend swore to the university the sex was consensual, but the university decided to “investigate” anyway. The university gave the male student less than 24-hour notice to the hearing and refused to give him a copy of the investigative report.
In Doe v. Regents of University of California, a female student accused a male student of sexual assault without providing any witnesses or evidence. Without any investigation, the university put the male student on interim suspension and then did not allow him access to the investigative report once one was created.
In Doe v. Purdue University, the university withheld the investigative report, which included a made-up “confession” by the accused student.
In Doe v. Brandeis University, the institution refused to interview the accused student’s witnesses, refused to inform him of what he was being investigated for, and refused to allow him to review the investigative report.
In Doe v. Syracuse University, the accused student alleged that the university trained its investigators that “perpetrators of sexual assault are supposedly rational actors who plan, practice, and become habitual rapists and sexual predators… [and that] inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma.”

On May 6, the U.S. Department of Education issued a new regulation that would require campus investigations to be impartial and free of bias. In response, the State of New York filed a lawsuit requesting a Preliminary Injunction against the Title IX regulation (1). SAVE then filed an Amicus Brief highlighting the fact that, “The Regulations require that any coordinator, investigator, decision-maker, or any person designated to facilitate an informal resolution process be free from conflict of interest or bias.” (2) The SAVE Brief urged the Court to reject the New York complaint.

This past Sunday, Judge John Koeltl issued a ruling denying the State of New York request (3). In the opinion, the judge favorably quoted a key provision from the new regulation:

During an investigation of a formal complaint, the school must “[p]rovide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond.” (page 12)

The new Title IX regulation is slated to take effect this coming Friday, August 14 (4). SAVE urges campus administrators to carefully review investigative policies and procedures to assure compliance with the new regulation.

The SAVE analysis, “University Administrators Need to Assure Impartial and Fair Investigations, or Face Legal Consequences,” is available online (5).

Links:

Campus Investigations Sexual Assault Sexual Harassment Title IX Trauma Informed

PR: Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

Post author By saveadmin
Post date August 3, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

WASHINGTON / August 3, 2020 – With less than two weeks remaining before the effective date of the new Title IX regulation, SAVE is advising university counsel to review institutional polices to assure Title IX investigations do not rely on flawed “trauma-informed” methods. The use of such investigative approaches, sometimes referred to as “victim-centered” or “Start By Believing,” is inadvisable for four reasons:

Regulatory Requirements: “Trauma-informed” means the investigator presumes that the complainant has experienced significant physical and psychological trauma, and interprets the complainant’s statements through that lens. This presumption is inconsistent with the text of the new Title IX regulation, which reads:

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.” [key words in italics] (1)

Case Law: In a growing number of lawsuits, judges have issued rulings against universities because of their use of trauma-informed investigations. In a recent judicial decision against Syracuse University, the federal judge noted: “Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account . . . becomes evidence that her testimony is truthful” (2).

Brooklyn College professor KC Johnson has summarized a number of these cases (3): “In a lawsuit against Penn, the court cited the university’s trauma-informed training as a key reason why the complaint survived a motion to dismiss. During the Brown university bench trial, the decisive vote in the adjudication panel testified that she ignored exculpatory text messages because of the training she had received. Ole Miss’ trauma-informed training suggested that an accuser lying could be seen as a sign of the accused student’s guilt. And at Johnson & Wales, the university was so disinclined to make public the contents of its training that it refused a request by the accused student’s lawyer to see it before the hearing.”

Lack of a Scientific Basis: Several peer-reviewed articles have discredited the scientific basis of trauma-informed investigations: Deborah Davis and Elizabeth Loftus: “Title IX and “Trauma-Focused” Investigations: The Good, the Bad, and the Ugly” (4); Sonja Brubacher and Martine Powell: “Best-Practice Interviewing Spans Many Contexts” (5); and Christian Meissner and Adrienne Lyles: “The summary of Training Investigators in Evidence-Based Approaches to Interviewing.” (6)

Journalist Emily Yaffe has described trauma-informed methods as “junk science.” (7) A compilation of other scientific critiques of trauma-informed is available online (8).

Criticized by Leading Title IX Groups: Several organizations have issued reports and statements that are critical of trauma-informed investigations: ATIXA: “ Trauma-Informed Training and the Neurobiology of Trauma;” (9) FACE: “Trauma-Informed Theories Disguised as Evidence”(10) SAVE: “Believe the Victim: The Transformation of Justice;” (11) In addition, 158 professors and legal experts endorsed an Open Letter that is critical of the use of trauma-informed methods (12).

A UCLA working group appointed by former California governor Jerry Brown concluded, “The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent.” (13)

“Trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable.

Links:

Accountability Campus Civil Rights Department of Education Discrimination Due Process False Allegations Investigations Office for Civil Rights Press Release Sex Education Sexual Assault Sexual Harassment Title IX Training Victims Violence

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

Post author By saveadmin
Post date July 28, 2020

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

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

WASHINGTON / July 28, 2020 – SAVE recently released a study that shows black male students face a type of “double jeopardy” by virtue of being male and black. (1) Analyses show although black male students are far outnumbered on college campuses, they are four times more likely than white students to file lawsuits alleging their rights were violated in Title IX proceedings (2), and at one university OCR investigated for racial discrimination, black male students were accused of 50% of the sexual violence reported to the university yet they comprised only 4.2% of the student population. (3)

In 2015, Harvard Law Professor Janet Halley raised an alarm to the U.S. Senate HELP committee that, “the rate of complaints and sanctions against male students of color is unreasonably high.” (4) She advised school administrators to, “not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.” (5)

Her powerful words were ignored. Over the past 5 years numerous black males have been caught up in campus Title IX proceedings. Their lawsuits often claim a lack of due process in the procedures.

Grant Neal, a black student athlete, was suspended by Colorado State University – Pueblo for a rape his white partner denied ever happened. (6) Two black males students accused of sexually assaulting a fellow student recently settled a lawsuit against University of Findlay for racial, gender and ethnic discrimination. (7) Nikki Yovino was sentenced to a year in prison for making false rape accusations against two black Sacred Heart University football players whose lives were ruined by her accusations. (8) These are just a few examples.

Wheaton College in suburban Chicago, a major stop along the Underground Railroad, recently dismissed Chaplain Tim Blackmon, its first nonwhite chaplain in its 155-year history. Blackmon claims Wheaton’s Title IX office failed to investigate a previous Title IX complaint against him in a “clear misuse of the Title IX investigative process,” and he was “completely blind-sided by this Title IX investigation.” Blackmon’s attorney believes the professor’s race heavily factored into his firing, and 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. (9)

The impact to black male students and faculty could be even greater than any data or media reports imply since only those who can afford a costly litigation file lawsuits and make the news. More data is needed, but anecdotally black males are disproportionately harmed in campus Title IX proceedings.

SAVE recently spoke with Republican and Democrat offices in the House and Senate regarding this issue. Virtually all staffers agreed members of Congress are concerned about harm to black students and supportive of ways to offer protections to all students, including those of color.

The new Title IX regulation offers necessary due process protections that black students need. By complying with the regulation, college administrators will protect the rights of all students and address the serious problem that black men are accused and punished at unreasonably high rates. At a time when activists on college campuses are clamoring that Black Lives Matter, college administrators should assure they are doing everything they can to help their black students.

Citations:

SAVE is leading the policy movement for fairness and due process on campus: http://www.saveservices.org/

Campus Sexual Assault Sexual Harassment Title IX

Ringing the Bell of Justice, 14 Attorneys General Remind Colleges of their Legal Duties Under Title IX

Post author By saveadmin
Post date July 19, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Ringing the Bell of Justice, 14 Attorneys General Remind Colleges of their Legal Duties Under Title IX

WASHINGTON / July 20, 2020 – The Attorneys General from 14 states have released an Amicus Brief that summarizes the legal obligations of colleges and universities in responding to allegations of campus sexual misconduct. The Attorneys General represent the states of Texas, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, and Tennessee.

On May 6, the federal Department of Education issued a new regulation creating a legal obligation for colleges to investigate and adjudicate allegations of sexual assault. The regulation, known as the Final Rule, increased legal protections both for complainants (1) and the accused (2).

But one month later the Attorneys General from 18 other states filed a lawsuit in federal court seeking to block the implementation of the new regulation, claiming the policy would cause “immediate and irreparable harm” to schools and students (3).

Last week’s Amicus Brief by the 14 Attorneys General is grounded in schools’ constitutional and other legal obligations to assure fairness for all students. The AGs note, “the Final Rule’s due process protections requiring live hearings, direct cross examination, and neutral fact-finders, reflect a reasonable, straightforward approach to resolution of Title IX complaints that protects both complainants’ and respondents’ due process rights.”

The Brief charges that current campus policies represent a “constant recycling of discredited, unconstitutional policies” that “effectively eliminated a presumption of innocence for those accused of sexual misconduct.” The Brief concludes, “The Final Rule aims to provide robust protections for individual rights by ameliorating the constitutional and statutory deficiencies caused by prior regulations and guidance.”

The Amicus Brief also disputes the “immediate and irreparable harm” claim, accurately explaining that the plaintiffs “have known for years that constitutional norms favor more procedural protections for students accused of sexual harassment, not less.” Therefore, “If Plaintiffs and these institutions suffer harm because of the Final Rule’s effective date, then that harm was self-inflicted.”

To date, 650 lawsuits have been filed by accused students against their schools (4). In a majority of cases, judges have ruled in favor of these students (5).

The Editorial Boards of the following newspapers have endorsed the new Title IX regulation: New York Daily News, Detroit News, Wall Street Journal, The Oklahoman, Pittsburgh Post-Gazette, and the Philadelphia Inquirer (6).

The Attorneys General Amicus Brief is available online (7).

NOTE: The original AG Brief, filed on July 15, listed 14 Attorneys General. The following day, the Nebraska Attorney General also agreed to support the Brief. So now 15 Attorneys General are included. This is the revised Brief: https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/04517937890.pdf

Links:

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/

Title IX

Evers blocks UW from complying with Trump sex assault rules

Post author By saveadmin
Post date June 16, 2020

https://www.startribune.com/evers-blocks-uw-from-complying-with-trump-sex-assault-rules/571273442/

Evers blocks UW from complying with Trump sex assault rules

By TODD RICHMOND Associated Press

JUNE 15, 2020 — 4:45PM

MADISON, Wis. — Gov. Tony Evers blocked University of Wisconsin System officials Monday from taking the first steps toward complying with new federal rules that bolster the rights of sexual misconduct defendants and narrow the range of cases colleges are required to investigate.

Evers wrote in a letter to UW System President Ray Cross that he was rejecting the system’s outline for a rule complying with changes the Trump administration made last month to Title IX regulations. Evers said the outline doesn’t clearly state whether the system will weaken or strengthen the definition of sexual harassment. The outline also doesn’t recognize the economic impact of providing more mental health services to victims frozen out of the complaint process, the governor said.

“Education and civil rights leaders across the nation have voiced strong concerns about the new federal regulations and the chilling effect they will have on survivors of sexual harassment and sexual assault,” Evers wrote.

UW System spokesman Mark Pitsch had no immediate comment.

Education Secretary Betsy DeVos issued new rules last month tweaking Title IX, a 1972 law barring discrimination based on sex in education. The changes narrow the definition of sexual harassment and require colleges to investigate claims only if the misconduct is so severe and offensive that it effectively denies a person equal access to education.

Obama administration guidelines, by contrast, defined sexual harassment as an unwelcome sexual advance. The final policy was quickly condemned by opponents who say it weakens protections for victims and will discourage many from reporting misconduct.

DeVos’ revisions also state schools can be held accountable for mishandling complaints only if they acted with deliberate indifference and allow student to question one another through representatives during live hearings.

The changes take effect Aug. 14. Evers earlier this month authorized Attorney General Josh Kaul to join a 17-state lawsuit alleging DeVos’ changes undercut Title IX’s mandate to eradicate sexual discrimination in federally funded education programs.

UW System President Ray Cross submitted a scope statement to Evers on May 21 regardless, noting in the statement that refusing to comply could lead to federal enforcement action and lawsuits.

By TODD RICHMOND Associated Press

JUNE 15, 2020 — 4:45PM

UW System spokesman Mark Pitsch had no immediate comment.

UW System President Ray Cross submitted a scope statement to Evers on May 21 regardless, noting in the statement that refusing to comply could lead to federal enforcement action and lawsuits.

Title IX

I’m a Democrat; Secretary DeVos Is Right on Title IX Reform

Post author By saveadmin
Post date June 7, 2020

June 17, 2020

I am a progressive Democrat and enthusiastic supporter of the new Title IX Rule that was recently issued by Education Secretary Betsy DeVos.

The DeVos Rule provides colleges and universities with a detailed and uniform modus operandi on how they must handle gender discrimination, sexual harassment, and sexual assault disputes. The new regulations emphasize fairness, equitability, due process protections, and extensive supportive measures for all parties, all of which have been missing from the rescinded Obama-era guidance that the new Rule supersedes. In contrast, the well-intentioned Obama-era guidance was conspicuously undetailed, constitutionally and legally dubious, and decidedly unfair toward the accused.

I experienced the Obama-era guidance shortcomings in a 2014 Title IX debacle, and the DeVos rule addresses all of them.

Even before release of the DeVos Rule, letters were mailed to Secretary DeVos from 18 Attorneys General, 49 House members, and three U.S. senators (all Democrats), exhorting that the Rule be suspended for the disingenuous excuse that its implementation by campuses closed by the COVID-19 pandemic might be excessively burdensome, although campuses have been expecting the new Rule already since November 2018.

This excuse was clearly a pretext aimed to undercut the DeVos Rule, but their entreaties were rendered obsolescent when it was released in early May. On May 22nd, a letter cosigned by 105 members of the House of Representatives was sent to Secretary DeVos demanding revocation of the DeVos Title IX rule.

The May 22nd letter is profoundly disappointing and warrants debunking. The letter fails to grasp that the purpose of Title IX is to grant students equal access to their educations, not to protect “survivors” or to provide a platform for restorative justice. The House letter also fails to appreciate, or even acknowledge, that the new Rule restores the constitutional safeguards of due process and free speech to the conflict resolution process, protections that have been commanded by recent court decisions.

The letter also contains a litany of hyperbole, unsubstantiated statements, misstatements, and inaccuracies and even revisits the COVID-19 ploy. Statements such the Title IX rule “will gut protection for student survivors of sexual assault,” “effectively turn Title IX on its head,” “jeopardizes the civil rights of students,” “reinforces the false and toxic stereotype that survivors, particularly women and girls, tend to lie about sexual assault,” “makes it harder for victims to come forward,” or “unduly hinders many schools from responding effectively to many incidents of sexual violence” are unsupported by argument or evidence, inexplicit to the point of being essentially meaningless, inflammatory, and inaccurate.

Finally, several statements in the House letter to Secretary DeVos, also unsubstantiated by any line of reasoning or evidence, actually warrant refutation. For example, the new rule is not “needlessly complex and burdensome.” It is a carefully thought-out constitutional and legal primer for how schools should conduct a Title IX investigations fairly and how it should support all its students if an allegation of an infraction is made.

The melodramatic assertion that the new Rule “flies in the face of common decency to require survivors to endure live hearings with live cross-examination by the perpetrator’s advisor of choice,” ignores the fact that cross-examination in a live hearing setting is a Constitutional requirement to which 150,000,000 other women in this country must abide when making a sexual assault allegation and ignores the fact that cross-examination has long been considered the greatest single legal engine that we have to truth-finding—the aim of any dispute resolution.

Meanwhile, the statement that “it is simply unjustifiable for the Department to require schools to dismiss many complaints of sexual harassment” is absurd. In fact, the new Rule mandates that a school must robustly address every complaint of sexual harassment but asserts that a school cannot formally investigate a complaint that does not rise to the level of sexual harassment. This is reasonable.

Finally, the use of the term “survivors” or “perpetrators” in context of approaching an investigation is prejudicial and has no place in any system of jurisprudence. It’s just wrong.

Overall, the House Letter to Secretary DeVos does not make a compelling case for Secretary DeVos to rescind the new Title IX rule, and she will be justified to ignore it.

Buddy Ullman is a retired Professor of Biochemistry and Molecular Biology from The Oregon Health & Science University (OHSU) in Portland, Oregon.

Sexual Assault Sexual Harassment Title IX

Secretary DeVos Right to Restore Due Process on Campus

Post author By saveadmin
Post date June 3, 2020

By L. Douglas Wilder

June 3, 2020

Wilder is the former governor of Virginia. He currently serves as a distinguished professor at Virginia Commonwealth University’s Wilder School of Government and Public Affairs.

As colleges and universities across the country plan what higher education will look like on the post-pandemic campus, the Department of Education has taken a major step toward improving one area with a longtime culture of injustice.

Education Secretary Betsy DeVos recently strengthened Title IX protections for the survivors of sexual misconduct on campus, while instituting due process in campus proceedings. For the first time ever, the Education Department’s Title IX regulations define sexual harassment, including sexual assault, as “unlawful sex discrimination.” Codifying prohibitions against sexual harassment requires schools to take meaningful action to support accusers and the accused, without sacrificing the safeguards to ensure fair and transparent proceedings.

Of course, our top priority is clamping down on sexual misconduct. Every year, thousands of students are exposed to unwanted sexual activity on campus, most of them being women. This ruins their college experience and can leave them traumatized long after they graduate.

Sexual misconduct is simply unacceptable. Campus officials must do their best to hold the perpetrators accountable and keep our students safe.

What they cannot do, however, is ignore due process — the bedrock of our judicial system. Too often, those accused of sexual misconduct are publicly vilified before their side of the story is ever heard. Too often, the accused are presumed to be guilty before the facts of their case are even known. This is just as unacceptable.

In America, people are always innocent until they’re proven guilty. “Guilty until proven innocent” is a perversion of our judicial system. The system relies on due process to keep both the accusers and the accused on a level playing field. Only then can we assess the validity of the allegations at hand and draw the right conclusions from them.

Unfortunately, I’ve experienced the presumption of guilt firsthand. For over a year now, I have undergone an unimaginable nightmare at Virginia Commonwealth University (VCU), where I lecture at the Wilder School of Government and Public Affairs. In December 2018, a complaint was filed against me by a 20-year-old student, alleging that I had touched her leg and kissed her without consent. The complainant was directed to file criminal charges with the Richmond Police Department. However, the charge was determined to be “unfounded.”

Nevertheless, VCU’s Title IX office carried on behind my back. Although the office notified the complainant that her complaint would be investigated thoroughly within two days of receiving it, I wasn’t notified of anything relative to any complaint until almost two months later.

At the end of January 2019, I finally received a “Notice of Investigation” letter, which detailed four specific allegations: Non-consensual Sexual Contact, Sexual Exploitation, Sex-Gender-based Discrimination, and Retaliation. The matter was assigned to an external investigator by Laura Walsh Rugless, the Executive Director of Equity Access Services and Title IX Coordinator, who has subsequently resigned her position at VCU.

Weeks later, I was notified that the initial external investigator was removed and replaced by Jody Shipper, co-founder and managing director of Grand River Solutions. This is the same Jody Shipper who conducted a Title IX investigation at the University of Southern California, an investigation whose determination was overturned by the California Court of Appeal, Second Appellate District Court in December 2018.

Why? Because the accused was denied a fair and transparent Title IX proceeding. Yet VCU recruited Shipper anyway, and she subsequently concluded that the “unfounded” charge against me was true (while determining the three other allegations were not true).

To the hearing panel’s credit, they rejected Shipper’s findings, ruling that I was not in fact responsible for non-consensual sexual contact. But it was too late: Shipper’s reckless pursuit of guilt — emboldened by VCU’s Title IX office — was the most unsettling experience of my life. Becoming the first elected African American governor in U.S. history was a walk in the park compared to this ordeal. And it has permanently damaged my reputation, regardless of my innocence.

Hopefully, campus officials can learn from the mistakes of the past. I came to learn that VCU was already under a voluntary resolution agreement signed by President Michael Rao in 2014, due to issues with its mishandling of previous Title IX cases. It is imperative that VCU and all institutions of higher education ensure fairness for both parties in situations such as these.

I hope that my experience will inform future Title IX proceedings, as we continue to clamp down on sexual misconduct. I pray that we can protect accusers and the accused by upholding due process.

Fortunately, the Department of Education is doing its part to guarantee due process for all parties, while recognizing the tragedy of sexual misconduct on campus. Following Secretary DeVos’ lead, administrators, faculty, staff, and students can rest assured that their voices will be heard.

With due process, we can all rest assured that the presumption of innocence will prevail—followed by the truth.

Source: https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html

Title IX Uncategorized

Restoring Impartial and Fair Investigations on Campus

Post author By saveadmin
Post date May 29, 2020

Restoring Impartial and Fair Investigations on Campus

SAVE

May 29, 2020

The new Title IX regulation, recently released by the Department of Education, contains several provisions designed to assure impartial and fair investigations on campus: http://www.saveservices.org/2020/05/new-title-ix-regulatory-text-34-cfr-106/ The relevant provisions, with key words in bold, are listed below:

Section 106.45 (b)(1): A recipient’s grievance process must—

(i) Treat complainants and respondents equitably….

(ii) Require an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence—and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness;

(iii) Require that any individual designated by a recipient as a Title IX Coordinator, investigator, or decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment;

These regulatory provisions represent an important step in restoring impartiality and fairness to campus investigations.