Category: Title IX

Categories
Title IX

Education Secretary Betsy DeVos Issues New Title IX Rules To Protect Free Speech, Due Process for Accused Students

Screen Shot 2020-05-06 at 12.09.17 PM
(Screenshot via Youtube)

On Wednesday, Education Secretary Betsy DeVos formally announced the new rules related to Title IX—the federal statute that governs sexual misconduct in schools—thus completing a process that began more than a year ago, when the government first unveiled its proposed changes.

The new rules aim to protect victims of sexual misconduct while also establishing fairer procedures for the accused. The department believes the new rules will “balance the scales of justice on campuses across America,” a Department of Education spokesperson said during today’s press briefing.

Justin Dillon, an attorney with the firm KaiserDillon who specializes in campus misconduct adjudication, hailed the new rules as tremendously well thought out.

“Nothing Betsy DeVos has done since she took office will have a more lasting effect on people’s lives than this,” Dillon tells Reason. “It’s frankly inspiring to see how hard she and her staff have worked to get these regulations done and get them right.”

The new rules are similar to what the Department of Education proposed in November 2018. Most notably, the government has abolished the single-investigator model, which previously permitted a sole university official to investigate an accusation of misconduct, decide which evidence to consider, and produce a report recommending an outcome. Under the new rules, the final decision maker must be a different person than the investigator, and a finding of responsibility can only be rendered after a hearing in which a representative for the accused is able to pose questions to the accuser—i.e., cross-examination.

Importantly, the new rules narrow the scope of actionable sexual harassment to exclude conduct that ought to be protected under the First Amendment. Obama-era guidance had defined sexual harassment as “any unwelcome conduct of a sexual nature.” The new rules keep this definition but add that the conduct must be offensive to a reasonable person, severe, and pervasive. In practice, this should mean that schools will no longer initiate Title IX investigations that impugn free speech.

“This new rule strikes a powerful blow against campus censorship,” said a Department of Education spokesperson. “Campus free speech must not be sacrificed in the misguided pursuit of any other value.”

The new rules will also end the pernicious practice of universities initiating Title IX investigations in cases where the alleged victims are not interested in this course of action. Under previous guidance, any university official who became aware of a potential Title IX issue had to report it, thus triggering an investigation. Under the new guidance, school employees should make the Title IX office aware of potential issues, which will prompt these officials to reach out and offer support to victims. But a formal complaint that results in adjudication can only be initiated by the victim or their parents/legal guardians. This approach gives agency to victims and prevents schools from taking actions contrary to their wishes.

Nevertheless, victims’ rights advocates intend to fight the new rules in court. Catherine Lhamon, current chair of the U.S. Commission on Civil Rights and the former Obama administration official who presided over the changes that compromised due process, slammed the reforms as “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” That’s a gross misrepresentation of what DeVos has done, though not an unexpected one, given how irresponsibly activists and members of the media have characterized DeVos’s work.

It remains to be seen whether colleges and universities will carefully follow the new rules—much is uncertain about the future of higher education right now. Nevertheless, today is a big day for the restoration of basic due process and free speech rights in schools.

The new rules, which take effect in August, are available here.

ROBBY SOAVE is a senior editor at Reason.

Categories
Campus Sexual Assault Title IX

Does Due Process Silence Survivors?

Honest question for those putting out panicked press releases claiming that Betsy DeVos has just silenced rape survivors on college campuses:

How exactly does due process silence anyone?

The new Title IX regulations released today by the Department of Education outline a school’s legal obligation to respond to every report of sexual harassment or assault. They require schools to investigate all complaints and emphasize the importance of supportive measures (such as course adjustments; schedule changes; counseling; no-contact orders; dorm room reassignments; and/or leaves of absence) for all survivors, even those who choose not to file a formal complaint.

They also require schools to adopt investigatory and disciplinary procedures that are fair and unbiased.

So, to which of these procedures do the rules’ opponents object?

— Do they object to informing students of the specific claims against them in a timely manner?

— Do they object to letting accused students present witnesses in their own defense?

— Do they object to letting accused students present potentially exculpatory evidence, such as text messages?

Exactly which of these basic aspects of due process silences or otherwise harms survivors?

Many of the opponents of the new rules say they’re concerned that allowing accused students to question their accuser will retraumatize victims. But cross-examination does not have to be traumatic. In fact, the new rules recommend that college administrative proceedings employ certain “rape shield” protections, such as putting the parties in separate rooms; requiring that the questioning be done by a third-party; and prohibiting questions about an accuser’s unrelated sexual history.

Do the opponents of the rules object to any attempt to test the credibility of an accuser?

The Department of Education’s new Title IX regulations do not “roll back” protections for survivors. Rather, they codify existing case law. As such, they aim to ensure fairness and protect the legitimacy and the integrity of college disciplinary decisions. Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.

These new rules help to do that.

So tell me again how they silence survivors?

 

Source: https://www.iwf.org/2020/05/06/does-due-process-silence-survivors/

Categories
Title IX

DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct

Education Secretary Betsy DeVos released final regulations for schools dealing with sexual misconduct, giving them the force of law for the first time and bolstering due-process rights.  The rules preserve Education Secretary Betsy DeVos’s broad goals in overhauling Title IX.

By Erica L. Green

May 6, 2020

WASHINGTON — Education Secretary Betsy DeVos on Wednesday issued final rules for how public and private schools and colleges must address allegations of sexual misconduct, locking in protections for accused students and faculty but tempering earlier proposals that critics said would harm victims of assault and harassment.

The rules preserve Ms. DeVos’s broad goals in overhauling Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, by infusing legal standards in disciplinary proceedings that have been left largely to schools to navigate.

The new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which alleged victims and accused perpetrators can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.

Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”

To find a school legally culpable for mishandling allegations, they would have to be proven “deliberately indifferent,” in carrying out mandates to provide support to victims and investigate complaints fairly.

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Ms. DeVos said in a statement. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”

The final rules, which take effect in August, codify for the first time sexual assault grievance proceedings that until now were covered by Education Department guidance and recommendations.

The Obama administration issued a “Dear Colleague” letter in 2011 and a supplementary document in 2014, which defined sexual harassment broadly and held schools liable for incidents they knew about or “reasonably should” have known about. They asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged cross-examination and mediation between victims and accused students.

Victims rights groups said that approach shepherded in a new era of accountability at colleges, putting schools on notice that Title IX did not only address equal access to sports teams. The Obama administration found a pattern of cover-ups and rampant mishandling of Title IX proceedings in both higher education and elementary and secondary schools, and initiated high-profile investigations at schools that carried the threat of losing federal funding.

Fatima Goss Graves, president of the National Women’s Law Center, vowed to fight the new rules in court, saying victims “refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.”

“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone — even during a global pandemic,” Ms. Goss Graves said. “And if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”

When Ms. DeVos rescinded the Obama-era guidance in 2017, she said she acted, in part, to give new rules the force of law. But she also sided with conservatives and other critics who said the Obama guidelines favored accusers and gave little recourse to students accused of wrongdoing. Dozens of students have won court cases against their colleges for violating their rights under the Obama-era rules.

Ms. DeVos’s initial proposals, released in November 2018, elicited more than 120,000 public comments and prompted hundreds of meetings between Education Department officials and advocacy groups.

The final rules changed to address concerns raised by victims rights groups. The department amended provisions that would have allowed schools to ignore allegations of misconduct that occurred off-campus, and officials changed proceedings that critics argued would have re-traumatized victims.

For instance, the department did extend responsibility beyond campus, saying that schools would be obliged to investigate allegations of misconduct that occur in “a building owned or controlled by a student organization that is officially recognized by a postsecondary institution,” such as a fraternity or sorority house.

Jurisdiction also extends to “locations, events, or circumstances” over which the school exercised “substantial control” over students and the activities in which the harassment occurred. However, the rules do exclude actions that happen to students studying abroad.

It also softens initial proposals for cross-examination, which lawyers for accused students believed was crucial. It prohibits students from questioning each other in personal confrontations, leaving that to advisers and lawyers. It also allows colleges to hold hearings virtually, and to grant any request for the two parties to be in separate rooms while the hearing takes place.

In the case of cross-examination, a hearing officer must first decide if the questions are relevant, and questions about a person’s sexual history are not considered relevant unless they could establish consent or prove that someone other than the accused student committed the misconduct.

The final regulations also make exceptions for primary, secondary and other specialized schools, amid concerns that the draft regulations would have subjected small children to the same treatment as young adults.

Those schools are not required to hold a hearing or cross-examinations, though parties must be able to submit written questions. And students in primary and secondary schools can report their claims to any staff member, unlike colleges, where reports must be made to a high-ranking official.

The department maintained a Supreme Court definition of harassment: “Unwelcome conduct that is so severe, pervasive and objectively offensive” that it effectively denies a person access to the school’s education program or activity. But the final rule added that conduct could be harassment if “a reasonable person” would say it was.

The department also clarified that sexual assault, dating violence, domestic violence and stalking are also sexual harassment, and added definitions for the infractions that align with the Clery and Violence Against Women Acts. Those allegations would not have to meet a severe and pervasive standard.

The rules still mandate that schools dismiss complaints that do not meet the sexual harassment definition, even if the allegations are proven true.

The rules bolster the role and visibility of the Title IX coordinator, the main point person for facilitating the complaint process, and allow schools to appoint several staff members to the position. Those staff members are now required to provide “supportive measures” to accusers even if they choose not to go through with a formal complaint.

Cases involving students can be resolved through mediation, but those involving both staff and students cannot.

The rules require that accused students be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk.

The department added an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct. A school cannot punish a student or other complainant for making a claim just because a case resulted in an unfavorable outcome. And schools are warned against disciplining students for actions revealed during Title IX proceeding, such as underage drinking or sexual contact on campus.

The rules are the most concrete and wide-reaching policy measure of Ms. DeVos’s tenure. The Title IX overhaul was a priority for the White House, and President Trump has personally commended Ms. DeVos for the undertaking.

But the rules are almost certain to be challenged. Ms. DeVos’s critics have successfully halted or hindered several of her policies in court by challenging her adherence to federal rules for issuing regulations. Under the Congressional Review Act, the rules could be overturned by a simple majority of the Senate, but that would almost certainly require Democrats to retake control of the presidency and the Senate in the November elections.

Categories
Title IX

Biden’s Reade Denial Should Boost Title IX Rule Changes

Biden's Reade Denial Should Boost Title IX Rule Changes
(Biden for President via AP)

Joe Biden and the Democratic Party have suddenly come to realize that their previously professed, reflexive belief in sexual misconduct accusations was the wrong standard. Instead, with the sexual assault allegation against Biden by former staffer Tara Reade now roiling his campaign, the Democrats are saying that the accused as well as the accuser deserve to have their accounts heard and weighed impartially and with “due process,” to borrow from recent statements by House Speaker Nancy Pelosi and others.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos. The White House has been sitting on them for months, perhaps out of fear of being attacked as indifferent to survivors by Democrats, who have savaged DeVos for seeking fairness in campus sexual assault proceedings.

Democrats, emphatically including Biden, have been almost uniformly hostile to the proposed rules, while demanding a return to the Obama administration’s guilt-presuming “believe the woman” approach, which Biden led. But how can they justify continuing to attack the DeVos regulations while at the same time preaching due process for Biden?

On Friday morning, interviewed on MSNBC’s “Morning Joe,” Biden declared that “from the very beginning, I’ve said believing the woman means taking the claim seriously, and then it’s vetted, looked into.” He added that when evaluating sexual assault allegations, “in the end the truth is what matters.”Other prominent Democrats have gone even further in expressing newfound support for the rights of the accused. Speaker Pelosi remarked, “There’s a lot of excitement around the idea that women will be heard and will be listened to. But there’s also due process.”

Kirsten Gillibrand, long her party’s Senate guilt-presuming point person on the issue of sexual assault, asserted in an interview with WNYC’s Brian Lehrer that her mantra of “believe women” meant only that female accusers should be believed “to the extent that you then do an investigation.” Gillibrand has also maintained, “I stand by Vice President Biden. He’s devoted his life to supporting women and he has vehemently denied this allegation.” Meaning that she does not believe Tara Reade.

Randi Weingarten, president of the American Federation of Teachers, captured the party’s new consensus in an interview with the Washington Post. “Democrats,” she said, “always want to make sure that a woman is respected. But you also want to make sure that people have due process.”

Apart from Gillibrand’s curious suggestion that Biden’s political record answers the question of whether he committed personal misconduct, the standards recommended by Biden and his allies are both appropriate and welcome. They recognize both the need to ensure that sexual assault complainants are treated with the respect and sensitivity they deserve and the foundational importance of “due process” in evaluating such a serious allegation.

In fact, this rhetoric closely mirrors that offered by DeVos in 2017, when she rescinded Obama-era guidance and announced plans to develop the new regulations. DeVos stated that her goal was to ensure that “every survivor of sexual misconduct must be taken seriously,” but also that “every student accused of sexual misconduct must know that guilt is not predetermined,” since “due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

DeVos’ proposed regulations, released in draft form in 2018, provided a sense of her ambitious scope. Colleges would he held to account for sweeping serious allegations under the rug (as her Education Department has recently done in levying heavy fines against Michigan State and USC). But accused students would have a chance to meaningfully defend themselves through a hearing that would include the right for an advocate to cross-examine adverse witnesses and access to the evidence that the college gathered in developing its case.

The proposed regulations went forward and received significant public comment. They were cleared by the Office of Management and Budget last month. But they remain unreleased.

In 2018, leading Democrats criticized DeVos’ efforts, often in harsh terms. Gillibrand described the proposal as “betraying survivors of sexual assault and harassment on college campuses.” Pelosi issued a statement oddly claiming that the fairer adjudication system envisioned by DeVos “denies survivors due process.” Sen. Patty Murray demanded that DeVos “withdraw this rule, start over, build on the progress we’ve made instead of moving us backward, and work with us and women and survivors across the country.”

But now the allegation against Biden has suddenly created room for a rare moment of possible bipartisan accord, as both parties have rediscovered the importance of due process — which, of course, exists not simply to protect the rights of the accused but to help produce a just adjudication.

Releasing the new regulations now would not only help keep politicians honest on this issue, but also would provide colleges with sufficient time to make the necessary procedural changes for the fall semester. It might even serve as a strike against political cynicism, if Democratic politicians prove that their newfound support for due process comes not from political expediency but instead from an appropriate commitment to fairness and justice for all.

KC Johnson is co-author, with Stuart Taylor Jr., of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Stuart Taylor Jr. is co-author, with KC Johnson, of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Categories
Title IX

Release The New Title IX Regs, Madam Secretary

Even the last of the trailing indicators, Elizabeth Bruenig, can’t avoid facing the one thing, the only thing, that is known with absolute certainty now.

This is collateral damage that Democrats — who have spent the last few years championing the #MeToo movement — should be loath to incur. Democrats who subject Ms. Reade’s allegations to a level of scrutiny not widely applied to accusers in similar circumstances — such as Christine Blasey-Ford, who famously came forward during the confirmation of Justice Brett Kavanaugh for the Supreme Court to allege that he had sexually accosted her in high school — also open up past and future cases to reproachful disregard. Conservatives, like my colleague Bret Stephens, can see the plain gulf between how Democrats have approached sexual assault in politically advantageous cases versus Ms. Reade’s, and the evident hypocrisy threatens to discredit the entire enterprise.

Whether Biden sexually assaulted Tara Reade or not, a fact that will never be determined because Reade chose not to avail herself of the mechanism America uses to make such determinations, the Democrats, the pseudo-feminists and most importantly, Joseph Biden know a far harder truth: They are hypocrites. They are and were wrong. There must be due process for the accused.

KC Johnson and Stuart Taylor did the math.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos.

It’s been a terrible struggle over the past decade for male college students to eke out what little opportunity they could to defend themselves against accusations wrapped in a litany of inane excuses that made everything, no matter what, proof of guilt. When the 2011 Dear Colleague Letter and its progeny were rescinded, activists cried that giving the accused a tenth of a chance to defend themselves was enabling rapists.

Can the same people who gave us whiplash in their pivot from Believe All Women to Take Women Seriously But Vigorously Investigate live with their flagrant hypocrisy by persisting in their disingenuous complaints about the new Title IX regs? As KC and Stuart note, “if this long overdue change is sincere,” they cannot. It’s a huge “if.”

But the head cheerleader, and the presidential nominee who has taken the hard position against giving male college students due process, is none other than the man who asks it for himself now. Is joe Biden “sincere”? Does Joe Biden have the integrity to admit he’s been dangerously wrong up to now, but he’s seen the light?

FACE, families Advocating for Campus Equality, sent Biden a letter putting the question to him.

We are hopeful your recent experience has made you realize that “sexual misconduct” is no longer just about sex. The “rules of engagement” for sexual misconduct are a moving target. Historically-acceptable hugs and genuine forms of non-sexual expressions of affection are no longer acceptable. Worse still, the consequences can be a swift end to education, career, and sometimes can even be life-ending. This affects not only those wrongfully disciplined, but also their mothers, fathers, siblings, grandparents, and spouses.

Children and young adults are not puppets to manipulate as props for the purpose of advancing political agendas. Yet that is today’s reality. Just like you have been accused of touching women in ways that cause them to “feel uncomfortable,” so too have many men, women, and LGBTQ students and professors been disciplined for the often subjective feelings of their accusers.

As a well-respected public figure, you are fortunate to have the opportunity to survive accusations of impropriety for your well-intended gestures, as well as an audience willing to forgive. Unfortunately, young students and faculty members only experience draconian repercussions for the same types of behaviors.

Joe Biden enjoys the support of his followers, his party and most of the media, who will do their part to seek out faults in Tara Reade’s accusations and history, ignoring the litany of excuses that have protected other accusers, from Christine Blasey-Ford to every woman on campus to every accuser on social media. And still Biden is constrained to defend against the accusations. What of the college sophomore, the 19-year-old male student who has neither the powerful friends and supporters nor the ability to air his denial on Morning Joe? If Biden demands his chance to deny guilt, would he demand the 19-year-old male student be presumed guilty?

Senator Biden, please, take off your political hat for just a moment, and open your eyes to what’s happening to innocent students and faculty who could be your sons, daughters, brothers or sisters – because, as you must now know, “doing the right thing” no longer protects you in this ‘accusation = guilt’ world.

Whether Biden sexually assaulted Tara Reade will forever be a mystery, but in a principled world, he would be presumed innocent because the burden is, must be, on the accuser to prove his guilt. The same thing is true of male college students accused of sexual misconduct, and it’s time for Biden to man up to the egregiously wrong position he’s taken for too long and concede that every accused must be afforded due process. Just like him.

Now is the moment, the “perfect storm,” to release the new Title IX regs that will, hopefully, give male college students a fighting chance to defend themselves from accusations. It may still be that neither Biden, nor his supporters, are sincere in their epiphany that due process matters, and their hypocrisy will then be as flagrant as possible. It will be out there for all to see.

But there will never be a better moment than now. Secretary DeVos, please release the new regs now.

Categories
Title IX

Callisto Campus, tool for documenting sexual assault at colleges, discontinued

Callisto reverses decision to delete account data following user concerns

 

By  

Callisto Campus, a tool available for Stanford students to document and report sexual and relationship violence, will be discontinued on June 30 and replaced with another version of the program.

Callisto is a third-party online platform that allows students to document and time stamp experiences with unwanted sexual conduct. If a student is not ready to submit a report to the University, their report is saved in the system, with the option for it to be submitted later.

“One of the unique features about Callisto was the ability to have your report be submitted to the Title IX office in the event that the perpetrator that you had listed also matched the perpetrator another survivor listed,” wrote former ASSU President Shanta Katipamula ’19 M.S. ’20 in an email to The Daily. While chair of the Undergraduate Senate, Katipamula also authored the bill proposing the three-year pilot of Callisto in 2016.

While Callisto Campus will be discontinued, this year Callisto will launch a new product that connects victims of sexual misconduct to attorneys who help them understand actions they can take, according to the Callisto website. Stanford students will have free access to this platform, but the University is still deciding whether to initiate a new partnership with Callisto, according to ASSU Co-Director of Sexual Violence Prevention Krithika Iyer ’21.

“We are investigating what a potential partnership would entail, and whether a new Stanford-Callisto partnership would be beneficial for survivors,” Iyer wrote. “We will be seeking input from the student community.”
“Callisto is transitioning some of its services over the summer and it will no longer be based on a partnership model with individual schools,” wrote Senior Associate Vice Provost for Institutional Equity and Access Lauren Schoenthaler in a statement to The Daily.

An update on the Callisto Campus website initially read that the service would be replaced with a new version of Callisto and that all account data would be deleted, quickly leading some to raise concerns.

“This would undermine the ability of the platform to identify repeat perpetrators on campus,” Iyer wrote.
Stanford Law professor Michele Dauber was one of the individuals who reached out to Callisto to share her concerns. One of her concerns was Callisto’s inability to inform users that their data would be deleted.

“Because there are no records kept of who the users are, Callisto doesn’t stay in contact with their end-users,” Dauber said. “In other words, if you were someone who had made such a report, you wouldn’t get an email from Callisto saying, ‘we’re changing our business model.’”

She spoke to the trauma that this could create for survivors who had placed their trust in the platform.

“They had trusted this entity because it was created by survivors and then found that all of their information had been deleted when they didn’t know it,” she said.

Callisto has since reversed its decision to delete the data.

“With respect to the feedback we have received from our partners and the extraordinary challenges posed by COVID-19, we are not deleting this data,” wrote interim Callisto CEO Tina Robilotto in an email to The Daily. “We will maintain the record data even after Callisto Campus is decommissioned and the new product is launched to our partner campuses.”

“While I understand that they’ve now understood the error of this decision and are no longer going to be deleting records, the initial decision to do so was poorly communicated and breached the trust survivors had placed in their system,” wrote Katipamula.

Dauber complimented Callisto’s “willingness to admit a mistake and reverse it.”

Schoenthaler said that Callisto had informed the University on Thursday morning that it no longer had plans to delete the records, calling it “great news.”

Dauber urged students to download reports they had made to Callisto to ensure they are preserved, and Iyer made a similar recommendation.

“While Callisto has committed to not deleting any records, the ASSU recommends that students download their report if they want to be absolutely sure that they retain a permanent copy,” Iyer said.

Despite Callisto Campus’s unique function, Iyer told The Daily that the platform has not been sufficiently advertised to students and that she hopes to increase awareness about it in following years.

“Data from the AAU survey indicate that only 9% of Stanford students are aware that Callisto Campus is an available resource,” she said. Iyer also reported efforts to ensure that Callisto is included in New Student Orientation information sessions next fall.

Dauber called the episode a “cautionary tale” about Silicon Valley’s tendency to rely on technology to solve problems.

“I think Callisto came from the best of intentions but also was riding that wave of easy assumptions about technical fixes for a very hard social problem,” she said. “There is no shortcut, in my opinion, to fixing the problem of campus sexual assault.”

This article has been updated to include a clarification from Iyer on the tool to be included in New Student Orientation information sessions.

Contact Esha Dhawan at edhawan ‘at’ stanford.edu. 

Categories
Title IX

COVID-19 Must Not Delay Enactment of New Title IX Regulations

COVID-19 Must Not Delay Enactment of New Title IX Regulations
U.S. Secretary of Education Betsy DeVos (Credit: Gage Skidmore)

COVID-19 Must Not Delay Enactment of New Title IX Regulations

April 16, 2020 by 

Sixteen months ago, the Department of Education proposed Title IX regulations that take seriously the rights of both victims and the accused in campus sexual misconduct proceedings.

Since then, the department has reviewed more than 100,000 public comments on those regulations, incorporating feedback from diverse stakeholders.

Despite this opportunity for robust public comment, opponents of these regulations have made clear from day one that they will do everything they can to ensure they are never enacted — including, recently, sending four letters asking the department to defer the rulemaking until after the COVID-19 crisis has passed.

The department must not give in to these opportunistic and disingenuous efforts to thwart regulations that would bring desperately needed balance to campus sexual misconduct adjudications.

Campus sexual misconduct proceedings have been seriously out of balance since the department issued a Title IX “Dear Colleague” letter that transformed the way universities adjudicated sexual misconduct cases.

The letter eviscerated due-process protections for accused students and kicked off an era of aggressive Title IX enforcement that led many universities to hold proceedings rigged against the accused in order to appear serious about combating sexual assault.

As soon as Secretary of Education Betsy DeVos announced in September 2017 that the department was withdrawing the 2011 Dear Colleague letter in favor of a more balanced approach to Title IX rulemaking, supporters of the previous guidance made clear that they would do everything in their power to stop the new rules.

When the department issued interim guidance, the new guidance was immediately challenged in court by a coalition of organizations — including three of the groups now calling on the department to suspend Title IX rulemaking due to COVID-19.

After the department issued its proposed Title IX regulations in November 2018, it opened a notice-and-comment period during which it received an unprecedented number of public comments.

Pennsylvania Attorney General Josh Shapiro immediately threatened legal action to block the rules’ implementation and organized a coalition of state attorneys general who wrote to the department objecting to the regulations.

Many of these attorneys general, Shapiro included, also signed on to one of the letters now citing COVID-19 as the reason the regulations should not go into effect.

In November 2019, the regulations moved to the final step before enactment: review by the White House’s Office of Management and Budget. OMB review is not intended to be a second notice-and-comment period, but rather a final opportunity to raise concerns that may have been overlooked.

Immediately, opponents of the rule — despite already having participated in the notice-and-comment process — began scheduling OMB meetings out as far as possible, in what appears to be another effort to delay adoption of the regulations.

The final two meetings scheduled were by the Women’s Law Project and Equal Rights Advocates, both signatories on one of the COVID-19 letters.

Many of the groups now asking the department to suspend rulemaking are associations of college administrators.

These same administrators have also been publicly touting the need, and their ability, to continue with Title IX adjudications during the crisis by using videoconferencing and other technology.

If administrators can use these technologies to conduct investigations and hearings, they can certainly use the same technologies — not to mention the additional time on their hands — to prepare to make changes to their policies under regulations about which they have known for the past 16 months.

These recent efforts to capitalize on the pandemic should be seen for what they are — the last in a long and consistent line of efforts to ultimately delay the regulations’ adoption until the next election in the hope that they will never take effect.

Accused students have waited long enough for even a modicum of basic fairness. The new rules must be enacted now.

Publication of the regulations does not mean that they must be implemented instantaneously: there is always a grace period for schools to come into compliance, a period that could theoretically be extended, if necessary, in the face of exigent circumstances.

Universities have been on notice of these proposed changes for 16 months now.

If they have failed to plan and are not ready to provide these basic procedural protections, they have only themselves to blame.

About the Author

Patricia Hamill is chair of the Title IX, Due Process and Campus Discipline practice at Conrad O’Brien, PC in Philadelphia. Samantha Harris is a campus disciplinary attorney at the Foundation for Individual Rights in Education in Philadelphia. They wrote this for InsideSources.com.
Categories
Due Process Sexual Assault Title IX

Reform Title IX Now

The Department of Education’s (DOE) reform of Title IX—the law that bans discrimination based on sex at federally-funded schools—has been a long time coming. For three Senators, it has not been long enough. They strenuously object to the impact on how colleges handle accusations of sexual misconduct. No longer will an accused be presumed guilty until proven innocent. Instead, he will be accorded due process.

On March 31, Patty Murray—the leading Democrat on the Senate education committee—Elizabeth Warren, and Kirsten Gillibrand sent a letter to Education Secretary Betsy DeVos to express their opposition to finalizing the reform. “We urge you not to release the final Title IX rule at this time,” they argued, “and instead to focus on helping schools navigate the urgent issues arising from the COVID-19 pandemic.”

This is an odd argument. Now seems to be the perfect time for colleges to work on policy and administrative matters. Campuses are empty. No sexual misconduct hearings will be interrupted; students will be spared the confusion of a mid-semester policy change; administrators can implement regulations before the new academic year.

Colleges are hardly caught off guard. The reform began on September 22, 2017 when the DOE withdrew the controversial Dear Colleague Letter (2011) that governed the treatment of sexual misconduct accusations on campus. The Obama-era Letter was widely criticized for mandating a low standard of proof for findings of guilt and encouraging the denial of due process, such as a defendant’s right to a lawyer. The DOE’s replacement guideline was officially made public on November 29, 2018 when the Federal Register published “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.”

The proposed reform received vast attention and backlash in this time of #MeToo that demands automatic belief of women’s accusations. in January 2018, three national public interest organizations, including the highly influential National Women’s Law Center (NWLC), sued DeVos and the DOE to block the Title IX reform. The lawsuit claimed that the “new and extreme Title IX policy…was issued unlawfully and based on discriminatory beliefs about women and girls as survivors of sexual violence, in violation of the Constitution.” The lawsuit was eventually dismissed.

Senator Murray has also attacked the Title IX proposals. A news release from her office reported on Murray’s statements at a Senate hearing on campus sexual assault. “I stand with you [accusers] and I’m going to keep fighting to stop what happened to you.” Murray accused the DOE of being “callous” and ignoring “the experiences of survivors,” which would “discourage students from coming forward after being sexually assaulted.” Gillibrand has decried DeVos as favoring “predators over survivors.” Warren has stated, “There’s no greater example of how we’re failing students and teachers than Betsy DeVos, the worst Secretary of Education we’ve seen.” These statements do not argue for the delay but for the derailment of DOE’s plans.

Liberals view the new rules as a shift to the right and an abandonment of Obama-era policies. Consider two definitions of a key term, “sexual harassment.” According to the Dear Colleague Letter, “Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” This broad characterization includes bad jokes and leering glances. By contrast, DeVos uses the reigning Supreme Court definition of “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This is a far more limited definition.

Why, then, are the 3 Senators calling for delay rather than dismantlement? The coronavirus is unlikely to disappear as an issue before the 2020 election. And, if Joe Biden wins, he has promised the reform would be withdrawn. This process would be be easier, however, if policy changes were not already implemented.

Stalling the DOE reform seems to be a conscious strategy of its opponents. According to Tulane University Title IX coordinator, Meredith Smith, the NWLC orchestrated a sequence of delays with various victims rights groups. Smith stated, “So there was this delay strategy happening. We would hear that the Department of Education was about to release the regulations and then the National Women’s Law Center and all these other groups would parachute in and get more and more meetings on the calendar which push [the release date] back.” They requested a long series of meetings with the Office of Management and Budget (OMB), for example. During the final public commentary on a regulation, individuals can meet in person or over the phone with OMB officials to share concerns; this process usually takes a couple of days, With the DOE regulation, the first meeting was November 13, 2019, and the process ended on March 27, 2020. It stretched over 4 months.

A recent article in the National Review, entitled “Coronavirus Is No Excuse to Delay the Education Department’s New Title IX Regulations,” declared, “Those making this argument [for postponement] are taking advantage of a crisis to try to keep due process out of college campuses.” They are gaming the system.

The DOE reform returns due process to campuses. It also offers relief to lawsuit-prone schools that now function as police, judge and jury in handling students and faculty accused of sexual misconduct. Increasingly, colleges are sued in federal court by those who were found guilty without a fair hearing. As a headline in the Detroit Free Press stated. “Courts ruling on side of students accused of sexual assault. Here’s why.” The “why” is the violation of their due process rights.

Justice delayed is justice denied. And Justice must not be further denied.

Source: http://www.ifeminists.com/e107_plugins/content/content.php?content.1467

Categories
Title IX

Let’s Not Delay Due Process On Campus


Under Title IX, colleges have an obligation to address sexual assault on campus.

Colleges have a corresponding obligation to treat all students fairly. Unfortunately, many colleges have created secret sex tribunals that stack the deck against accused students in order to increase discipline rates.

The tribunals often dispense with the presumption of innocence; deny students the right to see the specific charges or evidence against them; and deny accused students the opportunity to present evidence that might demonstrate consent, such as text messages.

Such procedures violate basic standards of fairness and have led to many miscarriages of justice.

Hundreds of students have successfully sued their colleges for unfair treatment.

But few colleges have altered their policies in response to such rulings.

It’s time for the Department of Education to issue regulations requiring schools to adopt fair and unbiased procedures.

Because without due process, there can be no justice.

Categories
Title IX

Civil Liberties Groups Push Title IX Rule Release

Two civil liberties groups have urged the U.S. Department of Education not to delay the release of proposed regulations under Title IX, the law prohibiting sex discrimination in institutions that receive federal funding, despite institutions’ occupation with the coronavirus pandemic.

The shift of colleges to primarily online operations means it is “an ideal time” for officials to change their policies to be in compliance with new Title IX regulations, the leaders of Speech First, a campus free speech organization, and the Independent Women’s Law Center, which advocates for reduced government control, wrote in a letter to Education Secretary Betsy DeVos and Assistant Secretary Kenneth Marcus. The letter called attempts to delay the final regulations, which were proposed in November 2018, “a disingenuous attempt to put off indefinitely the implementation of rules that certain senators and special interest groups oppose on the merits.”

Several members of Congress and state attorneys general have called on DeVos to delay the final rule, suggesting that institutions are putting all efforts toward the basic needs of students during the coronavirus pandemic. But waiting on the rule would mean “biased investigatory procedures that stack the deck against the accused” will continue for students in the Title IX process at colleges, the letter said.

“All stakeholders in America’s institutions of higher education — from students and parents to faculty and administrators — deserve a just system, and they deserve it now,” Nicole Neily, president and founder of Speech First, said in a release. “At a time when the COVID-19 pandemic has created much uncertainty in the education community, the department can provide clarity with respect to Title IX by issuing the regulations as soon as possible.”