Category: Title IX

6th Circuit Returns Title IX To Its Davis Root (Updated)

You might have read about the Supreme Court’s decision in Davis v. Monroe County Board of Education. It’s been discussed here numerous times. But it’s never mentioned in anything written by a Title IX activist group or article about “survivors” or the rape epidemic on campus. No college dean ever refers to it, although the lawyers for universities know it very well when their school is sued by an alleged victim.

The reason for this is plain: the law from which the Title IX campus sex industry was born fails to support its existence and, by its explicit words, contradicts the existence of the unlawful scheme forced upon colleges by the bureaucrats in control of the Department of Education’s Office of Civil Rights in their “Dear Colleague Letters.”

They desperately want to push their bastardization of the law, purported “guidance” with denial of federal funding as the club to beat schools into submission, even though it never went through the regulatory process required by the Administrative Procedures Act and was created out of whole cloth to push and normalize a radical anti-male sexual agenda. And over time, Davis was ignored and forgotten.

Sixth Circuit Judge Alice Batchelder, however, remembers.

A victim of “student-on-student sexual harassment” has a private cause of action against the school under Title IX of the Education Amendments of 1972 (Title IX), 86 Stat. 373, codified as 20 U.S.C. § 1681, et seq., based on the formula first set out in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Under that formula, the sexual harassment must meet a certain standard and the evidence must satisfy the elements for an intentional tort. Our particular focus in this appeal is on the requirements that the harassment must be “pervasive” and the school’s response must “cause” the injury.

Title IX does not prohibit peer-on-peer sexual harassment. Note the words “sexual harassment,” as it has nothing to do with rape or sexual assault, per se, but only to the extent those words related to sexual harassment. Rather, Title IX relates only to the school’s duty not to discriminate on the basis of sex. It can’t refuse to field a women’s fencing team if it has a men’s team, as that would be discriminatory. But nothing in the law has ever required a college to become intimately embroiled in the ordinary student-on-student interactions and relationships.

In Davis, the Supreme Court laid it out in a clear test.

It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities. (Emphasis added.)

Notably, these three prongs, set forth in the conjunctive, appeared nowhere in the DCL. Catherine Lhamon, then head of the OCR, decided that she, an unelected bureaucrat, got to make up her own test, unbound by the Supreme Court, whose test was too stringent for her tastes.

This not only gave rise to colleges creating policies and procedures the law neither required nor sanctioned, but created a false belief in the entitlement of female students to have Big Brother oversee their every sexual encounter and punish male students when, and whenever, they felt it wasn’t to their satisfaction. Nothing in Davis gave rise to this “right” of female students to demand colleges vindicate their sexual choices and feelings with other students. Yet, it’s taken for granted that women can turn to their school to punish any male against whom they raise a grievance.

But what if the harassment complained of is as bad as the Davis test requires?

In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries.

This is a critical aspect of a university’s duty, that assuming the harassment rose to the level that implicated any Title IX duty at all, it was not the one-time act of sex which was subsequently regretted, but only sexual harassment that occurred afterward, after the student-on-student encounter, after the school was alerted and after the school was “deliberately indifferent” to that particular accuser’s complaint.

In other words, unless there was substantive reason to believe that a student would persist in “severe, pervasive and objectively offensive” conduct after the university was alerted to a complaint, and then was deliberately indifferent, Title IX wasn’t implicated at all. The vast majority of Title IX complaints fail to meet the stringent criteria for sexual harassment, and almost none of them involve conduct that went beyond a one-time sexual encounter.

In other words, there was no on-going conduct to address and nothing more than “don’t do it again” needed to satisfy the deliberate indifference prong. Expelling male students for sex where a woman enthusiastically consented to, if not initiated, sex when she was moderately drunk (though not incapacitated) finds no justification in the law whatsoever. This was never a requirement of Title IX. Not even close.

A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation. Because none of the plaintiffs in this case suffered any actionable sexual harassment after the school’s response, they did not suffer “pervasive” sexual harassment as set out in Davis and they cannot meet the causation element.

Colleges have long hidden behind the DCL from OCR as justification for destroying the lives of male students in order to “fulfill” their duties under the law. As the Sixth Circuit holds, this is a lie, a falsehood perpetuated by “survivor” activists and their friends in media, who have created a mythology on campus of entitlement to punishment of males for sexual encounters between students.

It’s not the law. It was never the law. And schools’ claims that the law required them to manufacture procedures to protect their female students and ruin their male students has no greater basis in law than did Lhamon’s Dear Colleague Letter.

Update: At Inside Higher Ed, Title IX activist Laura Dunn is not happy with the decision.

“What judges should keep in mind is that it’s a choice,” Dunn said. “There’s an ability to interpret the law and you have to decide what perspective you’re coming from. A lot of conservative ones think, ‘We’re going to be close to the law.’ I really suggest you think about the effect on social issues … That’s a horrible ruling and a horrible reality to subject victims to. This judge has no understanding beyond the law of how her words will impact survivors.”

But there’s more:

“Sexual assault does not need to be pervasive — it can happen once and that’s enough,” Dunn said. “You’re not only narrowing the law, you’re pretty flagrantly narrowing it so far to render it almost useless.”

Except the Supreme Court held that if it’s not “pervasive,” Title IX doesn’t apply, and as of this point in time, Dunn has no vote on SCOTUS. Rarely has anyone so clearly argued that their position is wholly unsupported by law, but they want courts to ignore the law and rule to achieve their preferred social policy.

Yale University. Photo: Shutterstock

Saifullah Khan, who has been banned from Yale University on two occasions, including on an allegation of rape, has sued the institution for $110 million.

In the midst of the #MeToo movement, the Khan case has garnered state and national attention. Protests and petitions calling for Khan to be expelled from the university erupted soon after the rape allegations, and continued even after a jury acquitted him of the charge in March 2018 and Khan sought reinstatement.

Now, Khan’s high-profile attorney Norm Pattis is looking to make political correctness in the era of #MeToo a central focus.

Khan filed a federal lawsuit Friday against the university and a dozen Yale officials seeking the $110 million in damages. Pattis said his client came up with the $110 million figure.

“Whatever is going on in college campuses today is not good,” the Pattis & Smith founder said in an interview Friday, just hours after filing the 28-page lawsuit. “Mr. Khan was acquitted by a jury, and Yale [buckled] under to the PC crowd, and threw him out. The Khan acquittal captured national attention. This is the dark side of the #MeToo movement. It’s sexual and moral hysteria. Well, game on!”

“Yale realizes young people on campus experiment. They distribute condoms in the laundry room, for God’s sake,” Pattis said. “What do they expect kids are doing in the middle of the night? Yale is hypocritical, and they should come back to the 21st century.”

In the lawsuit, Pattis takes further aim at Yale, writing, “The campus is also in the thrall of various claims of identity entitlement, rendering the campus less a place of unbridled intellectual stimulation, and more a smug hothouse catering to social justice warriors intent on remaking the world in their own image.”

As of Friday afternoon, Yale had not assigned an attorney to represent it. And no one from the university’s office of public affairs and communications responded to a request for comment.

Khan, a 26-year-old Afghan, became a full-time Yale student in the fall of 2012. He was expelled soon after the allegations of rape in October 2015 by a female student became public. Khan sought readmission after his March 2018 acquittal. Yale allowed him to resume his studies as a full-time student in the fall of 2018.

But the lawsuit alleges Khan was then expelled again in October 2018. The lawsuit cites a Yale Daily News story in which Khan is alleged to have had a sexual relationship with a man and then committed physical violence because he slapped him. The Oct. 5, 2018, article, which students write, was titled “Khan and his consort.” Just days after the article appeared, Khan, the lawsuit states, was told he was suspended, effective immediately, due to an “emergency.” The lawsuit says the Yale newspaper article includes claims that “were never proven or substantiated.”

The lawsuit elaborates: “According to Dean [Marvin] Chun, the suspension ‘appears necessary for your physical and emotional safety and well-being and/or the safety and well-being of the university community.’” The lawsuit says Khan was barred from campus and prohibited from attending any classes.

With regard to what Chun said, the lawsuit states: “There is no credible evidence that permitting Mr. Khan to attend classes poses a threat of harm to himself or anyone affiliated with Yale. Indeed, there was no reason whatsoever to suspect that Mr. Khan was a danger to himself or others as a result of the allegations reported in the Yale Daily News in October 2018.”

Then, the lawsuit says, one month later in November 2018, Khan was permitted to return to campus for a hearing on the Jane Doe 2015 sexual assault allegation. But the lawsuit states that the hearing was “a mere sham,” and Khan is still not permitted at the university.

Among other things, the lawsuit says, his counsel was not afforded the right to speak. It claims Khan could “neither pose questions to witnesses, not tender objections when panel members repeatedly asked compound questions, assumed facts not in evidence, or otherwise transformed the hearing process into little more than the stillborn delivery of a predetermined outcome.”

The lawsuit cites loss of reputation, emotional distress and suffering and loss of educational opportunities.

Read more:

Suspended Yale Student Acquitted in Halloween Rape Case

December 11, 2019

REPORT: 7 in 10 top universities do not expressly guarantee the presumption of innocence in campus sexual misconduct proceedings.
ZERO surveyed institutions guarantee all basic due process protections, or even those required under the Department of Education’s proposed Title IX regulations.
Almost 9 in 10 universities earned a D or an F for sexual misconduct policies; proposed regulations would raise grades to C or better.
PHILADELPHIA, Dec. 11, 2019 — Innocent until proven guilty? Not on college campuses.

Top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education.

With new Department of Education regulations on Title IX enforcement expected soon, FIRE’s report shows that colleges currently fail to provide students with even the most basic due process protections. This means that many colleges’ policies may have to be revised significantly after the regulations go into effect.

“Would you feel comfortable defending yourself without information about what you supposedly did wrong? Would you trust a jury that didn’t get a chance to see all the evidence? You shouldn’t — but college students across the country routinely face these troubling circumstances,” said FIRE’s Susan Kruth, lead author of the report. “Disciplinary procedures at top universities aren’t fundamentally fair because they don’t guarantee even the most basic safeguards against incorrect conclusions.”

“Spotlight on Due Process 2019–2020” examines policies at 53 top national universities to see how many of 10 fundamental procedural safeguards they guarantee students. These include basic protections familiar to all Americans, such as the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 49 receive an overall D or F grade for guaranteeing no more than 4 of those 10 safeguards.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 22 institutions that received an F grade for their sexual misconduct policies, 17 have been sued by accused students over the lack of fair procedure.

Less than 30% of top universities expressly guarantee the presumption of innocence in all serious non-academic misconduct cases, and less than 60% explicitly require that fact-finders — the institution’s version of a jury — be impartial. Only 28% guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear that students overwhelmingly want them to. Each element in FIRE’s report is supported by a majority of college students surveyed by YouGov for FIRE in 2018 about their views on campus due process protections:

85% of students think their accused classmates should be presumed innocent until proven guilty, but only 28% of America’s top universities explicitly guarantee students that protection.
Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students or their representatives a meaningful opportunity to cross-examine witnesses.
This landscape may shift if the proposed Department of Education regulations on Title IX — the 1972 law that prohibits sex discrimination in federally funded educational programs — are enacted. Today, 87% of institutions receive a D or F grade for their failure to protect the due process rights of students accused of sexual misconduct. Enacting only the proposed regulations would raise surveyed universities’ grades to a C or better.

“All over the country, students accused of misconduct on campus routinely face life-altering consequences without any of the procedural protections one would expect in such serious cases,” said Samantha Harris, FIRE vice president for procedural advocacy. “It looks like the Department of Education’s new regulations will ensure greater due process for students involved in certain types of cases, but universities should already be providing these important protections in all cases of serious non-academic misconduct.”

“Spotlight on Due Process 2019–2020” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org

‘If everything is harassment, then nothing is’

A year after the Department of Education proposed changes to regulations on campus sexual misconduct investigations – and nine months after the public comment period closed – the final regulations have yet to be released.

Opponents of due process in Title IX proceedings are still trying to weaken the proposal, scheduling meetings with the Office of Management and Budget until the week before Christmas.

If anyone was concerned that Secretary Betsy DeVos* was buckling under the pressure from the “Believe Survivors” lobby and its allies across the mainstream media, she dispelled those concerns in a speech to the Independent Women’s Forum, which gave her its “Woman of Valor” award Wednesday.

Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation, pointed out that DeVos’s remarks “don’t suggest an intent to weaken” the proposed changes despite the long-delayed release of the final rules.

DeVos connected her department’s work to rein in “kangaroo courts” with her guiding principle that “government is generally not the solution to any problem,” especially in education:

So, we are working to dismantle the government social engineering in education, including the previous administration’s staggering overreach on Title IX. …

Justice demands humility, prudence, and truth. And the truth is: the so-called “guidance” by the prior administration [the “Dear Colleague” letters] failed too many students.

Here is what we know happens: a student says he or she was sexually assaulted on campus. If he or she isn’t urged to keep quiet or discouraged from reporting it to local law enforcement, the case goes to a school administrator. The accused may or may not be told of the allegations. If there is a hearing, both the accuser and the accused may or may not be allowed legal representation.

Whatever evidence is presented may or may not be shown to all parties. Whatever witnesses—if even allowed to be called—may or may not be cross-examined. And government dictated that schools must use the lowest standard of proof.

And now this campus official—who may or may not have any training in adjudicating sexual misconduct—is expected to render a judgement. A judgement that changes lives.

The department’s proposed regulation will “simply balance” the scales of justice, not tilt them, as opponents characterize it, she continued. It requires “basic due process protections” while offering schools “a menu of things schools … to help survivors heal from trauma and continue their education.”

DeVos connected Title IX overreach to the speech police on campus, which seek to “enforce ambiguous and incredibly broad definitions of assault and harassment”:

Too many cases involve students and faculty who faced investigation and punishment for only speaking their minds or teaching their classes.

Any perceived offense can become a full-blown Title IX investigation.

But if everything is harassment, then nothing is.

Punishing speech protected by the First Amendment trivializes actual harassment. Harassment codes which trample freedom of speech derail the primary mission of a school—of learning… [sic] that is, to pursue truth.

DeVos noted the University of Michigan has permanently shuttered its bias response team to settle a First Amendment lawsuit, but she expressed incredulity that the taxpayer-funded university “still employs 76 diversity-related administrators who cost taxpayers and students more than 10 million dollars in compensation every year. They focus on every kind of diversity except a diversity of ideas.”

The Trump administration stands against the “teams of speech bullies with the power to punish perpetrators of hurt feelings” at more than 200 colleges across the country, she said.

“Feelings are important, but learning isn’t about feelings. It’s about thinking. … This Administration won’t let students be silenced. We stand with their right to speak and with their right to learn truth.”

Read her full remarks.

*Disclosure

Date:

October 28, 2019

Source:

Iowa State University

Summary:

Interviews are the central component of any Title IX investigation, but new research finds the techniques investigators are using may not be the most effective. Researchers evaluated the available training programs for investigators and identified techniques and suggested practices at odds with science-based interviewing strategies.

Investigators of campus sexual assaults usually avoid bluntly asking victims to recall their attacks in vivid detail. This “trauma-informed” approach is used widely in investigations and is based on the belief that officials should not subject rape survivors to reliving such disturbing experiences without an empathetic ear.

The theory of trauma-informed care also offers an explanation as to why survivors might behave oddly in an interview, such as remembering only vivid details or describing them out of order when discussing their assault. Campus administrators say using this investigative practice is the best way to gather information and figure out the timeline of an incident without greatly upsetting a victim.

The association representing college administrators who investigate and adjudicate sexual violence cases on campuses has suggested some officials have taken this approach too far.

The Association of Title IX Administrators — named for the federal law banning sex discrimination on campus — published a statement last month contending that officials have sometimes not conducted thorough investigations into sexual assault claims. ATIXA says there have been cases when officials overlooked a lack of evidence in a sexual assault case because they believe trauma-related symptoms exhibited by a sexual assault victim likely prove the incident occurred.

The association asserts there is insufficient research to definitively prove that memory is affected by a sexual assault and how survivors respond to trauma long-term. ATIXA says administrators have “extrapolated” from existing studies far too much.

ATIXA’s claims have enraged some campus-based officials who specialize in the sex-discrimination law and investigate cases, as well as sexual assault survivor advocates. Those critics say ATIXA’s statement is a publicity grab.

“This represents a fundamental misunderstanding of what trauma-informed practices actually mean,” said Taylor Parker, a consultant with Safety Advisors for Educational Campuses LLC and the compliance coordinator and deputy Title IX coordinator at the Ringling College of Art and Design in Florida.

ATIXA released its seven-page position statement last month after association representatives noticed an “unhealthy direction in the field,” according to the statement. The association publishes these statements infrequently — only as a “nuclear option,” when it wants to send a strong message to the entire field, said Brett Sokolow​, the association’s president.

The statement notes that the trauma response to a sexual assault is a particularly controversial subject and cites a highly contentious 2017 article in The Atlantic blasting the work of experts who have studied the neurobiology of trauma and calling it “junk science.”

ATIXA’s statement said studies of the trauma-informed approach are incomplete.

“They are interesting to hear and definitely worth our time and thought, but they are perhaps like Copernicus, who asserted the Earth revolved around the sun long before there was any proof that it actually did,” the statement says of researchers focused on neurobiology and trauma. “If you listened to Copernicus in 1514 and decided as a result that heliocentrism was true, you were working off of theory at the time, not empirical science. It would be another 50 years before Kepler and Galileo elevated that theory to an observable working hypothesis. With our current level of neuroscientific understandings of trauma, we essentially are in 1514, and we have a lot of brilliant Copernicans around, but it will be another 50 years until we get to Galileo.”

Activists who defend the rights of those unfairly accused of sexual violence have seized on the Atlantic article and now the ATIXA statement to bolster arguments that the campus processes for adjudicating these cases are biased against the accused and lack due process.

These activists routinely disparage the Obama administration’s 2011 guidance for how colleges should adjudicate sex assault cases. Education Secretary Betsy DeVos rescinded those rules two years ago.

Sokolow said he hasn’t paid attention to responses from these groups, which include Stop Abusive and Violent Environments, or SAVE, and Families Advocating For Campus Equality (FACE).

ATIXA isn’t completely opposed to trauma-informed approaches, Sokolow said, But he’s concerned that it is routinely being used to supersede the investigative process.

At one university that Sokolow declined to name, a panel charged with making a decision on a sex assault case did not ask any questions of a survivor because the group had been advised that doing so would “re-traumatize” her. The accused student was found responsible for the assault but was not punished because he appealed, Sokolow said.

“We don’t want a trauma-informed approach to get in the way of learning evidence,” he said.

Sokolow said association members largely agree with the statement, which was vetted and voted on by ATIXA’s 20-member advisory board before being made public. But Title IX coordinators also believe the statement is “piling on,” Sokolow said.

These coordinators are frequently accused by survivor advocates and due process organizations of botching sexual assault investigations. They’ve also been involved in more court battles as Title IX-related lawsuits have skyrocketed, Sokolow said. This difficult work environment has resulted in high turnover in the profession. About two-thirds of Title IX coordinators have been in their positions for less than three years, according to a 2018 ATIXA survey.

Parker, the Title IX coordinator from Ringling College, didn’t think the statement was a matter of “right message, wrong time,” as Sokolow described it. She said she was angry.

“This is a publicity stunt,” she said, adding that she was not speaking on behalf of the college. “They want to find the next controversial statement and chisel out an area in the market. I think they are creating a problem that doesn’t exist so they can fix it.”

ATIXA’s statement includes a footnote saying that an association kit containing “best practices” for trauma-informed interviews can be purchased by members for free or at a discount. It can be purchased online by nonmembers for $499.

Laura Dunn, founder L. L. Dunn Law Firm PLLC and the survivor advocacy group SurvJustice, also dismissed the report as a publicity stunt.

Dunn said trauma-informed practices can counteract the often discriminatory tactics law enforcement uses to unearth details about sex assaults. The Justice Department outlined bias in the questioning of sexual assault and domestic violence victims during police investigations in a 2015 report.

Dunn said she did not agree with relying solely on victims’ behavior as a way to corroborate that a sexual assault occurred, but that behavior should be noted in an investigation.

“Perhaps ATIXA wants to seem reasonable and middle-of-the-road in issuing this statement, but its drafting and tone are unprofessional and at times pretentious,” she said.