Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault
WASHINGTON / January 7, 2019 – A report released today analyzes appellate court decisions on campus sexual assault, and concludes “the findings of the 14 appellate decisions are generally consistent with, and substantially enhance the legal basis for the provisions contained in the proposed Title IX regulations.”
The report analyzes 14 appellate rulings that were at least partly favorable to the accused student, and were issued from 2013 to 2018. Of the 14 decisions, eight were rendered in 2018 alone.
Among the 14 cases, five were decided by federal appellate courts and nine were resolved by state appellate courts. Four cases came from California appellate courts, three rulings from New York courts, and three from the 6th Circuit Court. Additional rulings came from the 1st, 2nd, and 4th Circuit Courts, and the Washington state appeals court.
The decisions highlighted due process deficiencies in eight areas: Insufficient hearing process, lack of cross-examination, insufficient notice, inadequate investigation, conflicting roles of college officials, improper use of witness testimony, potential sex bias, and misuse of affirmative consent policies.
The report then compares the appellate Judicial Findings with the due process provisions enumerated in a recent Notice of Proposed Rule-Making issued by the Department of Education (1). The analysis documents a general consistency between the appellate court rulings and the proposed regulatory changes.
Last week, the California Court of Appeal issued another decision in favor of the accused student. The court chided the University of Southern California for its reliance on a single-investigator approach, noting this practice “ignores the fundamental nature of cross-examination,” which is “incompatible” with any credible effort “to uncover the truth.” (2)
The SAVE Special Report is available online (3). A summary of the 14 cases is also available (4).
SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org
Education Department is planning to make significant reforms to Title IX regulations.
On November 29, the 60-day public comment period opened for Title IX regulations proposed by U.S. Department of Education Secretary Betsy DeVos. The move was the latest, and most significant, step in DeVos’s efforts to encourage colleges and universities to create a more balanced adjudication system for resolving campus sexual assault allegations.
Three features distinguish DeVos’s proposed regulations from the Title IX initiatives of her Obama-era predecessors.
First, the proposed rule would redefine the relationship between the Education Department’s Office for Civil Rights (OCR) and the nation’s universities, in ways that give schools more flexibility to implement Title IX. The regulations would adopt the U.S. Supreme Court’s definition of sexual harassment found in Davis v. Monroe County Board of Education—behavior “that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”—rather than the more expansive language of earlier OCR guidance.
Second, the proposed regulations would no longer require schools to adjudicate some off-campus claims. Citing Title IX’s statutory language, the proposed regulations would apply to “discrimination under any education program or activity receiving Federal financial assistance.” However, in contrast to a version of the proposed rules leaked in August, the published proposal notes that courts have deemed fraternities as covered under Title IX, suggesting that universities would need to adjudicate incidents that occur even at off-campus fraternities.
Third, the proposed regulations would reduce the number of employees whose knowledge of a sexual misconduct allegation would require the university to initiate an investigation.
In theory, these are substantial changes—and they have generated ferocious criticism from Obama-era officials and accusers’ rights activists. In practice, however, they are likely to have scant effect. Any college president who confined her institution’s Title IX policies to these provisions would almost certainly face massive protests from campus activists. Many schools can, and likely will, define sexual harassment more broadly than Davis. They can, and likely will, designate many or even most employees as mandatory reporters. And schools can, and likely will, continue to adjudicate off-campus conduct.
Indeed, recently a student sued Harvard after learning that the institution planned to adjudicate a sexual assault complaint against him—even though the complaint was filed by a non-student and involved an incident that occurred hundreds of miles away from campus, wholly unrelated to any Harvard-related activity.
If the definitional items in the proposed rules will not likely change much in institutions’ decisions about whether to adjudicate sexual assault allegations, the proposed rule would dramatically alter how colleges adjudicate. Although Title IX long has required “equitable” grievance procedures, Clinton-era guidance provided relatively few specifics on how to implement this mandate. Obama-era guidance, on the other hand, envisioned schools prioritizing the OCR’s interpretation of Title IX over any “due process rights” for accused students. As a result, universities increasingly employed a “single-investigator” adjudication model, handling sexual assault claims without any hearing at all, relying instead on the judgment of a Title IX employee or a lawyer hired by the Title IX office.
President Obama’s second-term OCR head, Catherine Lhamon, even deemed it “nonsense” to assert that courts have required direct cross-examination as part of due process protections for students accused of sexual assault. But, in fact, multiple federal courts have required it. The most prominent such decision, from the U.S. Court of Appeals for the Sixth Circuit in Doe v. Baum, made clear that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” It is from this emerging body of law that DeVos’s proposed rule heavily draws.
The regulations would require schools to allow cross-examination, conducted by a lawyer or advocate for each party. They would require schools to share with both sides evidence from the investigation. The rules would require schools to divulge to both parties the materials with which Title IX adjudicators are trained. And they would require schools to presume that the accused student is innocent. Although these changes would create a more equitable adjudication process, I am aware of no college or university with a Title IX code that currently includes all four of these provisions.
Finally, unlike her predecessors, DeVos has chosen to issue new regulations, eschewing the Obama Administration’s preference for guidance documents issued without notice or public comment. President Obama’s OCR heads had threatened to pull federal funding from any school that did not implement the guidance, which gave it the same effect as if it were binding law. Making a Title IX change through a rulemaking will delay the implementation of the new policy, which now will not come into effect until well into DeVos’s third year in office. And the notice-and-comment period gives DeVos’s opponents an opportunity to mobilize against the proposed changes in a way that a comment-free guidance document does not provide.
But opting for a new regulation rather than guidance has two major advantages for DeVos. First, in recent years, both progressive activists and Democratic legislators have championed an approach to Title IX that encourages more reporting of campus sexual assault allegations at the expense of fairer investigative and adjudicative procedures. It seems all but certain that the next Democratic administration will hope to restore President Obama’s Title IX principles. A guidance document issued by DeVos would lack lasting force; regulations, at the very least, would be more difficult to overturn.
Perhaps more important, regulations likely would require adherence, albeit very reluctantly, from universities. Last year, DeVos issued interim Title IX guidance that invited, but not did require, schools to develop procedures with greater protections for the accused. Virtually no schools took her up on her offer; the leadership at many universities made clear they would change nothing unless forced to by Washington.
Any university tempted to defy the new rule’s due process provisions, however, would risk not only adverse action from the OCR but a likely defeat in any Title IX lawsuit filed by an accused student. Schools, in short, will have little choice but to comply.
Accusers’ rights organizations have called for flooding DeVos with comments; presumably they will also sue to block the new regulations if and when implemented. But, barring an unforeseen development, a dramatic shift in how universities handle Title IX tribunals looms.
KC Johnson is a professor of history at Brooklyn College.
Stacy M. Brown, NNPA Newswire Correspondent, @ StacyBrownMedia
A dozen years ago, Tarana Burke created the slogan, “Me Too.” Burke, a Bronx, N.Y.-born African American civil rights activist, created the saying as a means to help women who had survived sexual violence.
Years later, the hashtag “#MeToo” took off, initially without properly crediting Burke.
The movement also seemed initially to exclude women of color or, in the view of many, disproportionately focus on victimized white women – prompting Burke to passionately tell African American women earlier this year, “don’t opt yourself out of what was started for you because the media isn’t acknowledging your hurt.”
Mostly white actresses in Hollywood have become the public face of the movement and men like Matt Lauer, Charlie Rose, and Les Moonves have lost their high-profile jobs.
The success for proponents has been increasingly measured in terms of the career, stature, title or reputation loss experienced by the growing group of the (mostly men) accused in the media and a much smaller segment of accused that have been charged and/or convicted of crimes.
As some in the movement include Bill Cosby’s conviction on aggravated indecent assault charges as another consequence of #MeToo, the pending charges and trial outcomes against movie mogul Harvey Weinstein remain unsettled.
Cosby’s trials were so adversely impacted by media rhetoric and public perception that the inaccurate reporting of the actual substance was an unsworn-in additional witness against him — including a prosecutor who cited Cosby’s conviction as a centerpiece of his election campaign.
In fact, even though videos have emerged of several professional football players and other celebrities assaulting physically assaulting women in hotel lobbies, elevators and hallways, Cosby may ultimately find himself as the sole accused celebrity who serves actual prison time.
Most recently, the movement was also credited for canceled office holiday parties and a growing number of radio stations refusing to play the classic song, “Baby, It’s Cold Outside,” after many claimed that the singer is trying to persuade a woman to stay with him by offering her a drink.
“While it’s critically important that women who’ve been assaulted are heard, we cannot forget about the fundamental right to due process that our great country was founded upon,” said Andrew Miltenberg, one of the nation’s leading due process attorneys.
“This is a dangerous time in our nation’s history, reminiscent of the days of McCarthyism, where a single accusation is enough to end a career. Even baseless charges can ruin a lifetime of work in some situations,” Miltenberg said.
With more than 200 men losing positions and Cosby jailed, some are beginning to look at the movement with a suspect eye.
Actor Sean Penn famously said the campaign has been too black and white and it has divided men and women. Penn also said the movement “is being led by mania.”
He told NBC’s Today Show that he’d like to think that none of it was influenced by what they call the movement of #MeToo. “I think it’s influenced by the things that are developing in terms of empowerment of women who’ve been acknowledging each other and being acknowledged by men,” Penn told Today. “This is a movement that was largely shouldered by a kind of receptacle of the salacious.”
When the show’s host, Natalie Morales, asked Penn to clarify his use of the word “salacious,” the actor doubled-down. “Well, we don’t know what’s a fact in many of the cases,” Penn said. “Salacious is as soon as you call something a movement that is really a series of many individual accusers, victims [and] accusations, some of which are unfounded,” he said. “I don’t know the percentages, but I know that there are some lies that have been told publicly about people; I know of some serious omissions. I’m talking about women towards men.”
Actress and former Playboy model Pamela Anderson has also criticized the #MeToo movement.
She has argued that many of the cases stem from actresses taking meetings in hotel suites alone with male executives. Anderson has argued that she’d never go to a man’s private hotel suite for a business meeting alone, particularly if the man answering the door is “only wearing a robe.”
“I think this feminism can go too far,” she said in an interview earlier this year with Australia’s
“60 Minutes.”
“I’m a feminist, but I think that this third wave of feminism is a bore. I think it paralyzes men,” she said. “My mother taught me don’t go to a hotel with a stranger. If someone opens the door in a bathrobe and it’s supposed to be a business meeting, maybe I should go with somebody else. I think some things are just common sense. Or, if you go in, get the job.”
At its best, the #MeToo movement has been a much-needed corrective to the abuses of power, said Attorney Justin Dillon of the Washington, D.C.-based firm of Kaiser Dillon PLLC. “At its worst, though, it’s been an excuse to unfairly ruin people’s lives and reputations without any form of due process or testing of the allegations.”
“There is no #MeToo court [where] you can go to get your reputation back and filing a real lawsuit is prohibitively expensive for most people. Plus, the media often confuses allegations with proof, which is both lazy and harmful,” Dillon said.
Celebrities and business moguls aren’t alone in feeling the brunt of the #MeToo movement.
Even children have been accused.
Nine-year-old New Yorker, Jeremiah Harvey, who is black, was falsely accused of groping and sexually assaulting Teresa Klein, a white woman, at a Brooklyn store.
Klein, later dubbed “Cornerstone Caroline” by social media, called police after she falsely accused young Jeremiah of assault – cameras showed the child never touched Klein.
“I felt humiliated because of the way she was acting,” Jeremiah said in a later broadcast interview.
Historically, false allegations of sexual assault have been a frequent and persistent phenomenon – particularly for black men.
Earlier this year, the 1992 convictions of Van Dyke Perry and Gregory Counts, two African American men, were vacated when the alleged victim revised her story after new DNA evidence was discovered that exonerated the two men.
Of course, the most prominent example of someone paying a high price for a sexual assault they didn’t commit was Emmett Till. Till, who was black and only 14-years old, would never reach his 15thbirthday after becoming the victim of a lynching and murder in Mississippi, igniting the Civil Rights movement in 1955.
In 2017, Carolyn Bryant Donham, Till’s accuser, admitted that she lied. According to a story fi led by Jerry Mitchell for the Clarion Ledger, “… Carolyn Bryant Donham has admitted she lied when she testified that Till touched her — a lie she repeated to the FBI a decade ago.”
Before Emmett Till, there was the Scottsboro Boys, nine black teenagers falsely accused in Alabama of raping two white women on a train in 1931.
That case was tried in front of an all-white jury and fraught with problems, including lynch mobs, threats of violence and injustice. Modern day allegations have also torn apart college campuses. In a recent Glamour magazine article, “Inside the Organizations that Support College Rapists,”
LillyDancyger writes, “On the other end of the spectrum, [Alice] True [Founder of] Save Our Sons cites a statistic that one in three students found guilty of sexual misconduct through Title IX hearings are in fact innocent—a statistic that comes from a UCLA study that focused on mathematical probability of false accusations without analyzing actual cases.”
The nonprofit Families Advocating for Campus Equality (FACE) notes that many college students have been tried and convicted and have had their reputations and lives torn apart over allegations that haven’t proven true.
According to FACE, at least 200 students claiming to have been falsely accused or found guilty of sexual assault on their campuses, have fi led lawsuits against their colleges, administrators and/or their accusers over the past several years.
Officials said there are more lawsuits pending across the country while nearly 100 court decisions have been issued in favor of accused students since 2013.
These lawsuits claim violations of due process, breach of contract and infliction of emotional distress, as well as decisions tainted by gender bias under Title IX, according to FACE’s website.
FACE officials said there are many, many more unjustly accused students who have resolved their disputes without legal action or are constrained by college-imposed confidentiality policies, and those whose claims have been settled are almost always bound by confidentiality clauses in their settlement agreements, officials said.
And of course, there are those whose futures have been devastated because they did not have the knowledge or resources to challenge the findings, and their college or university refused to acknowledge their innocence, FACE argues.
U.S. Education Secretary Betsy DeVos testifies before the House Education Committee on “Examining the Policies and Priorities of the U.S. Department of Education” on Capitol Hill in Washington, U.S., May 22, 2018. REUTERS/Leah Millis
Following the confirmation of Justice Brett Kavanaugh to the Supreme Court, the Senate Judiciary Committee referred several of his accusers to the Justice Department for lying to Congress, reminding us that the importance of taking accusations of sexual assault seriously must be balanced with a presumption of innocence for the accused.
It is precisely that balance that the U.S. Department of Education was aiming for when it recently proposed rules, under its Title IX authority, governing how institutions of higher education and K-12 schools handle students’ accusations of sexual misconduct.
The overarching goal of the rules, which will have the biggest impact on college campuses, was articulated by Secretary of Education Betsy DeVos: “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
The proposed rules, which will become final after a 60-day public comment period that will likely result in some revisions, are intended to replace seriously-flawed Obama administration guidance on the same subject. That guidance, issued without public input, gave accused students—nearly always male and, as journalist Emily Yoffe has documented in The Atlantic, disproportionately black—little opportunity to defend themselves despite possible expulsion, rescission of job offers and graduate school admission, and other career-damaging consequences.
The Obama era guidance was the result of lobbying by liberal activists who portray sexual assault on campus as an exploding crisis and insist that all accusers must be believed, while dismissing inconsistencies or untruths in an accuser’s story as the understandable result of trauma – a theme that should sound familiar to those who followed the Kavanaugh saga. The guidance pressured schools to deny basic due process protections to the accused, while also mandating the lowest possible standard of proof—under which a 50 percent chance of guilt means conviction—and defining sexual misconduct so broadly that it infringed on free speech.
Among the many due process rights commonly denied to accused students were cross-examination of the accuser and other witnesses, which the Obama administration worried could be “traumatic or intimidating,” and access to exculpatory evidence and the details of the charges. More than 200 such students fought back with lawsuits against their schools. In fact, the success of many of these suits is one reason Secretary DeVos made replacement of the Obama guidance a priority.
Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements. These include written notice of the allegations, an opportunity for both parties to review the evidence, the presumption of innocence, the right of cross-examination—subject to the typical “rape shield” exceptions—and an end to the common practice of having a single school official serve as investigator, judge, and jury.
Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements.
The new rules would also allow, but not require, schools to apply the somewhat higher “clear and convincing evidence” standard of proof. Given the severity of the consequences for students found guilty, many critics of campus kangaroo courts would have liked to have seen the rules also allow the “beyond a reasonable doubt” standard, the one used in the criminal justice system, where non-student claims of sexual assault are normally adjudicated.
One might hope that these common-sense reforms would meet with less resistance from the left than other Trump administration policies, given liberals’ championing of due process protections for even enemy combatants and non-citizens residing unlawfully in the U.S. Instead, the Chronicle of Higher Education reports that “Reaction to the regulations was swift, with ranking Democrats in the House and Senate condemning the proposals.” A typical response was that of Senator Kirsten Gillibrand of New York, who tweeted that DeVos was siding with “predators over survivors …betray[ing] her responsibility to the students she’s meant to serve. It’s sickening.”
Sen. Gillibrand and her like-minded colleagues fail to understand that only a fair adjudication process can determine who is the predator and who is the survivor, that DeVos is meant to serve male as well as female students—as is Gillibrand by the way—and that ruining the life of a wrongly accused student is as sickening as an unpunished sexual assault. Yoffe reports that she has “yet to talk to an accused student, even one who was eventually cleared, whose life wasn’t profoundly damaged; every one has told me that at some point he considered suicide.”
The reaction of liberal activists outside Congress was similar. “These changes are designed to flip Title IX on its head and give rights to accused students when Title IX was supposed to be protecting those experiencing sexual discrimination,” said Carly Mee, an attorney for a survivors advocacy group SurvJustice. Putting aside Mee’s mistaken belief that Title IX protects only accusers, it is a shame that critics of the proposed rules see the investigation and adjudication of sexual assault allegations as a choice between protecting women and affording due process to the accused.
As Secretary DeVos points out, “there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.” “Those are not mutually exclusive ideas,” she emphasizes. “They are the very essence of how Americans understand justice to function.”
Curt Levey is president of the Committee for Justice, a nonprofit organization that advocates for the rule of law. Before attending law school, he worked as a scientist in the field of artificial intelligence.
