Month: March 2020

Categories
#MeToo Campus Title IX

University Administrators Rack Up “Excuses” for Delaying New Title IX Regulations

“The dog ate my homework” is one of the oldest excuses students use to rationalize their delay in turning in an assignment.  The coronavirus pandemic is one of the newest excuses universities and others are using to request the Department of Education suspend the Title IX rule making process, which has been ongoing since November 2018.

Stop Abusive and Violent Environments (SAVE) calls on the Department of Education to swiftly proceed by releasing the new regulations, keeping with their stated goal of restoring due process in the handling of sexual harassment cases on college campuses.  Since the 2011 Dear Colleague Letter [1], universities have been handling campus sexual harassment investigations in a manner not fair or equitable to the accuser or the accused. The proposed new regulation allows for a meaningful hearing process, timely and adequate written notice, and access to evidence. [2]

In a letter to Secretary DeVos and others [3], the National Women’s Law Center (NWLC) lays out their argument for delaying the regulations.  The excuses listed actually give support why the regulations should be released now. Not later.  In their rampage, NWLC cites reasons, such as, reduced resources, ongoing stress, and remote working environments.  While these are true, they are also true for a university absent of a coronavirus pandemic.  With campuses devoid of most students until the Fall semester, the university campus is quieter than ever, and the administration has ample time to focus and implement the necessary steps to be compliant.

Buried in the letter, however, are two descriptive words most telling for why the NWLC actually wants the rules delayed: “Now is hardly the right time to push forward with this fundamentally flawed rule.”   So there we have it. It’s not because of the coronavirus, it’s because they don’t like and don’t want the due process rule. Period.

Students are given ample notice to complete their assignment and turn it in for a grade. Universities have had ample notice and time to prepare for the release of new rules enforcing Title IX on their campus.  No more excuses. Time’s up to restore due process on University campuses across the nation.

Citations:

[1] https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html

[2]https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal

[3]https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2020/03/NWLC-Letter-to-ED-and-OMB-re-COVID-19-and-Title-IX-3.25.20.pdf

SAVE – Stop Abusive and Violent Environments — is leading the national policy movement for fairness, due process and the presumption of innocence. 

Categories
Title IX

How Do You Stop A Problem Like University of Michigan?

When the Sixth Circuit ruled in Doe v. Baum, following up on its decision in Doe v. University of Cincinnati, the law appeared settled: The male students accused of sexual misconduct were entitled to cross-examination in Title IX sexual misconduct proceedings. Problem solved, right? So why then didn’t the University of Michigan’s president get the message?

In its desire to be a mecca of political correctness, the University of Michigan continues to prioritize the rights of some students over others.

And that does not fly in the courts, thanks to the U.S. Constitution, which demands free expression and due process for everyone.

UM’s resistance to ensuring its codes of conduct abide by that framework keep landing the university in court.

It got slapped once again by a federal judge this week.

In Doe v. University of Michigan, Judge Arthur Tarnow rejected UM’s effort to game the ruling in Baum, which UM President Mark Schlissel calls “wrong,” by creating an “interim” rule after the case was brought and then claiming the case was moot.

The university then argued that Doe’s case was moot, since it would now adjudicate his case using the Interim Policy. The district court noted, however, that voluntary cessation of unconstitutional conduct is alone insufficient to moot a claim. Rather, a claim is only moot if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” And because the university continued to defend its old policy — among other things, the university’s president explicitly declared that “the Sixth Circuit got it wrong” in Baum — the court held that the university had “failed to meet its burden of proving that the challenged policy will not be re-enacted.” Doe’s claim, therefore, was not moot.

There is a belief that law is somehow magically self-effectuating, that if a court holds that the law requires that something be done, it will be done. After all, that’s the law. Isn’t that how law works? The UM case proves otherwise.

The judge says ignoring court rulings is a pattern with UM. He cited a 2018 free speech case brought against the university by Speech First. That lawsuit targeted UM’s bias response team, which encouraged students to spy on each and report behavior that made them feel uncomfortable. The 6th Circuit Court determined that even though the university amended its policy following the suit it had done so in a “disingenuous” manner.

The judicial branch was characterized as the “least dangerous” as its ability to compel people to comply with its orders was severely limited. It relied primarily on the acceptance of the courts as legitimate arbiter of law so that people complied because they chose to apply. Beyond that, the judiciary relies on the kindness of strangers from the executive branch, because they have the guns.

But while Michigan didn’t want to appear not to comply, it simultaneously chose not to comply because, well, it didn’t want to. It didn’t agree, as if this is a debate between peers with the Sixth Circuit (and Judge Tarnow) on one side and UM president Schlissel on the other, both sides being entitled to their own opinion and, therefore, entitled to agree to disagree and go about their lives doing what they believe to be the right thing.

It wasn’t as if Judge Tarnow could shut down University of Michigan for its failure to adhere with the rulings. It’s a huge public university, with almost 45,000 students. Should he shut down UM, deny those students an education? Should he impose Draconian sanctions, to be paid from student tuition or public monies? What possible effective solution would serve to drive home the point that UM wasn’t above the law without doing significant (and likely ineffectual) harm?

From its inception to the University’s appeal in Baum, the [University of Michigan] was in violation of Circuit precedent. Five months before publishing its 2018 Policy and likely during its drafting, the Sixth Circuit held that cross-examination was “‘essential to due process’” only where the finder of fact must choose “‘between believing an accuser and an accused,’” and implored universities to provide a means for decision makers “to evaluate an alleged victim’s credibility.” Cincinnati, 872 F.3d at 405-06. The Court of Appeals further emphasized that deciding the plaintiff’s fate without a hearing and cross-examination was a “disturbing . . . denial of due process.” Cincinnati, 872 F.3d at 402. Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity. (Emphasis added.)

Subsumed in the “et al.” portion of the caption are numerous individual defendants who either participated in the underlying conduct by UM or were decision-makers in the university’s policies. By denying them “qualified immunity,” they can potentially be held individually liable for the deprivation of constitutional rights suffered by the plaintiff. Mind you, this doesn’t mean they will, or that the school won’t pay any judgment imposed as a consequence of the case, but it theoretically exposes the individual defendants to liability.

Is this the right answer? On the one hand, the individual defendants who were integral to the due process violations, such as the Title IX coordinator and investigator, were doing what they were told to do, what their job was understood to be. They weren’t the policy makers here, and their performance of their jobs, which they may well have been more than happy to do with gusto, was as the school’s administration required of them.

On the other hand, the policy makers weren’t determined to go forth and violate constitutional rights, but were crafting policy for purposes that were, based upon their understanding and belief, supportive of the victims of rape, sexual assault and sexual harassment. What could be wrong with such benign, if not laudable, goals?

As more suits are brought, more rulings obtained, holding that campus sex tribunals involve unconstitutional deprivations of due process to accused male students, some colleges will comply, but others will simply resist, firm in their belief that they are on the right side of history and, even if courts don’t agree, are doing what they have to, what they should, do to protect women. They are, in essence, challenging the courts by saying “make me,” and the reality is that the “least dangerous branch” doesn’t have any really good magic to do so.

Categories
Sexual Harassment

U. of Rochester Will Pay $9.4 Million to Settle Long-Running Sexual-Harassment Battle

T. Florian Jaeger (left), a professor in the department of brain and cognitive sciences at the U. of Rochester

The University of Rochester has agreed to pay $9.4 million to settle a lawsuit brought by nine former faculty members and students who had accused the New York institution of discriminating and retaliating against them in a long-running sexual-harassment dispute.

The controversy, which had engulfed the university for years, involved its handling of harassment accusations against T. Florian Jaeger, a tenured professor in the department of brain and cognitive sciences. The plaintiffs sued the university in 2017, accusing it of retaliating against and defaming them after they complained about what they said was a pattern of sexual harassment by Jaeger.

The case drew national attention as an illustration of how many lives can be affected when sexual-harassment battles break out and how some university policies can let offensive behavior go unchecked for years.

In 2018 an outside investigation largely exonerated Jaeger of violating Rochester’s sexual-misconduct policies but found him responsible for “unprofessional and inappropriate behavior” years before. That conduct included talking and joking about sex, as well as engaging in consensual intimate relationships with students at a time when those were discouraged but not banned.

Jaeger admitted that his earlier conduct had been at times immature and unwise, but he said he had been unfairly labeled a sexual predator. He returned to teaching in 2018 after a semester of paid academic leave and is teaching an undergraduate research class this spring.

Jaeger wrote, in an email late Thursday to The Chronicle, that he was glad that those who’d had the courage to complain about his behavior had been heard. “Of course, I would have preferred if I had heard about those concerns 10 years ago, but I understand that it was not obvious to others that I would have reacted appropriately,” he wrote. “I would have preferred if valid concerns about unintentionally harmful behavior would not have been contaminated by massively distorted and outright false allegations of sexual predation.”

He said he wished the university hadn’t ended a restorative-justice approach, in which he and others affected by the controversy met with an outside facilitator to discuss its impact. “I am afraid that the university’s decision to settle will not bring us any closer to a genuine dialogue,” Jaeger said.

Several of Jaeger’s former colleagues, who later left the university, said Rochester had retaliated against them for their complaints by portraying them as unreliable and making them feel unwelcome in their own department. Rochester’s president at the time, Joel Seligman, resigned amid the uproar over the university’s response to the researchers’ complaints.

On Friday the parties issued a joint statement in which the university thanked the plaintiffs for raising their concerns about sexual harassment. “The university is committed to providing a safe and inclusive environment for its students, faculty, and staff, and these individuals helped identify opportunities for change in university policies and procedures,” it says.

As a result, the university is better able to prevent, investigate, and remediate complaints involving “harassment and other forms of discrimination, as well as retaliation for reporting such matters,” the statement says.

“My whole lab, and the research programs that were established, were disrupted and moved across the country, and that wasn’t fair.”

Sara Miller, a University of Rochester spokeswoman, said in a separate written statement that the university was pleased with the mediated resolution, and that neither side admitted liability or fault. “The willingness of our insurance carrier to pay the entire settlement amount was a factor in our decision,” she wrote.

The steps the university has taken since the claims were filed, she wrote, include establishing an Office of Equity and Inclusion, “strengthening policies, clarifying processes, and expanding training and resources to prevent and address sexual misconduct.”

The plaintiff’s chief lawyer, Ann Olivarius, said in a news release that it was unusual for senior professors to join junior faculty members and students to protect students from harassment.

“Our clients have had to leave jobs, research collaborations, and a community they loved, and move across the country because the university dug in when it should have taken their complaints seriously,” she wrote. “We commend UR for improving its policies and turning the page on this very long struggle.”

Celeste Kidd, one of the primary complainants, is now an assistant professor of psychology at the University of California at Berkeley, where she moved because of what she called the university’s retaliation against her. In 2007, Kidd was a 24-year-old graduate student who said Jaeger had invited her to rent a spare room in his apartment and then harassed her by repeatedly asking her about her sexual history.

“My whole lab, and the research programs that were established, were disrupted and moved across the country, and that wasn’t fair,” she said in an interview on Friday. She said she was pleased that the university had agreed to remove a link to the outside report that largely exonerated Jaeger and the university’s handling of the matter, because she felt it had given students the impression that what had happened to her and the other plaintiffs didn’t rise to the level of sexual harassment.

The public legal battle, she said, “allowed a lot of people who were experiencing these things around the world to reach out to me, and made me realize how common and systemic they are.”

For his part, Jaeger said removing the link to the outside investigator’s report will make it hard for students to see “a narrative of the events in which facts matter.”

In the joint statement, the plaintiffs acknowledged the steps university leaders had taken to prevent harassment, and expressed confidence that such improvements would continue.

Richard Aslin, a former dean of arts and sciences at Rochester who was among the plaintiffs, said he hoped the settlement “encourages people affected by discrimination and retaliation to seek justice and never give up.”

The plaintiffs said they would contribute part of the settlement proceeds to “individuals whose careers were negatively affected by the hostile environment described in the lawsuit.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.

Categories
Title IX

Public university opens girls-only STEM camp to boys to resolve Title IX investigation

Still no images of boys on the brochure

 

Grand Valley State University opened its STEM summer camp for girls to all students in order to resolve a Title IX complaint filed by a professor at another university.

It’s the latest victory for University of Michigan-Flint economist Mark Perry, who shared the documents resolving the complaint with The College Fix. He said he has now obtained more than a dozen “favorable” outcomes – three of them at a single university – in response to his sex discrimination complaints.

The resolution agreement with the Department of Education’s Office for Civil Rights, dated Feb. 4, binds the public university in Michigan to “modify the Science,Technology & Engineering Preview Summer (STEPS) camp to ensure all of the University’s activities to the 2020 STEPS are open to all students regardless of sex.”

OCR’s Cleveland office notified GVSU’s deputy general counsel on Monday that its investigation had concluded, but specified that OCR will still monitor compliance with the agreement. It received the university’s first “monitoring report” Feb. 26.

Perry has spent the past four years targeting universities for operating programs that exclude men, from scholarships and faculty awards to various academic “camps.” Ohio State University opened several programs to men just last month to resolve another Perry complaint.

Having filed 108 federal sex discrimination complaints, Perry has noticed a pattern across 13 resulting agreements between OCR and targeted schools, he told The Fix in an email. The professor is now “confident” that OCR “is not willing to tolerate any exceptions to sex discrimination in violation of Title IX, including sex discrimination against men.”

MORE: Perry complaint prods OSU to open women-only programs to men

Now has five gender options

Perry filed the complaint against GVSU in January 2019. OCR’s resolution agreement says the university website described the middle school girls’ summer camp as “a day-camp preview of science, engineering and technology for young ladies between the 6th and 7th grades.”

The university contacted OCR after it received Perry’s complaint, sharing a July 15 memo that said the 2020 camp will have “no restriction on gender as a prerequisite for participation” and that marketing materials would be updated. OCR also confirmed that the university added “check-boxes” for male and female applicants.

But GVSU was slow to change other elements of the website, according to OCR. The agency “had concerns” in a January review “that the University’s promotional materials did not convey that the program is open to students regardless of sex.” For example, all the photos on both the website and the application brochure “depicted female campers.”

Now the website makes clear that the camp accepts all student applicants. As a result, the word “Girls” has been stripped from the program name, and the new website for the program now boasts in large font “**STEPS has changed their application policy to be gender inclusive. No applications will be denied based on gender identity.**”

The 2020 brochure still has no discernible images of male students, though. A new “Gender Identity” field offers female, male, “Non-binary/third gender,” “prefer to self-describe” and “prefer not to say.”

The Fix asked the university Thursday about its legal review of the previously all-girls summer camp before it launched. Spokesperson Nate Hoekstra wrote in an email that he would “pass this along to the team who works on Title IX issues.”

Categories
Child Custody Domestic Violence False Allegations

Nebraska Judge Rules False Allegations are a Form of Domestic Violence

Can false allegations be considered to be a form of domestic violence? In a previous case in Delaware, the judge ruled false allegations in fact represent an attempt to exert power and control over one’s partner.

Earlier this week, a Nebraska judge issued a custody decision in a parental alienation case.  The father was awarded primary custody because of the mother’s move-away and alienating behaviors.  The court concluded:

“[d]omestic intimate partner abuse includes using a child to establish or maintain power and control over any current or past intimate partner.  Neb. Rev. Stat. Section 43-2922(8).  The Court finds the testimony of Dr. McConnell to be credible as to his observations regarding parental alienation by the Mother.  The Court finds that some of the Mother’s actions are consistent with Dr. Harman’s expert testimony regarding the use of the legal system in order to gain control over the target parent.”  [emphasis added]

These conclusions were based on factual findings that:

“[t]he mother’s claims regarding threatening, abusive behavior by the Father are not credible. Despite seeking court orders limiting contact with the Father, the Mother continued to initiate contact [with] him. The Mother has displayed a similar pattern with a prior boyfriend as well.  The Mother made a false allegation that the Father had tried to hit her with his vehicle while exchanging the children [at] the Law Enforcement Center.” [emphasis added]

In awarding attorneys fees to the Father, the Court later noted the Mother “sought protection from the Court, but frequently disregarded the Court’s no contact orders.  There is at least one outright fabrication, the claim at the Law Enforcement Center.”  While the father had issues of his own, the Court found “the Father is more likely to encourage the children to maintain a positive relationship with the other parent.”

The order also provided that if the parents in the future resided within 20 miles of each other, the custody arrangements would automatically change to equal 50-50 parenting time.  The father was represented by Josh Johnson and expert mental health testimony was provided by Dr. Luke McConnell from North Platte, NE, and Dr. Jennifer Harman from Colorado State University.

The entire ruling is available online.

Categories
Campus Sexual Harassment Title IX

The Weaponization of Title IX at Oregon Health and Science University

My name is Buddy Ullman.  I am a retired Professor of Biochemistry and Molecular Biology from The Oregon Health & Science University (OHSU) in Portland, Oregon.  As a faculty member at OHSU, I headed a research program in molecular parasitology for which I was continuously funded (for 34 years) by the National Institutes of Health.  I was also a major contributor to the medical education program for 29 years for which I was accorded 51 teaching awards and honors.  At OHSU, I was widely perceived as a faculty leader because of my vocal advocacy for aggrieved students and faculty and for my oppositional views to some of the academic policies in the School of Medicine.

This brought me into occasional conflict with some of the Associate Deans, particularly those in the medical education program.  Politically, I am a liberal democrat and an ardent supporter of Title IX.  I also had the misfortune of being a Title IX respondent, and, per full disclosure, am an enthusiastic advocate for DeVos’s proposed new Title IX guidelines, although I have a few concerns that I conveyed to the Department of Education using the Federal eRulemaking Portal.

My Title IX Experience

My Title IX ordeal involved five investigations over three years and resulted in the destruction of my professional career and job termination.  The details of these investigations are myriad, convoluted, and complex, and therefore, I only present the skeletal outline of the adversities that I faced.  There is documentation for everything that I assert, much of which is or was in possession of the Office for Civil Rights, Seattle Branch, in the Department of Education (OCR Reference No. 10152256).  The original purpose for these investigations was to deny me access to the educational programs of the university, which seems counterintuitive to Title IX’s purpose, but these multiple inquiries eventually morphed into a mechanism to destroy my very successful, externally funded research career and to fire me.

The seminal and initial investigation for which I was respondent was a sexual harassment complaint that was launched on May 16th, 2014 by the Associate Dean of Undergraduate Medical Education, ostensibly on behalf of a first-year female medical student who had failed the medical school course that I directed and, therefore, faced a remediation examination and potential expulsion from the medical school program and who, like the Associate Dean, had ample motive to retaliate against me.  The student had falsely claimed in an email to the Associate Dean written earlier on May 16th, 2014 that I had kissed her on the forehead in my office, an expanded definition of sexual harassment to say the least, and that I had made a harassing and “pseudo-predatory” comment on a Facebook photo in which she was not pictured.  The alleged kiss was a fabrication, and the Facebook comment, although warm and affectionate as many Facebook posts are, was neither lascivious nor of a sexual nature.

The student was named the complainant by a civil rights investigator in OHSU’s Affirmative Action and Equal Opportunity (AAEO) Office although she was not involved in the genesis of the AAEO complaint, i.e., this was a third-party endeavor.  By the next business day, the Associate Dean’s administrative superior, the Senior Associate Dean of Education, had weighed in and expanded the scope of the investigation, and multiple emails in my possession substantiate collusion between the Dean’s and AAEO Offices at the inception of the investigation.

I first learned about the existence of the complaint on August 14th, 2014, three months after the investigation had been initiated.  I was not informed of the specifics of the allegations at that time (or throughout the investigation, see below).  I met with the investigator for 90 minutes on September 5th, 2014, the same date that the investigation was closed (without my knowledge).  When I met with the investigator, I was, obviously, completely unprepared, and she harangued me with salacious questions and seethed with hostility.  As an aside, the sexual harassment complaint was considered by the AAEO Office, not the Title IX Office, as there was no Title IX Office at OHSU in 2014.

Below I describe the salient features of this investigation:

  • Per the previous paragraph, the complaint was initiated by a third-party surrogate.
  • There was no formal or written complaint. I did request to view the formal complaint multiple times and was not told that there was no formal complaint.
  • The scope of the complaint shifted throughout the investigation.
  • I was not permitted to have any knowledge of the allegations against me. This precluded any possibility of a realistic defense.  I only learned of the nature of the specific charges ten months after the case against me was closed.
  • Related to the previous point, not only did I not know the nature of the accusations, but the specific complaints weren’t even discussed in my presence.
  • I was not allowed to know the identities of the named complainant or the witnesses, e.g., the Associate Deans, because they wanted to make their (false) accusations under anonymity for understandable reasons and also because I would have immediately recognized the predatory and retaliatory nature of the Associate Deans’ involvement and the retaliatory intention of the student complainant’s allegations. I also only learned the names of the complainant(s) and the witnesses ten months after the case was concluded.
  • I was not given any opportunity to present evidence on my behalf, while the complainants were given four months to collect and submit evidence. The preponderance of evidence standard for substantiating any claim against me was, therefore, simplified since all the evidence considered was provided by the complainant side.
  • I was not offered an occasion to bring forth witnesses of which I would have had thousands. The complainant side had four witnesses: the two Associate Deans and the complainant’s two best friends/housemates, each of whom had come up with their own allegations, one preposterous, one untruthful.
  • Witness testimony was taken over the telephone, precluding any assessment of witness demeanor.
  • All exculpatory evidence collected by the AAEO investigator was withheld from me.
  • The presumed inculpatory evidence that was shown to me was did not involve wrongdoing and was, without exception, absurd.
  • The Closure Memo, effectively the investigative report, that summarized the investigator’s findings and ultimately informed the investigator’s conclusions was not afforded to me for analysis. I only became aware of the Closure Memo’s existence ten months after the case against me was concluded, and it was replete with falsehoods, fabrications, distortions, exaggerations, and mistakes and lacked context throughout.  There was no opportunity afforded to rebut The Closure Memo.
  • I was not informed in a timely matter about any aspect of the investigation against me. Every step of the investigation took me by surprise.
  • I was muzzled throughout the proceedings (and presumably afterwards). This gag order (or orders) prevented me from recruiting witnesses, getting help within the institution, and organizing a defense.
  • I was continually threatened with job loss throughout the process. This was intimidating to say the least.
  • The outcome of the so-called “investigation” was, obviously, predetermined and not evidence-based.

I received a summary of the investigator’s findings, designated the Letter of Closure (different from the Closure Memo) on November 25, 2014.  The Letter of Closure was farcical and suffered from all the failings of the Closure Memo (see point 12 above).  The investigator, who fundamentally functioned as a prosecutor, concluded that I had engaged in sexual harassment of female medical students (apparently for the entire 29 years during which I taught).  This was the first time, six months after the case against me had been instigated, that I had any inkling that my case was even about sexual harassment.

This revelation was flabbergasting since there had never been any sexual harassment, and categorically no behavior of a sexual nature on my part while a member of the OHSU for 32 years.  The investigator also found that I had engaged in gender discrimination and inappropriate, unprofessional, and disrespectful behavior toward female medical students in order to ensure that I had been found in violation of almost every single institutional policy that supports Title IX including the institutional Code of Conduct, which I apparently violated multiple times with abandon.  There was also no gender discrimination and no inappropriate, unprofessional, or disrespectful behavior toward female medical students, or for that matter toward anybody else.

The Dean of the School of Medicine, stated in his Letter of Caution to me, also dated November 25, 2014, that I had “violated OHSU’s Code of Conduct (Section G), the Equal Opportunity Policy (No. 03-05-030), and the Sexual Harassment Policy (No. 03-05-035) through unwelcome hugging, wrist-grabbing, as well as cheek and forehead kissing of female students.”  There was no unwelcome hugging, wrist-grabbing, cheek kissing, or forehead kissing of female students, however, and these conclusions were all news to me because no unwelcome behaviors were ever alleged in my presence during the investigation.  All the conclusions by the AAEO investigator and Dean were made-up.  I was, of course, punished, and there was never any effort on the part of the institution to stop, interfere with, or modify any of my behavior, as outlined by institutional policies and federal statute.

The investigation was a sham, neither fair, impartial, nor reliable, and it was most certainly not well-intentioned.  Not only had the investigator functioned as a prosecutor throughout the inquiry, but she also served the roles of detective, plaintiff (it was she who made the sexual harassment accusation), judge, jury, and executioner.  Because I was innocent of all “transgressions” (there is not one iota of truth to any of the investigator’s or Dean’s conclusions), I believe that the administration, acting maliciously, basically hijacked Title IX in order to retaliate against me for my activities and views that the administration didn’t like.  The assortment of shortcomings in the AAEO investigation that I identified above was not an accident.  Title IX was employed as a weapon, a strategic one that the Dean’s Office later employed to clobber other faculty.

Devos’ new proposed guidelines for Title IX enforcement on college/university campuses address every single one of the investigative shortcomings in my case, and, as I mentioned in the first paragraph, I support the DeVos regulations with enthusiasm, although with a few caveats.  The new regulations do not, however, address the intrinsic competence and integrity of the investigators nor the ability of “bad actors” to endeavor to manipulate the outcome of Title IX proceedings.

My subsequent request for an appeal was denied, but I was granted an internal grievance procedure that was distorted almost beyond recognition and stage-managed by OHSU’s general counsel, a person who also had a prominent role in the original AAEO investigation described above.  The grievance panel concluded that due process considerations had not been violated because I could have presented a defense after my case was closed (to whom?!?!) and that I didn’t need to have been informed about the specifics of the allegations because I should have been able to figure them out by the line of questioning, even though the alleged misconduct never occurred!!

I then appealed to the Office for Civil Rights (OCR), Seattle branch.  The OCR took the case, investigated OHSU’s AAEO office, and apparently compelled substantial changes (the AAEO Director was subsequently fired), but concluded that OHSU had adhered sufficiently to the Obama-era Title IX guidelines and thus, took no further action on my OCR complaint.  The OCR decision was terribly disappointing and left me exposed to retribution, which was forthcoming.

Once the OCR had completed its review of OHSU’s AAEO Office and Title IX compliance, the administration, blasting through any OCR whistleblower protections, retaliated against me repeatedly.  The administration filed at least five more frivolous charges against me, most of which were Title IX related but on which the Title IX Office punted (this is called deliberate indifference), and launched two new sham investigations, the fourth and fifth overall, for which the outcomes were, predictably, preordained.  The first of these latter two investigations concluded that I violated the institutional Code of Conduct in multiple ways because, according to the investigator, I used the word “Yuck” in an email to a colleague/friend, while the second resolved that I had engaged in retaliation, which I most certainly did not.

The administration continued to retaliate me in other ways as well.  I was banished from the medical school classroom on three separate occasions, thereby denying me access to the institution’s educational activities, made the subject of a nasty, disparaging email sent by the aforementioned Associate Deans to the entire medical student body in response to a satirical vignette that I was asked to give at the Medical Student Follies, and then placed on administrative leave, exiled from campus although I was no safety threat to anybody, and had my email disabled and my access to my work computer switched off.  These actions effectively terminated my 47-year career in biomedical research.

Furthermore, when the Dean of the School of Medicine and the Vice President of Human Resources placed me on administrative leave and deported me from campus, not only did they not tell me why (I asked) but they told me that they themselves didn’t even know all the reasons why!!  I was fired several months later, while on administrative leave, after the last (and fifth) investigation against me concluded.  I am now retired and hope, through my experience, that I can bring some wisdom to the Title IX guideline debate and to other Title IX victims.

I refrained from a lawsuit for a myriad of reasons.  First, I am not litigious and don’t crave money.  Second, I am 69 years old and was close to retirement anyway and didn’t want to be at the university any longer because of the way I was (mis)treated.  Third, I signed a termination agreement, clearly under duress, that would provide me with a salary equivalent and insurance for another nine months if I promised not to sue them.  Fourth, I already had had two expensive lawyers:  the first whom I hired for the first investigation was unhelpful and wanted me to roll over and play dead; and the second whom I consulted during the fifth investigation and who really gave appropriate advice and thought it would be best for me to retire and not go through yet another investigation.  Fifth, I am a pensioner on a fixed income, and I would be taking on a ~$3,000,000,000 corrupt organization with effectively unlimited resources.  Sixth, OHSU would have fought me tooth and nail since the entire administration all the way up to the top of the university was locked in on me and would have been implicated in wrongdoing.  And finally, I was exhausted.  After three years of continuous harassment and discrimination by OHSU administrators, no way to achieve justice internally, and concerning blood pressure measurements, continuing as a faculty member at OHSU was untenable.

I am very happy to be gone and healthy again.

Categories
Title IX

Major Title IX Violations Identified at Penn State

Pennsylvania State University has failed to provide “prompt and equitable” reporting and investigation processes for several years of complaints of sexual misconduct, the Department of Education determined after a six-year examination of the university’s Title IX procedures.

The department’s Office for Civil Rights, or OCR, concluded an investigation of eight of Penn State’s campuses opened by the Obama administration in 2014, following revelations that numerous high-ranking university officials neglected to report decades of child sexual abuse by Jerry Sandusky, a former assistant football coach. The investigation showed that Penn State “has not adequately addressed its failures in the wake of the Sandusky scandal,” wrote Carol Ashley, enforcement director for OCR, in a March 26 letter to President Eric Barron. Ashley outlined Penn State’s noncompliance with Title IX, the law prohibiting sex discrimination in education institutions that receive federal funding.

Penn State’s practices have violated the rights of both complainants and respondents in cases of alleged sexual misconduct, Ashley wrote. The university’s current Title IX policies do not provide adequate information to students and staff members about where to file a complaint, and an analysis of the 2016-17 academic year found significant delays in case processing, according to the letter. Ashley also identified specific instances when the athletic department failed to report to the university’s Title IX coordinator complaints of sexual harassment by coaches made from 2015 to 2018.

Parts of the OCR findings include past practices that have been addressed by Penn State over the course of the investigation, and remaining noncompliance “will be the immediate focus of the university’s efforts to more effectively meet OCR guidance and the needs of our community,” said a Penn State statement.

“The university remains committed to increasing the responsiveness of its policies for our students and employees,” the statement said. “We believe this review by OCR will assist Penn State in improving how it addresses the issue of sexual violence, misconduct and harassment on campus in the future.”

OCR also determined that the university’s policies violate due process rights by suspending students against whom sexual misconduct complaints are made without first meeting with those students. (Accused students can then appeal such interim suspensions.) Penn State only recently began permitting witnesses to testify at Title IX hearings, and the Office of Student Conduct can exclude any witnesses found to be “duplicative, irrelevant, or inappropriate,” which could prevent important testimony during hearings, the letter said.

“The university’s reaction to the Sandusky scandal exhibited wholesale problems amounting to a cluster of grievously deficient failures,” Ashley wrote.

Penn State has agreed “in a spirit of cooperation” to correct the issues identified by OCR, which additionally include various problems with record keeping and documentation, Kenneth Marcus, assistant secretary for civil rights, said in a press release from the Department of Education. The university will continue to report to OCR about how it handles all Title IX complaints made during the remainder of the 2019-20 academic year and 2020-21, the release said.

“Given all of the attention that Penn State has faced in the wake of the Jerry Sandusky scandal, it is disappointing that so many serious problems have remained at that university system,” Marcus said. “OCR will closely monitor the university to make sure that it fulfills the requirements of the resolution agreement.”

Categories
Campus

Overcoming a Climate of Fear on Campus: SAVE Statement on the Coronavirus Threat

On November 17, the first case of coronavirus was reported in Wuhan, China. The virus began to spread in China and then internationally. A mere four months later, most college campuses in the United States are physically closed. Many states have shut down non-essential businesses. Americans are fearful for their own health, the well-being of their family members, and the state of the economy.

Through all of this, SAVE continues to push forward to end campus “Kangaroo Courts” and to restore fairness and due process.  We cannot dissipate the momentum that we have all worked so hard to achieve.

The current untenable situation can be traced back to 2011 when the Department of Education issued its unlawful “Dear Colleague Letter” on campus violence. Campus activists used the new policy to marginalize the criminal justice system and to impose a new regimen of “Peoples’ Justice” that lacked the rudiments of fairness, both to complainants and the accused.

As a result, female students, caught up in a growing moral panic, feared that they would become victims of sexual assault. Male students became fearful of being falsely accused and expelled. Faculty became fearful that a stray comment would be misconstrued as “sexual harassment,” curtailing their career opportunities. College attorneys worried about the expanding climate of litigiousness. And administrators feared loss of federal funding.

Seeking to stop this cycle of fear, the Department of Education rescinded the Dear Colleague Letter and issued proposed new regulations, which are expected to be finalized soon. In response, SAVE is developing a detailed plan to support the implementation of new regulations, including media, legislative, outreach, and regulatory compliance efforts.

SAVE is confident that we will succeed in overcoming fear, both on college campuses and in ending the coronavirus threat. Our best wishes are with you during these uncertain times. We are grateful for your continuing support.

Sincerely,

Ed

E. Everett Bartlett, PhD

President

SAVE: Stop Abusive and Violent Environments

P.O. Box 1221

Rockville, MD 20849

T: 301-801-0608

www.saveservices.org

Categories
Sexual Assault Sexual Harassment Title IX

Colleges Plead for More Time to Implement New Title IX Regulations

March 20, 5:45 p.m. Colleges and universities have their hands full dealing with the coronavirus outbreak, as they transition to online classes, close campuses and worrying about the health and housing of their students. But many are worried they may soon have to implement a controversial rule by U.S. Secretary of Education Betsy DeVos that will change how institutions handle allegations of sexual assault and harassment, including a requirement the accused be able to cross-examine their accusers in a live hearing.

DeVos has been rumored to be issuing the rule soon. Though the Office of Management and Budget, which reviews proposed new rules, has meetings with stakeholders scheduled through April 6, the office could cancel them and green-light a rule at any time.

The rule would involve changing policies, including faculty agreements, said Brett A. Sokolow,  president of the Association of Title IX Administrators.

“Issuing Title IX regulations in the midst of coronavirus response would be a huge distraction for schools and colleges, which need to be focused right now on transitioning essential services to online delivery,” he said. While institutions are usually given 30 to 90 days to comply with a new rule, he said they should be given at least a year.

More than 10 higher educations asked this week in a memo for federal lawmakers to give DeVos “the authority to waive compliance with significant and/or costly new regulatory requirements that may be introduced in this period, as institutions’ ability to come into compliance will necessitate a substantial outlay of resources that are better allocated to other purposes at this time.”

Craig Lindwarm, vice president for government affairs at the Association of Public and Land-grant Universities, said his group is worried about having to comply with a pending rule expanding the reporting requirements for institutions for foreign gifts and contracts.

“Now is not the time to impose substantial new regulatory burdens on institutions, and significant challenges in implementation, when campuses are closing and responding to the emergency conditions they’re facing,” he said.

“We have significant concerns that institutions won’t have the bandwidth or the resources to implement these regulations,” said Matt Owens, the Association of American Universities’ executive vice president and vice president for federal relations.

“This is not the time,” said Elizabeth Tang, education and workplace justice counsel at the National Women’s Law Center. “Students and families are struggling to provide for their basic needs, and schools scrambling to provide online resources. It would be absolutely inappropriate to issue a new rule in the midst of all this.”

The law center has said it would file a suit to block the rule if the final version is similar to the initial version DeVos proposed. Many of the Trump administration’s rules have been blocked in court, she said. But Sokolow, writing in Inside Higher Ed, warned institutions will have to respond to a new rule even if it is being challenged in court.

“It’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined,” he wrote in a Jan. 15 opinion piece on the potential impact of the new rule on institutions.

Source: https://www.insidehighered.com/news/2020/03/23/live-updates-latest-news-coronavirus-and-higher-education

Categories
Uncategorized

6th Circuit: Suspend First Or Else

A few months earlier, a Sixth Circuit Court of Appeals panel in an opinion by Judge Alice Batchelder held that a female accuser did not have a cause of action against the college for allowing the accused to remain on campus. Or to put it bluntly, not suspending or expelling the male student did not allow the female student to claim she was harassed by having to suffer his mere presence on campus.

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. 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.

What this meant is that colleges didn’t subject themselves to liability to the accuser by imposing a lesser remedy than expulsion, and that the circuit was emphasizing a return to the criteria stated by the Supreme Court in Davis v. Monroe County Board of Ed., that the harassment must be “severe, pervasive and objectively offensive.”

A different panel of the Sixth Circuit just ruled to the contrary in Foster v. University of Michigan.

Foster was the victim of sexual harassment during a University of Michigan Ross School of Business executive MBA program located off-site in Los Angeles, California. After Foster reported that the respondent*, a fellow classmate in the program, had sexually harassed her, the University instituted a no-contact and no-retaliation order against him while it investigated her complaint. Foster argues that the University’s response to the respondent’s unwillingness to comply with these measures was clearly unreasonable and caused her to undergo further harassment.

Because we believe that Foster has established a genuine issue of material fact as to whether the University was deliberately indifferent to the sexual harassment she suffered at the hands of a fellow student, we REVERSE the grant of summary judgment and REMAND for further proceedings consistent with this opinion.

There is an obvious and salient factual distinction between the two decisions. In the earlier case, the male accused’s only “offense” was still existing on campus, and the accuser’s “complaint” was that she would see him, and that the mere sight of him was traumatic enough to constitute harassment.

In the second case, the accuser claimed that the male accused engaged in affirmative harassing conduct in violation of the “no contact” order imposed by the school.

The accused student later violated the order, blocking Foster from doorways, texting her, writing threats on Facebook and detailing Foster’s Title IX claim via email to other students in the E.M.B.A. program. The university followed up on Foster’s communication about the incidents and banned the accused student from a class and from attending commencement events in Ann Arbor, Mich., according to court documents. He was arrested after showing up to a commencement event and sent back to California, the opinion states.

While the details, and the significance of the conduct, are disputed, the court nonetheless held the remedy used by Michigan, the “no contact” order and various related directives, were not, as a matter of law, sufficient to show that even if they proved insufficient, the school was not “deliberately indifferent.” In other words, even though the school took deliberate action, it could still be liable for deliberate indifference if the court, in retrospect, deemed the action inadequate.

What’s a college to do? As much as Judge Batchelder’s opinion concluded that the mere sight of an accused male student didn’t constitute harassment, such that the university was under no duty to suspend or expel every male accused lest it be liable under Title IX if the female student complained, the liability is contingent not on the university’s deliberate response to the complaint, but hinges on the male student’s compliance, the female student’s subjective satisfaction with the remedy and, of course, the validity of the subsequent complaints that the male student continued to engage in conduct that the female student felt was harassment.

The only safe way for a college to avoid Title IX liability, then, is to suspend or expel the male student, since they can’t be positive that the male student left on campus won’t engage in conduct that either is, or could be deemed, harassment. Indeed, even if the male student tries his best to comply with the school’s directives, there is no assurance that the students won’t cross paths at times, particularly when they’re both in the same educational program. And there is never an assurance that the sensitivity of the accuser won’t give rise to exaggerated claims of trauma and suffering by otherwise benign and harmless action.

“It’s a dynamic process,” [Appellant’s attorney, Joshua] Engel said. “The school puts in place what seems reasonable, but when the accused student says, ‘I’m not going to follow these rules,’ the school can’t just say, ‘We did something, good luck.’”

In dissent, Judge Jeffrey Sutton points out the absurd conundrum.

It’s not a university’s job to do the impossible—to “purg[e] their schools of actionable peer harassment”; it’s a university’s job to respond in good faith to allegations of harassment to eliminate the problem.

That’s what Michigan tried to do and tried to do in good faith. From March 13, 2014, forward, Foster presented the University with five instances of misconduct by the harasser. Each time, the University adopted escalating measures proportionate to the misconduct. Not once did its action remotely count as “clearly unreasonable.”

Going forward, there appears to be only one rational option in the Sixth Circuit for schools confronted with an accusation of sexual harassment, not because far lesser options aren’t available and won’t work, but because the good faith efforts to address them using reasonable means won’t protect the school from subsequent Title IX liability: get rid of the male student.

*Inexplicably, but perhaps tellingly, the court refers to the accused male student as the “respondent” even though he was not a party to the action.

Source: https://blog.simplejustice.us/2020/03/13/6th-circuit-suspend-first-or-else/