Month: May 2020

When Rules Don’t Apply

Post author By saveadmin
Post date May 9, 2020

Joe Biden wants to deny accused college students the procedural protections that he demands for himself.

May 8, 2020

Politics and law

Normally, it would be unremarkable to hear the opposition party’s presumptive presidential nominee criticize a major policy initiative of the incumbent administration. But Joe Biden’s public repudiation of Secretary of Education Betsy DeVos’s new Title IX regulations was not a normal circumstance. After several days in which Biden and key Democratic allies celebrated the importance of due process in evaluating sexual-assault allegations, Biden denounced DeVos’s own efforts to ensure that accused college students receive fair procedures. Even in an era of heightened political cynicism, the apparent hypocrisy was striking.

At one level, Biden’s reaction was understandable, since the new regulations undid an Obama-era initiative in which Biden was the key player. Convinced that male students typically stood by as they saw “a brother taking a drunk freshman coed up the stairs to his room,” Biden oversaw a multiyear effort to use Title IX tribunals to “change the culture” on campus. Due process, the rights of the accused, or the possibility of false allegations appeared in no public speeches that he gave on the topic; indeed, the concepts were obstacles to his goal. Too many not-guilty findings wouldn’t produce the needed change.

Then came the allegation by former Biden staffer Tara Reade, who charges that her former boss sexually assaulted her 27 years ago. Reade’s claim has many weaknesses, but it’s nevertheless weighty enough, as Andrew Sullivan and Robby Soave have observed, to yield a guilty finding from a Title IX tribunal under the procedures and standards of evidence that Biden championed. Biden has now urged the public to evaluate Reade’s allegations under traditional rules, respecting the presumption of his innocence. Reade, Biden maintains, should face rigorous questioning rather than enjoying the benefit of the reflexive belief that he had offered to campus accusers.

Prominent Democrats have gone even further. California senator Dianne Feinstein portrayed Reade’s long delay in going public with her charges as a sign of her unreliability—a not-unreasonable response, but a sharp contrast with how campus cases were adjudicated under the Obama-Biden rules, where counterintuitive behavior by accusers was regarded as a further sign of truthfulness. American Federation of Teachers president Randi Weingarten articulated the party’s new standard: Democrats “always want to make sure that a woman is respected. But you also want to make sure that people have due process.” Again, a wholly reasonable sentiment, but one that prominent Democrats previously had not applied to previous sexual-assault claims.

Subjected to what he claims is a false allegation, Biden might have used the DeVos regulations to acknowledge that college students—who can’t count on powerful senators or key educational union heads backing them—deserve the same opportunity to defend their innocence that he is getting. The new regulations, requiring colleges to provide both the accused and the accusing students with all the evidence compiled in an investigation and then to hold a hearing in which advocates for both students can cross-examine witnesses, hardly encompass a radical vision of due process.

Biden, however, could not rise to the occasion. Instead, he wildly claimed that the regulations would “shame and silence” campus complainants and “strip survivors of their rights”—as if Title IX, an equity statute, gives accusers the right to convene a kangaroo court to adjudicate their allegations. He promised to restore the Obama-era policies that created the due-process crisis on the nation’s campuses—even though implementing those procedures in 2021 would require at least some colleges to ignore Appeals Court holdings from lawsuits filed by accused students.

Two other sections of Biden’s statement amplify his hypocrisy. The DeVos regulations require investigation of allegations of quid pro quo harassment by staff or faculty, as well as of rape, sexual assault, stalking, domestic violence, and dating violence. They also require investigation of claims of sexual harassment as defined by the Supreme Court’s most important Title IX case, Davis v. Monroe County Board of Education. Biden, however, apparently sees a Title IX process focused on such serious offenses as a negative, allowing colleges “to choose to investigate only more extreme acts of violence and harassment,” ignoring allegations of less extreme offenses. This is an odd line of argument for someone who has admitted to making women uncomfortable by touching them in public, albeit without ill intent. Surely Biden would not support harsh punishment for a college student who engaged in behavior identical to his?

Biden also has promised to put the regulations “to a quick end in January 2021, because as President, I’ll be right where I always have been throughout my career—on the side of survivors.” A president ignoring properly adopted regulations is something for which Democrats appropriately criticized the Trump administration in 2017.

If Biden is oblivious to the absurdity of his demanding procedural protections that he intends to deny to college students facing similar allegations, other Democrats seem more self-aware. None has endorsed the DeVos regulations, but in sharp contrast with 2018, when the education secretary released a preliminary version of the new campus rules, only a few congressional Democrats have publicly criticized her work this time around. A tweet thread from Washington senator Patty Murray and statements from House leaders Nancy Pelosi and Steny Hoyer contained heated rhetoric but failed to specify even one provision of the regulations that they opposed.

Before the presidential campaign gets into full swing, perhaps a reporter could ask Biden to reconcile his response to Reade with his attack on the due-process protections in DeVos’s regulations. How can a college student facing a false allegation defend himself effectively under the Title IX procedures that Biden would reimpose on the nation’s campuses? And how would Biden defend himself against Tara Reade’s allegations, if he were held to those same standards?

KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.

Title IX Regulatory Text — 34 CFR 106

Post author By saveadmin
Post date May 9, 2020

PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

1. The authority citation for part 106 continues to read as follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.

2. Section 106.3 is amended by revising paragraph (a) to read as follows:

§106.3 Remedial and affirmative action and self-evaluation.

(a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated
against persons on the basis of sex in an education program or activity under this part, or
otherwise violated this part, such recipient must take such remedial action as the Assistant
Secretary deems necessary to remedy the violation, consistent with 20 U.S.C. 1682.

* * * * *

3. Section 106.6 is amended by revising the section heading and adding paragraphs (d),
(e), (f), (g), and (h) to read as follows:
§ 106.6 Effect of other requirements and preservation of rights.

* * * * *

(d) Constitutional protections. Nothing in this part requires a recipient to:
(1) Restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution;
(2) Deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution; or
(3) Restrict any other rights guaranteed against government action by the U.S.
Constitution.
(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family
Educational Rights and Privacy Act (FERPA). The obligation to comply with this part is not
obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR
part 99.
(f) Title VII of the Civil Rights Act of 1964. Nothing in this part may be read in derogation
of any individual’s rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
or any regulations promulgated thereunder.
(g) Exercise of rights by parents or guardians. Nothing in this part may be read in
derogation of any legal right of a parent or guardian to act on behalf of a “complainant,”
“respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but
not limited to filing a formal complaint.
(h) Preemptive effect. To the extent of a conflict between State or local law and title IX as
implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44,
and 106.45 is not obviated or alleviated by any State or local law.

*****

4. Section 106.8 is revised to read as follows:
§ 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance
procedures.
(a) Designation of coordinator. Each recipient must designate and authorize at least one
employee to coordinate its efforts to comply with its responsibilities under this part, which
employee must be referred to as the “Title IX Coordinator.” The recipient must notify applicants
for admission and employment, students, parents or legal guardians of elementary and secondary
school students, employees, and all unions or professional organizations holding collective
bargaining or professional agreements with the recipient, of the name or title, office address,
electronic mail address, and telephone number of the employee or employees designated as the
Title IX Coordinator pursuant to this paragraph. Any person may report sex discrimination,
including sexual harassment (whether or not the person reporting is the person alleged to be the
victim of conduct that could constitute sex discrimination or sexual harassment), in person, by
mail, by telephone, or by electronic mail, using the contact information listed for the Title IX
Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s
verbal or written report. Such a report may be made at any time (including during non-business
hours) by using the telephone number or electronic mail address, or by mail to the office address,
listed for the Title IX Coordinator.
(b) Dissemination of policy—(1) Notification of policy. Each recipient must notify
persons entitled to a notification under paragraph (a) of this section that the recipient does not
discriminate on the basis of sex in the education program or activity that it operates, and that it is
required by title IX and this part not to discriminate in such a manner. Such notification must
state that the requirement not to discriminate in the education program or activity extends to
admission (unless subpart C of this part does not apply) and employment, and that inquiries
about the application of title IX and this part to such recipient may be referred to the recipient’s
Title IX Coordinator, to the Assistant Secretary, or both.
(2) Publications. (i) Each recipient must prominently display the contact information
required to be listed for the Title IX Coordinator under paragraph (a) of this section and the
policy described in paragraph (b)(1) of this section on its website, if any, and in each handbook
or catalog that it makes available to persons entitled to a notification under paragraph (a) of this
section.
(ii) A recipient must not use or distribute a publication stating that the recipient treats
applicants, students, or employees differently on the basis of sex except as such treatment is
permitted by title IX or this part.
(c) Adoption of grievance procedures. A recipient must adopt and publish grievance
procedures that provide for the prompt and equitable resolution of student and employee
complaints alleging any action that would be prohibited by this part and a grievance process that
complies with § 106.45 for formal complaints as defined in § 106.30. A recipient must provide to
persons entitled to a notification under paragraph (a) of this section notice of the recipient’s
grievance procedures and grievance process, including how to report or file a complaint of sex
discrimination, how to report or file a formal complaint of sexual harassment, and how the
recipient will respond.
(d) Application outside the United States. The requirements of paragraph (c) of this
section apply only to sex discrimination occurring against a person in the United States.
5. Section 106.9 is revised to read as follows:
§ 106.9 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

6. Section 106.12 is amended by revising paragraph (b) to read as follows:
§ 106.12 Educational institutions controlled by religious organizations.

* * * * *

(b) Assurance of exemption. An educational institution that seeks assurance of the
exemption set forth in paragraph (a) of this section may do so by submitting in writing to the
Assistant Secretary a statement by the highest ranking official of the institution, identifying the
provisions of this part that conflict with a specific tenet of the religious organization. An
institution is not required to seek assurance from the Assistant Secretary in order to assert such
an exemption. In the event the Department notifies an institution that it is under investigation for
noncompliance with this part and the institution wishes to assert an exemption set forth in
paragraph (a) of this section, the institution may at that time raise its exemption by submitting in
writing to the Assistant Secretary a statement by the highest ranking official of the institution,
identifying the provisions of this part which conflict with a specific tenet of the religious
organization, whether or not the institution had previously sought assurance of an exemption
from the Assistant Secretary.

* * * * *

7. Add § 106.18 to subpart B to read as follows:
§ 106.18 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

8. Add § 106.24 to subpart C to read as follows:
§ 106.24 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.
9. Add § 106.30 to subpart D to read as follows:

§ 106.30 Definitions.
(a) As used in this part:
Actual knowledge means notice of sexual harassment or allegations of sexual harassment
to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute
corrective measures on behalf of the recipient, or to any employee of an elementary and
secondary school. Imputation of knowledge based solely on vicarious liability or constructive
notice is insufficient to constitute actual knowledge. This standard is not met when the only
official of the recipient with actual knowledge is the respondent. The mere ability or obligation
to report sexual harassment or to inform a student about how to report sexual harassment, or
having been trained to do so, does not qualify an individual as one who has authority to institute
corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is
not limited to, a report of sexual harassment to the Title IX Coordinator as described in §
106.8(a).
Complainant means an individual who is alleged to be the victim of conduct that could
constitute sexual harassment.
Consent. The Assistant Secretary will not require recipients to adopt a particular
definition of consent with respect to sexual assault, as referenced in this section.
Formal complaint means a document filed by a complainant or signed by the Title IX
Coordinator alleging sexual harassment against a respondent and requesting that the recipient
investigate the allegation of sexual harassment. At the time of filing a formal complaint, a
complainant must be participating in or attempting to participate in the education program or
activity of the recipient with which the formal complaint is filed. A formal complaint may be
filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact
information required to be listed for the Title IX Coordinator under § 106.8(a), and by any
additional method designated by the recipient. As used in this paragraph, the phrase “document
filed by a complainant” means a document or electronic submission (such as by electronic mail
or through an online portal provided for this purpose by the recipient) that contains the
complainant’s physical or digital signature, or otherwise indicates that the complainant is the
person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the
Title IX Coordinator is not a complainant or otherwise a party under this part or under § 106.45,
and must comply with the requirements of this part, including § 106.45(b)(1)(iii).
Respondent means an individual who has been reported to be the perpetrator of conduct
that could constitute sexual harassment.
Sexual harassment means conduct on the basis of sex that satisfies one or more of the
following:
(1) An employee of the recipient conditioning the provision of an aid, benefit, or service
of the recipient on an individual’s participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal access to the recipient’s
education program or activity; or
(3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as
defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or
“stalking” as defined in 34 U.S.C. 12291(a)(30).
Supportive measures means non-disciplinary, non-punitive individualized services
offered as appropriate, as reasonably available, and without fee or charge to the complainant or
the respondent before or after the filing of a formal complaint or where no formal complaint has
been filed. Such measures are designed to restore or preserve equal access to the recipient’s
education program or activity without unreasonably burdening the other party, including
measures designed to protect the safety of all parties or the recipient’s educational environment,
or deter sexual harassment. Supportive measures may include counseling, extensions of
deadlines or other course-related adjustments, modifications of work or class schedules, campus
escort services, mutual restrictions on contact between the parties, changes in work or housing
locations, leaves of absence, increased security and monitoring of certain areas of the campus,
and other similar measures. The recipient must maintain as confidential any supportive measures
provided to the complainant or respondent, to the extent that maintaining such confidentiality
would not impair the ability of the recipient to provide the supportive measures. The Title IX
Coordinator is responsible for coordinating the effective implementation of supportive
measures.
(b) As used in §§ 106.44 and 106.45:
Elementary and secondary school means a local educational agency (LEA), as defined in
the Elementary and Secondary Education Act of 1965, as amended by the Every Student
Succeeds Act, a preschool, or a private elementary or secondary school.
Postsecondary institution means an institution of graduate higher education as defined in
§ 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an
institution of professional education as defined in § 106.2(n), or an institution of vocational
education as defined in § 106.2(o).
10. Add § 106.44 to subpart D to read as follows:
§ 106.44 Recipient’s response to sexual harassment.
(a) General response to sexual harassment. A recipient with actual knowledge of sexual
harassment in an education program or activity of the recipient against a person in the United
States, must respond promptly in a manner that is not deliberately indifferent. A recipient is
deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light
of the known circumstances. For the purposes of this section, §§ 106.30, and 106.45, “education
program or activity” includes locations, events, or circumstances over which the recipient
exercised substantial control over both the respondent and the context in which the sexual
harassment occurs, and also includes any building owned or controlled by a student organization
that is officially recognized by a postsecondary institution. A recipient’s response must treat
complainants and respondents equitably by offering supportive measures as defined in § 106.30
to a complainant, and by following a grievance process that complies with § 106.45 before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. The Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as defined in § 106.30, consider
the complainant’s wishes with respect to supportive measures, inform the complainant of the
availability of supportive measures with or without the filing of a formal complaint, and explain
to the complainant the process for filing a formal complaint. The Department may not deem a
recipient to have satisfied the recipient’s duty to not be deliberately indifferent under this part
based on the recipient’s restriction of rights protected under the U.S. Constitution, including the
First Amendment, Fifth Amendment, and Fourteenth Amendment.
(b) Response to a formal complaint. (1) In response to a formal complaint, a recipient
must follow a grievance process that complies with § 106.45. With or without a formal
complaint, a recipient must comply with § 106.44(a).
(2) The Assistant Secretary will not deem a recipient’s determination regarding
responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of
discrimination under title IX by the recipient, solely because the Assistant Secretary would have
reached a different determination based on an independent weighing of the evidence.
(c) Emergency removal. Nothing in this part precludes a recipient from removing a
respondent from the recipient’s education program or activity on an emergency basis, provided
that the recipient undertakes an individualized safety and risk analysis, determines that an
immediate threat to the physical health or safety of any student or other individual arising from
the allegations of sexual harassment justifies removal, and provides the respondent with notice
and an opportunity to challenge the decision immediately following the removal. This provision
may not be construed to modify any rights under the Individuals with Disabilities Education Act,
Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
(d) Administrative leave. Nothing in this subpart precludes a recipient from placing a
non-student employee respondent on administrative leave during the pendency of a grievance
process that complies with § 106.45. This provision may not be construed to modify any rights
under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.
11. Add § 106.45 to subpart D to read as follows:
§ 106.45 Grievance process for formal complaints of sexual harassment.
(a) Discrimination on the basis of sex. A recipient’s treatment of a complainant or a
respondent in response to a formal complaint of sexual harassment may constitute discrimination
on the basis of sex under title IX.
(b) Grievance process. For the purpose of addressing formal complaints of sexual
harassment, a recipient’s grievance process must comply with the requirements of this section.
Any provisions, rules, or practices other than those required by this section that a recipient
adopts as part of its grievance process for handling formal complaints of sexual harassment as
defined in § 106.30, must apply equally to both parties.
(1) Basic requirements for grievance process. A recipient’s grievance process must—
(i) Treat complainants and respondents equitably by providing remedies to a complainant
where a determination of responsibility for sexual harassment has been made against the
respondent, and by following a grievance process that complies with this section before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. Remedies must be designed to restore or preserve
equal access to the recipient’s education program or activity. Such remedies may include the
same individualized services described in § 106.30 as “supportive measures”; however, remedies
need not be non-disciplinary or non-punitive and need not avoid burdening the respondent;
(ii) Require an objective evaluation of all relevant evidence – including both inculpatory
and exculpatory evidence – and provide that credibility determinations may not be based on a
person’s status as a complainant, respondent, or witness;
(iii) Require that any individual designated by a recipient as a Title IX Coordinator,
investigator, decision-maker, or any person designated by a recipient to facilitate an informal
resolution process, not have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent. A recipient must ensure that
Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal
resolution process, receive training on the definition of sexual harassment in § 106.30, the scope
of the recipient’s education program or activity, how to conduct an investigation and grievance
process including hearings, appeals, and informal resolution processes, as applicable, and how to
serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest,
and bias. A recipient must ensure that decision-makers receive training on any technology to be
used at a live hearing and on issues of relevance of questions and evidence, including when
questions and evidence about the complainant’s sexual predisposition or prior sexual behavior
are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that
investigators receive training on issues of relevance to create an investigative report that fairly
summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials
used to train Title IX Coordinators, investigators, decision-makers, and any person who
facilitates an informal resolution process, must not rely on sex stereotypes and must promote
impartial investigations and adjudications of formal complaints of sexual harassment;
(iv) Include a presumption that the respondent is not responsible for the alleged conduct
until a determination regarding responsibility is made at the conclusion of the grievance process;
(v) Include reasonably prompt time frames for conclusion of the grievance process,
including reasonably prompt time frames for filing and resolving appeals and informal resolution
processes if the recipient offers informal resolution processes, and a process that allows for the
temporary delay of the grievance process or the limited extension of time frames for good cause
with written notice to the complainant and the respondent of the delay or extension and the
reasons for the action. Good cause may include considerations such as the absence of a party, a
party’s advisor, or a witness; concurrent law enforcement activity; or the need for language
assistance or accommodation of disabilities;
(vi) Describe the range of possible disciplinary sanctions and remedies or list the possible
disciplinary sanctions and remedies that the recipient may implement following any
determination of responsibility;
(vii) State whether the standard of evidence to be used to determine responsibility is the
preponderance of the evidence standard or the clear and convincing evidence standard, apply the
same standard of evidence for formal complaints against students as for formal complaints
against employees, including faculty, and apply the same standard of evidence to all formal
complaints of sexual harassment;
(viii) Include the procedures and permissible bases for the complainant and respondent to
appeal;
(ix) Describe the range of supportive measures available to complainants and
respondents; and
(x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute,
or seek disclosure of, information protected under a legally recognized privilege, unless the
person holding such privilege has waived the privilege.
(2) Notice of allegations—(i) Upon receipt of a formal complaint, a recipient must
provide the following written notice to the parties who are known:
(A) Notice of the recipient’s grievance process that complies with this section, including
any informal resolution process.
(B) Notice of the allegations of sexual harassment potentially constituting sexual
harassment as defined in § 106.30, including sufficient details known at the time and with
sufficient time to prepare a response before any initial interview. Sufficient details include the
identities of the parties involved in the incident, if known, the conduct allegedly constituting
sexual harassment under § 106.30, and the date and location of the alleged incident, if known.
The written notice must include a statement that the respondent is presumed not responsible for
the alleged conduct and that a determination regarding responsibility is made at the conclusion of
the grievance process. The written notice must inform the parties that they may have an advisor
of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of
this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section. The
written notice must inform the parties of any provision in the recipient’s code of conduct that
prohibits knowingly making false statements or knowingly submitting false information during
the grievance process.
(ii) If, in the course of an investigation, the recipient decides to investigate allegations
about the complainant or respondent that are not included in the notice provided pursuant to
paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional
allegations to the parties whose identities are known.
(3) Dismissal of a formal complaint—(i) The recipient must investigate the allegations in
a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual
harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education
program or activity, or did not occur against a person in the United States, then the recipient
must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment
under title IX or this part; such a dismissal does not preclude action under another provision of
the recipient’s code of conduct.
(ii) The recipient may dismiss the formal complaint or any allegations therein, if at any
time during the investigation or hearing: a complainant notifies the Title IX Coordinator in
writing that the complainant would like to withdraw the formal complaint or any allegations
therein; the respondent is no longer enrolled or employed by the recipient; or specific
circumstances prevent the recipient from gathering evidence sufficient to reach a determination
as to the formal complaint or allegations therein.
(iii) Upon a dismissal required or permitted pursuant to paragraph (b)(3)(i) or (b)(3)(ii) of
this section, the recipient must promptly send written notice of the dismissal and reason(s)
therefor simultaneously to the parties.
(4) Consolidation of formal complaints. A recipient may consolidate formal complaints
as to allegations of sexual harassment against more than one respondent, or by more than one
complainant against one or more respondents, or by one party against the other party, where the
allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance
process involves more than one complainant or more than one respondent, references in this
section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.
(5) Investigation of a formal complaint. When investigating a formal complaint and
throughout the grievance process, a recipient must—
(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to
reach a determination regarding responsibility rest on the recipient and not on the parties
provided that the recipient cannot access, consider, disclose, or otherwise use a party’s records
that are made or maintained by a physician, psychiatrist, psychologist, or other recognized
professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or
assisting in that capacity, and which are made and maintained in connection with the provision of
treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so
for a grievance process under this section (if a party is not an “eligible student,” as defined in 34
CFR 99.3, then the recipient must obtain the voluntary, written consent of a “parent,” as defined
in 34 CFR 99.3);
(ii) Provide an equal opportunity for the parties to present witnesses, including fact and
expert witnesses, and other inculpatory and exculpatory evidence;
(iii) Not restrict the ability of either party to discuss the allegations under investigation or
to gather and present relevant evidence;
(iv) Provide the parties with the same opportunities to have others present during any
grievance proceeding, including the opportunity to be accompanied to any related meeting or
proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and
not limit the choice or presence of advisor for either the complainant or respondent in any
meeting or grievance proceeding; however, the recipient may establish restrictions regarding the
extent to which the advisor may participate in the proceedings, as long as the restrictions apply
equally to both parties;
(v) Provide, to a party whose participation is invited or expected, written notice of the
date, time, location, participants, and purpose of all hearings, investigative interviews, or other
meetings, with sufficient time for the party to prepare to participate;
(vi) Provide both parties an equal opportunity to inspect and review any evidence
obtained as part of the investigation that is directly related to the allegations raised in a formal
complaint, including the evidence upon which the recipient does not intend to rely in reaching a
determination regarding responsibility and inculpatory or exculpatory evidence whether obtained
from a party or other source, so that each party can meaningfully respond to the evidence prior to
conclusion of the investigation. Prior to completion of the investigative report, the recipient must
send to each party and the party’s advisor, if any, the evidence subject to inspection and review
in an electronic format or a hard copy, and the parties must have at least 10 days to submit a
written response, which the investigator will consider prior to completion of the investigative
report. The recipient must make all such evidence subject to the parties’ inspection and review
available at any hearing to give each party equal opportunity to refer to such evidence during the
hearing, including for purposes of cross-examination; and
(vii) Create an investigative report that fairly summarizes relevant evidence and, at least
10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or
other time of determination regarding responsibility, send to each party and the party’s advisor, if
any, the investigative report in an electronic format or a hard copy, for their review and written
response.
(6) Hearings. (i) For postsecondary institutions, the recipient’s grievance process must
provide for a live hearing. At the live hearing, the decision-maker(s) must permit each party’s
advisor to ask the other party and any witnesses all relevant questions and follow-up questions,
including those challenging credibility. Such cross-examination at the live hearing must be
conducted directly, orally, and in real time by the party’s advisor of choice and never by a party
personally, notwithstanding the discretion of the recipient under paragraph (b)(5)(iv) of this
section to otherwise restrict the extent to which advisors may participate in the proceedings. At
the request of either party, the recipient must provide for the live hearing to occur with the
parties located in separate rooms with technology enabling the decision-maker(s) and parties to
simultaneously see and hear the party or the witness answering questions. Only relevant crossexamination and other questions may be asked of a party or witness. Before a complainant,
respondent, or witness answers a cross-examination or other question, the decision-maker(s)
must first determine whether the question is relevant and explain any decision to exclude a
question as not relevant. If a party does not have an advisor present at the live hearing, the
recipient must provide without fee or charge to that party, an advisor of the recipient’s choice,
who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that
party. Questions and evidence about the complainant’s sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the complainant’s prior
sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. If a party or witness does not submit to cross-examination at the live hearing, the
decision-maker(s) must not rely on any statement of that party or witness in reaching a
determination regarding responsibility; provided, however, that the decision-maker(s) cannot
draw an inference about the determination regarding responsibility based solely on a party’s or
witness’s absence from the live hearing or refusal to answer cross-examination or other
questions. Live hearings pursuant to this paragraph may be conducted with all parties physically
present in the same geographic location or, at the recipient’s discretion, any or all parties,
witnesses, and other participants may appear at the live hearing virtually, with technology
enabling participants simultaneously to see and hear each other. Recipients must create an audio
or audiovisual recording, or transcript, of any live hearing and make it available to the parties for
inspection and review.
(ii) For recipients that are elementary and secondary schools, and other recipients that are
not postsecondary institutions, the recipient’s grievance process may, but need not, provide for a
hearing. With or without a hearing, after the recipient has sent the investigative report to the
parties pursuant to paragraph (b)(5)(vii) of this section and before reaching a determination
regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit
written, relevant questions that a party wants asked of any party or witness, provide each party
with the answers, and allow for additional, limited follow-up questions from each party. With or
without a hearing, questions and evidence about the complainant’s sexual predisposition or prior
sexual behavior are not relevant, unless such questions and evidence about the complainant’s
prior sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. The decision-maker(s) must explain to the party proposing the questions any
decision to exclude a question as not relevant.
(7) Determination regarding responsibility. (i) The decision-maker(s), who cannot be the
same person(s) as the Title IX Coordinator or the investigator(s), must issue a written
determination regarding responsibility. To reach this determination, the recipient must apply the
standard of evidence described in paragraph (b)(1)(vii) of this section.
(ii) The written determination must include—
(A) Identification of the allegations potentially constituting sexual harassment as defined
in § 106.30;
2027
(B) A description of the procedural steps taken from the receipt of the formal complaint
through the determination, including any notifications to the parties, interviews with parties and
witnesses, site visits, methods used to gather other evidence, and hearings held;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of the recipient’s code of conduct to the facts;
(E) A statement of, and rationale for, the result as to each allegation, including a
determination regarding responsibility, any disciplinary sanctions the recipient imposes on the
respondent, and whether remedies designed to restore or preserve equal access to the recipient’s
education program or activity will be provided by the recipient to the complainant; and
(F) The recipient’s procedures and permissible bases for the complainant and respondent
to appeal.
(iii) The recipient must provide the written determination to the parties simultaneously.
The determination regarding responsibility becomes final either on the date that the recipient
provides the parties with the written determination of the result of the appeal, if an appeal is
filed, or if an appeal is not filed, the date on which an appeal would no longer be considered
timely.
(iv) The Title IX Coordinator is responsible for effective implementation of any
remedies.
(8) Appeals. (i) A recipient must offer both parties an appeal from a determination
regarding responsibility, and from a recipient’s dismissal of a formal complaint or any
allegations therein, on the following bases:
(A) Procedural irregularity that affected the outcome of the matter;
(B) New evidence that was not reasonably available at the time the determination
regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of
interest or bias for or against complainants or respondents generally or the individual
complainant or respondent that affected the outcome of the matter.
(ii) A recipient may offer an appeal equally to both parties on additional bases.
(iii) As to all appeals, the recipient must:
(A) Notify the other party in writing when an appeal is filed and implement appeal
procedures equally for both parties;
(B) Ensure that the decision-maker(s) for the appeal is not the same person as the
decision-maker(s) that reached the determination regarding responsibility or dismissal, the
investigator(s), or the Title IX Coordinator;
(C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth
in paragraph (b)(1)(iii) of this section;
(D) Give both parties a reasonable, equal opportunity to submit a written statement in
support of, or challenging, the outcome;
(E) Issue a written decision describing the result of the appeal and the rationale for the
result; and
(F) Provide the written decision simultaneously to both parties.
(9) Informal resolution. A recipient may not require as a condition of enrollment or
continuing enrollment, or employment or continuing employment, or enjoyment of any other
right, waiver of the right to an investigation and adjudication of formal complaints of sexual
harassment consistent with this section. Similarly, a recipient may not require the parties to
participate in an informal resolution process under this section and may not offer an informal
resolution process unless a formal complaint is filed. However, at any time prior to reaching a
determination regarding responsibility the recipient may facilitate an informal resolution process,
such as mediation, that does not involve a full investigation and adjudication, provided that the
recipient –
(i) Provides to the parties a written notice disclosing: the allegations, the requirements of
the informal resolution process including the circumstances under which it precludes the parties
from resuming a formal complaint arising from the same allegations, provided, however, that at
any time prior to agreeing to a resolution, any party has the right to withdraw from the informal
resolution process and resume the grievance process with respect to the formal complaint, and
any consequences resulting from participating in the informal resolution process, including the
records that will be maintained or could be shared;
(ii) Obtains the parties’ voluntary, written consent to the informal resolution process; and
(iii) Does not offer or facilitate an informal resolution process to resolve allegations that
an employee sexually harassed a student.
(10) Recordkeeping. (i) A recipient must maintain for a period of seven years records of –
(A) Each sexual harassment investigation including any determination regarding
responsibility and any audio or audiovisual recording or transcript required under paragraph
(b)(6)(i) of this section, any disciplinary sanctions imposed on the respondent, and any remedies
provided to the complainant designed to restore or preserve equal access to the recipient’s
education program or activity;
(B) Any appeal and the result therefrom;
(C) Any informal resolution and the result therefrom; and
(D) All materials used to train Title IX Coordinators, investigators, decision-makers, and
any person who facilitates an informal resolution process. A recipient must make these training
materials publicly available on its website, or if the recipient does not maintain a website the
recipient must make these materials available upon request for inspection by members of the
public.
(ii) For each response required under § 106.44, a recipient must create, and maintain for a
period of seven years, records of any actions, including any supportive measures, taken in
response to a report or formal complaint of sexual harassment. In each instance, the recipient
must document the basis for its conclusion that its response was not deliberately indifferent, and
document that it has taken measures designed to restore or preserve equal access to the
recipient’s education program or activity. If a recipient does not provide a complainant with
supportive measures, then the recipient must document the reasons why such a response was not
clearly unreasonable in light of the known circumstances. The documentation of certain bases or
measures does not limit the recipient in the future from providing additional explanations or
detailing additional measures taken.

12. Add § 106.46 to subpart D to read as follows:
§ 106.46 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

13. Add § 106.62 to subpart E to read as follows:
§ 106.62 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

14. Subpart F is revised to read as follows:
Subpart F–Retaliation
Sec.
106.71 Retaliation
106.72 Severability

Subpart F–Retaliation

§ 106.71 Retaliation.
(a) Retaliation prohibited. No recipient or other person may intimidate, threaten, coerce,
or discriminate against any individual for the purpose of interfering with any right or privilege
secured by title IX or this part, or because the individual has made a report or complaint,
testified, assisted, or participated or refused to participate in any manner in an investigation,
proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination,
including charges against an individual for code of conduct violations that do not involve sex
discrimination or sexual harassment, but arise out of the same facts or circumstances as a report
or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the
purpose of interfering with any right or privilege secured by title IX or this part, constitutes
retaliation. The recipient must keep confidential the identity of any individual who has made a
report or complaint of sex discrimination, including any individual who has made a report or
filed a formal complaint of sexual harassment, any complainant, any individual who has been
reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as
may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part
99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct
of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging
retaliation may be filed according to the grievance procedures for sex discrimination required to
be adopted under § 106.8(c).
(b) Specific circumstances. (1) The exercise of rights protected under the First
Amendment does not constitute retaliation prohibited under paragraph (a) of this section.
(2) Charging an individual with a code of conduct violation for making a materially false
statement in bad faith in the course of a grievance proceeding under this part does not constitute
retaliation prohibited under paragraph (a) of this section, provided, however, that a determination
regarding responsibility, alone, is not sufficient to conclude that any party made a materially
false statement in bad faith.

§ 106.72 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.

15. Add subpart G to read as follows:
Subpart G – Procedures
Sec.
106.81 Procedures
106.82 Severability

Subpart G – Procedures
§ 106.81 Procedures.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are
hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR
100.6-100.11 and 34 CFR part 101. The definitions in § 106.30 do not apply to 34 CFR 100.6-
100.11 and 34 CFR part 101.

§ 106.82 Severability.
If any provision of this subpart or its application to any person, act, or practice is held
invalid, the remainder of the subpart or the application of its provisions to any person, act, or
practice shall not be affected thereby.
Subject Index to Title IX Preamble and Regulation [Removed]
16. Remove the Subject Index to Title IX Preamble and Regulation.
17. In addition to the amendments set forth above, in 34 CFR part 106, remove the
parenthetical authority citation at the ends of §§ 106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, ,
106.11, 106.12, 106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 106.32,
106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 106.41, 106.42, 106.43, 106.51,
106.52, 106.53, 106.54, 106.55, 106.56, 106.57, 106.58, 106.59, 106.60, and 106.61.

Source: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf , pages 2008-2033.

Title IX

Statement on New Title IX Regulations

Post author By saveadmin
Post date May 9, 2020

“These new regulations go a long way toward fixing a broken system,” said the National Association of Scholars (NAS) President Peter Wood. “We congratulate and thank Education Secretary Betsy DeVos for tackling the many problems that plague Title IX administration at America’s colleges and universities.”

The new regulations replace guidance documents from the Obama Administration which had pseudo-legal authority and allowed mere accusations of sexual offenses to sabotage the lives of accused students and faculty, many of whom were punished before even being heard, including suspensions and expulsions from schools, as well as permanent designations on academic records as sex offenders.

The NAS agrees with many of the policies advanced by the regulations, such as the requirement that recipient schools hear and respond to any and all students who claim discrimination in education because of their sex.

Sexual misconduct allegations are serious. Because of this, NAS is even more pleased to see that the new regulations provide basic due process protections to those accused of this type of Title IX discrimination by requiring schools to state explicitly in their Title IX policies that students accused of such behavior are presumed innocent until proven otherwise, that they cannot be punished until a case is closed and responsibility is found, and that all evidence and information regarding allegations, including exculpatory evidence, must be disclosed.

Additionally, such allegations must be aired in live hearings where witnesses and parties can be questioned and cross-examined by student advisors. All Title IX personnel – coordinators, investigators, and adjudicators — must be free of conflicts of interest or bias, and their training materials must be made available to the public.

Other aspects of the regulatory scheme limit the effectiveness of the great strides made above: The ability of accusers to appeal exoneration decisions poses “double-jeopardy” type risks; the omission of any deadline to file complaints (a rule like a statute of limitations); and inclusion of some sexual misconduct as educational discrimination under Title IX without evaluating its effect on equal educational access.

Dr. Peter Wood noted, “Ultimately, these regulations are a step in the right direction for Title IX reform. Transparency, and above all, considerable due process protections, will be restored when these regulations take effect.”

###

Please contact Chance Layton at layton@nas.org, or Teresa Manning at manning@nas.org. For more information about Title IX, please read our work at nas.org.

Photo: Betsy DeVos by Gage Skidmore on Flicker // CC BY-SA 2.0

Title IX

Everyone Deserves to Live Under the Biden Standard

Post author By saveadmin
Post date May 9, 2020

Former Vice President Joe Biden addresses a campaign rally in Cedar Rapids, Iowa, April 30, 2019. (Jonathan Ernst/Reuters)

It’s just basic American due process, so why is Betsy DeVos getting slammed?Why should Joe Biden get due process, but not others accused of sexual misconduct?

That’s the question raised by the progressive reaction to Tara Reade’s accusation against Biden on the one hand, and Education Secretary Betsy DeVos’s new rules for handling sexual-harassment cases on college campuses on the other.

There have been voices on the left who believe Reade, but generally the note has been one of skepticism about her allegation, along with admonitions that the evidence must be considered carefully.

In other words, what any fair-minded person has maintained throughout the #MeToo era, including during the Brett Kavanaugh battle.

NOW WATCH: ‘A Majority of Democratic Voters Under 30 Doubt Biden Can Beat Trump’

The actor/activist Alyssa Milano, an erstwhile vocal advocate of “believe women,” has now modulated her view to accommodate her continued support of Biden. She explains that we need to shift our mindset “to believing women. But that does not mean at the expense of giving men their due process and investigating situations, and it’s got to be fair in both directions.”

This is an unassailable position, and one that obviously has implications for the Title IX debate. Even if it doesn’t entail supporting every particular of DeVos’s reforms, it should mean an openness to them. Nonetheless, late last year Milano slammed DeVos over the proposed changes in highly personal terms.

But her organization has declared war on DeVos’s changes.

An article in Mother Jones reported that anti-sexual-assault activists still supporting Biden have a number of reasons. One of them is “an eagerness to replace Trump’s cabinet, including Education Secretary Betsy DeVos, whose overhaul of campus sexual assault policy has prompted outcry from survivors.”

In other words, Biden gets the benefit of the doubt on Tara Reade explicitly as a means to continue to deny the accused on campus any such benefit of the doubt.

The DeVos rules reverse the single-investigator model that empowered one person to investigate a case and recommend a decision.

Now the investigator and adjudicator must be different. Students must have access to evidence, and the accused must know what is alleged and by whom and when.

There must be a live hearing and an opportunity for cross-examination by both sides.

Title IX coordinators and investigators can’t be biased one way or the other.

These measures are so in keeping with basic American traditions that it’s hard to believe that anyone could oppose them.

The ultimate irony is that Joe Biden was a prime mover behind the Obama-era Title IX rules. As Robby Soave of Reason magazine notes, “If the allegation against Biden were being decided by the kind of adjudication system that he helped enshrine on college campuses, it’s quite likely that he would be found guilty.”

There’s a lesson there, although it’s doubtful anyone — emphatically including Biden himself — is willing to learn it.

Campus Sexual Assault Sexual Harassment Stalking Title IX Victims

Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways

Post author By saveadmin
Post date May 8, 2020

Commentators have previously argued that the draft Title IX regulation would be beneficial to victims and survivors of sexual assault. For example, Professor of Political Theory Meg Mott has highlighted “the substantial powers the new rules grant to survivors.”

Following publication of the final regulation, SAVE conducted a detailed analysis to identify ways the final policy will benefit victims of sexual assault and other offenses. The analysis reveals the new regulation benefits victims in seven broad ways:

Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
Defines the procedures to properly investigate and adjudicate such complaints.
Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint, if desired.
Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints. Owens recounts:

“I have one client who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
“One client was charged for touching a girl on her elbow at a dance because he was trying to move her out of the way of someone else.
“Another of my clients was charged for giving an honest compliment to a friend on her outfit.
“One student was charged for tickling his female friend on her stomach, something they had done to each other previously.
“One student was charged for putting his arm around his girlfriend — nothing more.

“I also have cases where the girlfriend files a charge after the couple gets in a fight or breaks up. But when they get back together, the charge still stands. In such cases, you have a couple who had sexual relations 32 times, but number 28 was rape, according to the charge. All the times before and after that were consensual.”

Specific Beneficial Provisions

The new Title IX regulation contains dozens of provisions that are designed to support the rights sexual assault victims. A summary of these 28 provisions is listed in the order that they appear in the regulation:

§106.8(c) Adoption of grievance procedures:

Complainants will be notified of the grievance process, including how to file a complaint and how the institution is expected to respond.

§106.30 Definitions:

Complainants are assured of protection against “quid pro quo” sexual harassment by faculty and staff.
Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution.
Complainants can include allegations sexual assault, dating violence, domestic violence, and stalking in a formal complaint.

School response:

§106.44(a) General response to sexual harassment:
- Complainants are assured their institution must respond promptly to a formal complaint in a manner that is not deliberately indifferent.
- Complainants must be offered supportive measures (with or without filing a formal complaint) and be explained the process for filing a formal complaint.

106.44(b) Response to a formal complaint:
- Complainants are assured that once a formal complaint is filed, a grievance process that complies with the regulation must be followed.

§106.44(c)(d) Emergency removal:
- Complainants are assured that respondents who are deemed an immediate threat to safety will be removed from campus.

§106.45(b)(1) Basic requirements for grievance process:

- Complainants are assured that all remedies and supportive measures are designed to restore or preserve their access to the institution’s educational program or activity
- Complainants are assured they have the right to see all evidence, and that all relevant evidence will be evaluated.
- Complainants are assured of no conflict of interest or bias among the persons involved with evaluating, investigating or decision-making of the formal complaint, or facilitating an informal resolution, and that all parties involved will be properly trained on the processes and all technology involved.
- Complainants are assured of a reasonably prompt timeframe of the grievance process or informal resolution, which still allows for delays for good cause.

§106.45(b)(5) Investigations of a formal complaint:

- Complainants are not responsible for proving an alleged perpetrator’s responsibility.
- Complainant’s medical and therapy records cannot be used for the grievance process without written consent.
- Complainants are allowed to present fact and expert witnesses and inculpatory evidence.
- Complainants are allowed to discuss the allegation with others – no “gag” rules.
- Complainants may have an advisor of their choice (who may be an attorney), and the advisor may participate in the proceedings.

§106.45(b)(6) Hearings:

Complainants must be allowed to cross-examine the alleged perpetrator, and may challenge the alleged perpetrator’s credibility at a live hearing.
Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf

- Complainants’ sexual predisposition or prior sexual behavior is considered to be not relevant to the allegation, except under specific circumstances.
- Complainants do not need to be in the same room as the alleged perpetrator, and the live hearing may be conducted virtually.

§106.45(b)(7) Determination of responsibility:

- Complainants are assured the decision-maker will be neutral.
- Complainants must receive written documentation of the steps taken in the adjudication process, in the event they choose to file an OCR complaint or lawsuit.

§106.45(b)(8) Appeals:

- Complainants have the right to appeal determinations regarding responsibility or any dismissal of their complaint.
- Complainants are assured the appeal decision-maker has not been previously involved in the case.

§106.45(b)(9) Informal resolution:

- Complainants can seek an informal resolution once a formal complaint has been filed, and can withdraw from the informal resolution process and resume the formal complaint grievance process at any time
§106.45(b)(10) Recordkeeping:
- Complainants have access to all training materials used to train persons involved in the proceedings of a formal complaint.

106.71 Retaliation
- Complainants are protected from retaliation arising from their complaint.

Campus Dating Violence Department of Education Domestic Violence Due Process Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

PR: New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

Post author By saveadmin
Post date May 8, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

WASHINGTON / May 8, 2020 – SAVE is today releasing an analysis that enumerates the many ways by which the newly released Title IX regulation will benefit victims of campus sexual assault. Title IX is the federal law that bans sex discrimination in schools. The new regulation was released on Wednesday by the Department of Education (1).

Titled, “Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways,” the SAVE report identifies seven broad ways that the new federal regulation benefits victims and survivors:

Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
Defines the procedures to properly investigate and adjudicate such complaints.
Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint if desired.
Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints:

A student who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
One client was charged for sexual misconduct for touching a student on her elbow at a dance because he was trying to move her out of the way of another person.
One male student was charged for giving an honest compliment to a friend on her outfit.

The new SAVE document identifies 28 legally enforceable provisions in the new regulation that will benefit and support victims. Three examples of these provisions are: “Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution;” “Complainants are assured that respondents that are deemed an immediate threat to safety will be removed from campus;” and “Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf.”

SAVE has identified numerous cases in which campus disciplinary committees, sometimes derisively referred to as “kangaroo courts,” have shortchanged victims (2). The Independent Women’s Forum argues that “Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.” (3)

There is no evidence that the previous campus policies have succeeded in reducing campus sexual assault. A recent report from the American Association of Universities revealed an actual increase in campus sexual assaults from 2015 to 2019 (4).

The SAVE analysis is available online: http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

Links:

Title IX

Biden vows ’quick end’ to DeVos’ sexual misconduct rule

Post author By saveadmin
Post date May 8, 2020

Biden disavowed Education Secretary Betsy DeVos’ Title IX rule.

Democratic presidential candidate Joe Biden. | Win McNamee/Getty Images

Former Vice President Joe Biden said Wednesday that the Trump administration’s new rule on sexual misconduct in schools aims to “shame and silence survivors,” and vowed to put a “quick end” to it if he becomes the next president.

Biden, the presumptive Democratic nominee, disavowed Education Secretary Betsy DeVos’ Title IX rule, saying it “gives colleges a green light to ignore sexual violence and strip survivors of their rights.”

“Survivors deserve to be treated with dignity and respect, and when they step forward they should be heard, not silenced,” Biden said in a statement. “Today, Betsy DeVos and Donald Trump published a rule that flies in the face of that belief and guarantees that college campuses will be less safe for our nation’s young people.”

The final rule unveiled by DeVos boosts the rights of those accused of sexual misconduct, and the administration says it will improve due process on college campuses and in elementary and high schools. DeVos earlier scrapped Obama administration guidance pushing schools to resolve an epidemic of complaints of sexual assault and harassment.

Biden has been accused of sexual assault by Tara Reade, a former staffer in his Senate office. Reade claims that Biden, then a U.S. senator from Delaware, assaulted her in a Senate hallway in 1993. Reade also has said she filed a complaint then with Capitol personnel.

Biden last week made his first public statement denying the allegations, and said he was not aware of any complaint filed against him. He also called for a records search for Reade’s complaint, and said it should be released if it exists.

More than 20 women have publicly accused President Donald Trump of sexual misconduct over several decades. Last year, journalist E. Jean Carroll accused Trump of raping her in the 1990s inside a dressing room at a department store. He has denied all the allegations made against him.

“Before Tara Reade’s assault accusations, Biden was unwavering in a presumption of guilt for the accused including Brett Kavanaugh,” said Erin Perrine, the Trump Campaign’s principal deputy communications director, in response to Biden’s statement.

“That presumption of guilt included the disastrous Title IX regulations under the Obama-Biden administration, making it more difficult on college campuses for the accused to receive a fair hearing and their due process rights,” she continued. “Does Joe still stand by his presumption of guilt for the accused—or has he set a new standard for himself in the face of his own sexual assault accusations from a former staffer?”

In his statement on the DeVos rule, Biden touted his moves to combat sexual assault on college campuses during the Obama administration, including the guidance issued to respond to misconduct on campus and the launch of the “It’s On Us” campaign.

“Working with survivors and advocates, we helped to bring this violence out of the shadows and required schools change their practices,” Biden said. “Now, Trump’s Education Department — led by Betsy DeVos — is trying to shame and silence survivors, and take away parents’ peace of mind.”

“It’s wrong,” he continued. “And, it will be put to a quick end in January 2021, because as President, I’ll be right where I always have been throughout my career — on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld.”

Title IX

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

Post author By saveadmin
Post date May 7, 2020

(Screenshot via Youtube)

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

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

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

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

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

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

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

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

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

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

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

ROBBY SOAVE is a senior editor at Reason.

Title IX

A Victory for Campus Justice. The Education Department’s new Title IX rule will make university kangaroo courts a thing of the past.

Post author By saveadmin
Post date May 7, 2020

With accusations of sexual misconduct front and center for the second presidential election in a row, it may be hard to believe that the U.S. is making progress on this serious issue. But on Wednesday, the Education Department brought Americans a step closer to having such allegations tried more thoroughly and fairly—at least on college campuses.

More than a year after issuing a draft rule, the department released final regulations on how colleges and universities must treat students involved in disciplinary procedures under Title IX, the federal law that bans sex discrimination—and has been interpreted to include sexual misconduct—in federally funded education programs. Institutions will finally have to guarantee due process for students caught up in campus kangaroo courts.

Consider the presumption of innocence. The most recent survey of due process protections at U.S. News’s top 53 national universities by the Foundation for Individual Rights in Education determined that 72% of them—including Georgetown and Caltech—didn’t explicitly tell accused students that they are presumed innocent until proven guilty. The new rules will correct this abuse.

Current law requires campuses to investigate even felony-level sex crimes like rape and sexual assault; they may not simply be turned over to police and courts. Yet university investigations and hearings under Title IX lack thoroughness and impartiality. Students struggle to navigate proceedings without the rights to receive written notice of the exact charges, to see all relevant evidence (including exculpatory evidence), to cross-examine accusers and witnesses through a lawyer or other adviser of one’s choosing, and even to a live hearing.

None of these protections are unusual off campus. All are routinely denied on campus. More than 40% of top colleges don’t even specify that their equivalents of judges and juries must be impartial. This madness will end when the rules take effect.

Crucially, the department relies on the Supreme Court’s standard from Davis v. Monroe County Board of Education (1999) to advance a fair definition of student-on-student sexual harassment: “Unwelcome conduct [on the basis of sex] determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” This is a substantial improvement over the current patchwork of rules, which invite censorship of speech or behavior that is both constitutionally protected and not harassment. In Title IX’s name, colleges over the years have banned what they characterize as “derogatory cartoons,” “innuendo” and “sexually suggestive statues.” Students and professors’ political, academic and artistic speech deserves protection.

These new, much-needed rules have encountered bitter opposition from those most invested in the current system: college administrators and activist groups. University lobbyists have cited the Covid-19 pandemic as a reason to delay policy changes, but they’ve had nearly 18 months to prepare since Education Secretary Betsy DeVos opened the proposed Title IX rule to public comment. A Tulane University Title IX coordinator’s Instagram video provides insight into a behind-the-scenes effort to influence the regulations; evidently a “delay strategy” of endlessly requesting meetings with regulators was responsible for having “pushed that date back.” And the fight continues: On Wednesday, the National Women’s Law Center tweeted that it’s “preparing to sue the Department of Education” to stop the rules from taking effect.

These vested interests can’t distract from a broader reality: From liberal Harvard law professors to social conservatives, many agree that the current Title IX system on campus is profoundly broken. The Education Department’s moves reflect an existing consensus that fairer procedures are necessary.

Joe Biden—who needs voters to extend the presumption of innocence to him—is unfortunately on the wrong side of this issue. Long a leading proponent of stricter Title IX enforcement, he has promised to restore the Education Department’s infamous 2011 “Dear Colleague” letter, which Mrs. DeVos withdrew in September 2017. That letter’s unlawful mandates, sprung on colleges without the legally required notice and comment, kicked off the current era of abusive enforcement. It also invited tuition-bloating absurdities like Harvard’s 50 Title IX coordinators and Northwestern’s monthslong investigation of a professor for allegedly violating Title IX by criticizing Northwestern’s Title IX policy.

Barring courtroom shenanigans or noncompliance on the part of universities, students will soon benefit from a considerably fairer system of campus justice. Yet political winds are always shifting, and there is little doubt that campus authoritarians, given a chance, will revive the kangaroo courts that let them exercise unaccountable power over students’ lives. One can only hope that—should he take office in January—a chastened Mr. Biden will rethink his stance on this issue.

Mr. Shibley is executive director of the Foundation for Individual Rights in Education.

Campus Sexual Assault Title IX

Does Due Process Silence Survivors?

Post author By saveadmin
Post date May 7, 2020

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

How exactly does due process silence anyone?

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

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

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

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

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

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

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

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

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

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

These new rules help to do that.

So tell me again how they silence survivors?

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