Month: September 2020

Categories
Campus Sexual Assault Sexual Harassment Title IX

For College Students, Due Process Is on the Ballot

The new Department of Education Title IX regulation implementing much-needed reforms for sexual harassment and misconduct on college campuses is barely a month old, but could already see a short lifespan. Democratic presidential nominee Joe Biden has vowed a “quick end” to the reforms if elected, stating that they “give colleges a green light to ignore sexual violence and strip survivors of their rights.”

A return to the wild West form of justice on college campuses would be a travesty. For nearly 10 years, hundreds of students and faculty have been subjected to unfair campus disciplinary hearings. Since 2011, when the controversial “Dear Colleague Letter” on sexual violence was released, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with “expulsion” or “suspension,” and countless professors have been fired or censured. There is no limit to the trauma and emotional abuse these persons have experienced.

Instead of referring allegations of criminal sexual assault to local police, campus disciplinary committees were told to handle these cases. It was an experiment that went terribly wrong. Survivors were betrayed by complacent administrators; the accused were disenfranchised of their due process rights; and faculty members were silenced by overly broad definitions of sexual harassment. All of this came at a cost of many millions of dollars. The Department of Education reported that following release of the “Dear Colleague Letter” as the guiding principal for Title IX cases, the number of complaints to the Office of Civil Rights increased nearly five-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). More than 150 lawsuits filed against universities over Title IX proceedings have ruled in favor of the accused students.

A “Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus” was signed by more than 260 higher education faculty members from 43 states, representing a broad range of disciplinary backgrounds and political persuasions. The resolution concluded with an urgent appeal: “The undersigned professors call on lawmakers and university administrators to assure the prompt implementation of new policies that will clarify grievance procedures, enhance free speech, and embrace fairness for all.”

The Department of Education took these accounts and over 124,000 public comments into consideration while drafting the new rule that defines the responsibilities of institutions to respond to allegations of sexual harassment, including sexual assault, under Title IX.
 It clearly defines sexual harassment, restores due process to the accused, and protects survivors during every step of the process.

Most schools, including Amherst College and the University of Colorado-Boulder, have embraced the changes and have responded swiftly to comply with the federal regulation’s posting requirement. The University of Vermont even posted a YouTube video of the training program its staff attended.

Liberals and conservatives both agree the old system is broken and that protections for victims and due process for the accused go hand in hand. The late Supreme Court Justice Ruth Bader Ginsburg eloquently described this in a 2018 interview with the president and CEO of the National Constitution Center. “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” Ginsburg said. “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

The new Title IX regulation from the Department of Education may not be perfect, but it does provide a roadmap to begin to repair our broken campus kangaroo courts. Vice President Biden should understand that we need national standards that are fair to all students. That is the only way to ensure justice for survivors and due process for the accused.

Ed Bartlett is president of SAVE, an organization founded in 2008 to help lead the national policy movement for fairness and due process on campus, at www.saveservices.org.

https://www.realclearpolitics.com/articles/2020/09/27/for_college_students_due_process_is_on_the_ballot_144310.html

Categories
Civil Rights Department of Education Department of Justice Due Process False Allegations Investigations Legal Office for Civil Rights Sexual Assault Title IX

Ruth Bader Ginsburg Agreed With Amy Coney Barrett That Campus Kangaroo Courts Were a Problem

Federal appeals court Judge Amy Coney Barrett and the late Supreme Court Justice Ruth Bader Ginsburg agreed Title IX code of conduct trials were flawed.

Wednesday, September 23, 2020

by Jon Miltimore

In 2018, following the nomination of Brett M. Kavanaugh to the Supreme Court, President Trump tipped his hand about who he’d be inclined to choose if given the opportunity to fill another vacancy on the high court.

That person, the New York Times observed, was Judge Amy Coney Barrett, a conservative law professor whom Trump tapped for a federal appeals court in 2017.

A week ago, it appeared the chances of Trump filling another Court vacancy in his first term were slim. However, the death of Supreme Court Justice Ruth Bader Ginsburg, who died September 18 during her 27th year on the high court just six weeks before the presidential election, means Trump will get the opportunity to send another nomination to the Republican-controlled Senate.

Some sources claim Barrett still has the edge to win the nomination, though Cuban-American federal appellate judge Barbara Lagoa is also generating buzz.

As the Brett Kavanaugh nomination and previous hearings have shown, Supreme Court battles can be nasty, even nastier than typical political battles. There’s little reason to expect the filling of Ginsburg’s seat to be any different—even if it wasn’t coming just weeks before a presidential election—so it’s no surprise to see that news media are already dissecting Barrett’s court opinions.

Just 48 hours after Ginsburg’s death, the Washington Post ran an article on Barrett’s opinion in Doe v. Purdue University, a Title IX—the rule prohibiting sex-discrimination in public education —case involving a Purdue student (John Doe) who was suspended by the university after being accused of sexual assault by a former girlfriend (Jane Doe).

According to John Doe, as described by a court summary of the case, the couple met in Purdue’s Navy ROTC program and started dating in the fall of 2015. They soon began a sexual relationship. In December, Jane attempted to take her own life in front of John. He reported the attempt to the school, and the couple ceased dating.

“A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent,” the Washington Post reports. “Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.”

These are serious charges that demand a serious appraisal of the facts and due process. But like plaintiffs in Title IX cases—some 600 lawsuits have been filed against universities since Barack Obama’s Education Department issued its “Dear Colleague” letter to schools warning them they’d lose federal funding if they didn’t prioritize complaints of sexual assault—John Doe encountered something else.

Court documents show the hearing resembled a show trial, including a false confession, that resulted in a year-long suspension of John Doe that cost him a spot in the ROTC program.

“Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations,” the Post reports. “Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.”

All of this fits the pattern of the kangaroo courts universities established after the Dear Colleague letter. As Reason has spent the last several years documenting, these cases tend to presume individuals guilty until proven innocent, while depriving them of the due process necessary to prove their innocence.

Barrett is hardly alone in her jurisprudence regarding the importance of due process. As the Post concedes, campus kangaroo courts were widely criticized by civil libertarians across the political divide.

“Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Nancy Gertner, a Harvard Law School professor and retired federal judge appointed by President Clinton.

It was these concerns that prompted US Secretary of Education Betsy DeVos to issue new rules to Title IX hearings in April that strengthened the rights of those accused of sexual misconduct, including the right to cross-examine accusers and preventing investigators from also serving as case judges. (Former Vice President Joe Biden has said he’d reverse Devos’s ruling if elected president, which prompted some to point out that Biden, who like the current president stands accused of sexual assault, would be guilty under the current standard.)

Few would argue that protecting the rights of sexual assault victims is important, but it’s worth noting that among the critics of the previous standard was Ruth Bader Ginsburg.

The Post admits the “feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine” when she said many of the criticisms of college codes were legitimate.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” Ginsburg said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg is correct that due process and a fair hearing for the accused are fundamental principles of the American system. Yet hundreds of individuals who believe they were denied fair hearings and are seeking redress from universities have found the path difficult due to legal technicalities.

Plaintiffs tend to claim their rights were violated in two ways: 1) the unveristiy violated the plaintiff’s right to due process; 2) the school discriminated against the plaintiff on the basis of sex, violating Title IX.

Prior to Purdue vs. Doe, the Post reports, courts often upheld accused student claims of due process violations “but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.” Essentially, plaintiffs had to prove not just that their due process rights were violated, but that they were violated on the basis of their sex.

Barrett’s ruling, however, was instrumental in lowering the burden of proof plaintiffs had to show.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in her opinion, citing the political pressure the Obama administration had put on schools to address sexual assault.

Barrett’s opinion was adopted by other courts, and it was this reasoning that caused women’s rights groups to criticize the appellate judge.

Emily Martin of the National Women’s Law Center bristled at the idea of “replacing [Ginsburg] with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

We’ll never know if Ginsburg would have believed it was plausible to assume that sex played a role in the university show trials that allowed hundreds of people accused of sex crimes to be found guilty without due process or a fair hearing.

What we do know is that on the broader issue of campus kangaroo courts, Ginsburg and Barrett found common ground.

“We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally,” Ginsburg told The Atlantic in 2018.

Indeed. It was for this reason that America’s founders carved out specific protections for the principle, declaring in the Fifth Amendment that no person shall “be deprived of life, liberty, or property, without due process of law… .”

Universities have long been able to deny due process to students accused of sexual crimes, because the allegations against them are not criminal charges. This is a grave injustice.

Accusing individuals of heinous sexual misconduct is a serious matter. A verdict of guilt will be carried with students for the rest of their lives and has the potential to impact their career and future earnings, not to mention their reputation. Such matters are far too serious to withhold from the accused fundamental tenets of our system designed to ensure justice and fairness.

Justice Ginsburg and Judge Barrett might have had starkly different constitutional views, but on this basic idea of justice they found common ground.

Jonathan Miltimore is the Managing Editor of FEE.org. His writing/reporting has been the subject of articles in TIME magazine, The Wall Street Journal, CNN, Forbes, Fox News, and the Star Tribune.

https://fee.org/articles/ruth-bader-ginsburg-agreed-with-amy-coney-barrett-that-campus-kangaroo-courts-were-a-problem/

Categories
Executive Order Law & Justice Race Sex Stereotyping

Executive Order on Combating Race and Sex Stereotyping

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in Federal contracting, to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping and scapegoating, it is hereby ordered as follows:

Section 1. Purpose. From the battlefield of Gettysburg to the bus boycott in Montgomery and the Selma-to-Montgomery marches, heroic Americans have valiantly risked their lives to ensure that their children would grow up in a Nation living out its creed, expressed in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” It was this belief in the inherent equality of every individual that inspired the Founding generation to risk their lives, their fortunes, and their sacred honor to establish a new Nation, unique among the countries of the world. President Abraham Lincoln understood that this belief is “the electric cord” that “links the hearts of patriotic and liberty-loving” people, no matter their race or country of origin. It is the belief that inspired the heroic black soldiers of the 54th Massachusetts Infantry Regiment to defend that same Union at great cost in the Civil War. And it is what inspired Dr. Martin Luther King, Jr., to dream that his children would one day “not be judged by the color of their skin but by the content of their character.”

Thanks to the courage and sacrifice of our forebears, America has made significant progress toward realization of our national creed, particularly in the 57 years since Dr. King shared his dream with the country.

Today, however, many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

This destructive ideology is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government “was made on the white basis” “by white men, for the benefit of white men.” Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights. They are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.

Unfortunately, this malign ideology is now migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors. For example, the Department of the Treasury recently held a seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and that instructed small group leaders to encourage employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.”

Training materials from Argonne National Laboratories, a Federal entity, stated that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the “meritocracy” as “actions of bias.”

Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.

A Smithsonian Institution museum graphic recently claimed that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” The museum also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”

All of this is contrary to the fundamental premises underpinning our Republic: that all individuals are created equal and should be allowed an equal opportunity under the law to pursue happiness and prosper based on individual merit.

Executive departments and agencies (agencies), our Uniformed Services, Federal contractors, and Federal grant recipients should, of course, continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics. Training employees to create an inclusive workplace is appropriate and beneficial. The Federal Government is, and must always be, committed to the fair and equal treatment of all individuals before the law.

But training like that discussed above perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint. Such ideas may be fashionable in the academy, but they have no place in programs and activities supported by Federal taxpayer dollars. Research also suggests that blame-focused diversity training reinforces biases and decreases opportunities for minorities.

Our Federal civil service system is based on merit principles. These principles, codified at 5 U.S.C. 2301, call for all employees to “receive fair and equitable treatment in all aspects of personnel management without regard to” race or sex “and with proper regard for their . . . constitutional rights.” Instructing Federal employees that treating individuals on the basis of individual merit is racist or sexist directly undermines our Merit System Principles and impairs the efficiency of the Federal service. Similarly, our Uniformed Services should not teach our heroic men and women in uniform the lie that the country for which they are willing to die is fundamentally racist. Such teachings could directly threaten the cohesion and effectiveness of our Uniformed Services.

Such activities also promote division and inefficiency when carried out by Federal contractors. The Federal Government has long prohibited Federal contractors from engaging in race or sex discrimination and required contractors to take affirmative action to ensure that such discrimination does not occur. The participation of contractors’ employees in training that promotes race or sex stereotyping or scapegoating similarly undermines efficiency in Federal contracting. Such requirements promote divisiveness in the workplace and distract from the pursuit of excellence and collaborative achievements in public administration.

Therefore, it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.

Sec. 2. Definitions. For the purposes of this order, the phrase:

(a) “Divisive concepts” means the concepts that (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

(b) “Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.

(c) “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

(d) “Senior political appointee” means an individual appointed by the President, or a non-career member of the Senior Executive Service (or agency-equivalent system).

Sec. 3. Requirements for the United States Uniformed Services. The United States Uniformed Services, including the United States Armed Forces, shall not teach, instruct, or train any member of the United States Uniformed Services, whether serving on active duty, serving on reserve duty, attending a military service academy, or attending courses conducted by a military department pursuant to a Reserve Officer Corps Training program, to believe any of the divisive concepts set forth in section 2(a) of this order. No member of the United States Uniformed Services shall face any penalty or discrimination on account of his or her refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to these concepts.

Sec. 4. Requirements for Government Contractors. (a) Except in contracts exempted in the manner provided by section 204 of Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), as amended, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

“During the performance of this contract, the contractor agrees as follows:

1. The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

2. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

3. In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.

4. The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”

(b) The Department of Labor is directed, through the Office of Federal Contract Compliance Programs (OFCCP), to establish a hotline and investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders. The Department shall take appropriate enforcement action and provide remedial relief, as appropriate.

(c) Within 30 days of the date of this order, the Director of OFCCP shall publish in the Federal Register a request for information seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

Sec. 5. Requirements for Federal Grants. The heads of all agencies shall review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. Within 60 days of the date of this order, the heads of agencies shall each submit a report to the Director of the Office of Management and Budget (OMB) that lists all grant programs so identified.

Sec. 6. Requirements for Agencies. (a) The fair and equal treatment of individuals is an inviolable principle that must be maintained in the Federal workplace. Agencies should continue all training that will foster a workplace that is respectful of all employees. Accordingly:

(i) The head of each agency shall use his or her authority under 5 U.S.C. 301, 302, and 4103 to ensure that the agency, agency employees while on duty status, and any contractors hired by the agency to provide training, workshops, forums, or similar programming (for purposes of this section, “training”) to agency employees do not teach, advocate, act upon, or promote in any training to agency employees any of the divisive concepts listed in section 2(a) of this order. Agencies may consult with the Office of Personnel Management (OPM), pursuant to 5 U.S.C. 4116, in carrying out this provision; and
(ii) Agency diversity and inclusion efforts shall, first and foremost, encourage agency employees not to judge each other by their color, race, ethnicity, sex, or any other characteristic protected by Federal law.

(b) The Director of OPM shall propose regulations providing that agency officials with supervisory authority over a supervisor or an employee with responsibility for promoting diversity and inclusion, if such supervisor or employee either authorizes or approves training that promotes the divisive concepts set forth in section 2(a) of this order, shall take appropriate steps to pursue a performance-based adverse action proceeding against such supervisor or employee under chapter 43 or 75 of title 5, United States Code.

(c) Each agency head shall:

(i) issue an order incorporating the requirements of this order into agency operations, including by making compliance with this order a provision in all agency contracts for diversity training;

(ii) request that the agency inspector general thoroughly review and assess by the end of the calendar year, and not less than annually thereafter, agency compliance with the requirements of this order in the form of a report submitted to OMB; and

(iii) assign at least one senior political appointee responsibility for ensuring compliance with the requirements of this order.

Sec. 7. OMB and OPM Review of Agency Training. (a) Consistent with OPM’s authority under 5 U.S.C. 4115-4118, all training programs for agency employees relating to diversity or inclusion shall, before being used, be reviewed by OPM for compliance with the requirements of section 6 of this order.

(b) If a contractor provides a training for agency employees relating to diversity or inclusion that teaches, advocates, or promotes the divisive concepts set forth in section 2(a) of this order, and such action is in violation of the applicable contract, the agency that contracted for such training shall evaluate whether to pursue debarment of that contractor, consistent with applicable law and regulations, and in consultation with the Interagency Suspension and Debarment Committee.

(c) Within 90 days of the date of this order, each agency shall report to OMB all spending in Fiscal Year 2020 on Federal employee training programs relating to diversity or inclusion, whether conducted internally or by contractors. Such report shall, in addition to providing aggregate totals, delineate awards to each individual contractor.

(d) The Directors of OMB and OPM may jointly issue guidance and directives pertaining to agency obligations under, and ensuring compliance with, this order.

Sec. 8. Title VII Guidance. The Attorney General should continue to assess the extent to which workplace training that teaches the divisive concepts set forth in section 2(a) of this order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. If appropriate, the Attorney General and the Equal Employment Opportunity Commission shall issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.

Sec. 9. Effective Date. This order is effective immediately, except that the requirements of section 4 of this order shall apply to contracts entered into 60 days after the date of this order.

Sec. 10. General Provisions. (a) This order does not prevent agencies, the United States Uniformed Services, or contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.

(b) Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.

(c) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

(d) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(e) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,
September 22, 2020.

https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/

Categories
Department of Education Department of Justice Investigations Legal Office for Civil Rights Sexual Assault Title IX

Amy Coney Barrett, potential Supreme Court nominee, wrote influential ruling on campus sexual assault

Amy Coney Barrett, a leading contender for the Supreme Court seat held by the late Ruth Bader Ginsburg, wrote an influential appellate decision last year that made it easier for students accused of sexual assault to challenge universities’ handling of their cases.

Barrett led a three-woman panel of judges that said Purdue University may have discriminated against a male student accused of sexual assault when it suspended him for a year, a punishment that cost him his spot in the Navy ROTC program.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in the case, in which the accuser was identified as Jane Doe and the accused as John Doe.

On Saturday, President Trump said he would nominate a woman in the next week to fill Ginsburg’s seat. In a call with Senate Majority Leader Mitch McConnell (R-Ky.), Trump mentioned Barrett and Barbara Lagoa, a judge on the U.S. Court of Appeals for the 11th Circuit, according to people familiar with the matter.

In siding with John Doe, Barrett was in line with the majority of rulings in this area of the law since 2011, when former president Barack Obama’s Education Department warned schools that they risked losing federal funding if they did not adequately prioritize sexual assault complaints.

About 600 lawsuits have been filed challenging decisions in campus sexual assault cases since 2011, of which about 30 have gone to federal appeals courts, said K.C. Johnson, a Brooklyn College and CUNY Graduate Center history professor who tracks these cases. The decision Barrett wrote for the U.S. Court of Appeals for the 7th Circuit in John Doe v. Purdue University is the “single most consequential ruling in this area,” he said, because it set a fair, simplified standard that has been adopted by three other circuit courts, covering 22 states, as well as the federal district court in D.C.

“This case was a trendsetter,” said Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, which bars sex discrimination by institutions receiving federal funding. Sokolow, who also serves as president of ATIXA, an association of Title IX administrators, called the opinion “revolutionary” and said it would make it easier for accused students to bring civil litigation against universities to a jury trial.

The lawsuits brought by male students accused of sexual assault generally argue that universities denied their due process rights, or discriminated against them on the basis of sex in violation of Title IX, or both. In many decisions before the Purdue case, Sokolow said, courts upheld accused students’ due process claims but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.

By contrast, the 7th Circuit did not bother with those legal tests and upheld John Doe’s Title IX claim using a simple, streamlined analysis: Was it plausible that the university had been biased against him because he was a man? Yes, Barrett and her colleagues decided, allowing John Doe to continue to press his case by sending it back to the trial court.

John and Jane were students in Purdue’s Navy ROTC program when they began dating in the fall of 2015, according to a summary of the case in the court ruling that relied on John Doe’s presentation of the facts. They had consensual sexual intercourse numerous times. In December, Jane attempted suicide in front of John. He reported her suicide attempt to the university, and they stopped dating.

A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent. Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.

Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations. Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.

That group had posted on its Facebook page a Washington Post column headlined: “Alcohol isn’t the cause of campus sexual assault. Men are.” The university panel did not allow John to present witnesses, including a roommate of his who disputed Jane’s account. And two of the three members of the panel admitted they had not read the investigative report.

“Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension,” Barrett wrote in a decision released nine months after the case was argued.

The Supreme Court has not ruled on a Title IX campus sexual assault case in the past decade, experts said. But Ginsburg, a feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine in which she was asked about due process for those accused of sexual harassment.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” she said. “Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg added that she thought some of those criticisms of college codes were valid.

Critics of the Obama-era guidance, which was rescinded by the Trump administration in 2017, said it set a standard that made it too easy for school officials to discipline students for alleged sexual misconduct. Advocates for sexual assault victims said the guidance was a necessary step toward addressing colleges’ long-standing neglect of victims’ rights.

In the Purdue opinion, Barrett wrote that John Doe’s allegations of gender discrimination were plausible in part because of the pressure that the Obama administration applied to schools and universities to confront sexual harassment and assault.

“The Department of Education made clear that it took the letter and its enforcement very seriously,” Barrett wrote, referring to the 2011 letter that relayed the Obama administration guidance to universities.

The Obama education department opened two investigations into Purdue in 2016, Barrett noted, so “the pressure on the university to demonstrate compliance was far from abstract.”

Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, said she is troubled by the suggestion that the Department of Education taking sexual misconduct seriously — and pressuring schools to do the same — could be construed as evidence of bias against men. Praising Ginsburg’s legacy of fighting for women’s rights, Martin bristled at the prospect of “replacing someone like that with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

Martin said that many of the university’s actions as described by John Doe would not have been permitted under the Obama-era guidance. As is typical in such cases, the court considered the facts as alleged by John Doe in deciding whether to grant the university’s motion to dismiss his lawsuit.

Nancy Gertner, a retired federal judge and Harvard Law School professor, said she agreed with Martin’s criticism. But she added that many judges have been concerned about the way universities have handled students accused of sexual assault. “Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Gertner, who was appointed to the bench by former president Clinton.

Education Secretary Betsy DeVos issued new Title IX regulations that expanded the rights of the accused and went into effect last month. The regulations require schools to handle sexual harassment and assault allegations differently than they handle any other kind of student misconduct case, Martin said. The new rules require a live hearing with cross-examination of the accuser, unlike in cases of alleged racial harassment, Martin said, “based on the really toxic idea that women and girls are particularly likely to lie about sexual misconduct.”

Supporters of the DeVos rules say that the stakes are so high in sexual-misconduct cases that cross-examination is appropriate and necessary to ferret out the truth when students’ accounts are at odds.

To win his Title IX claim before a jury, John Doe would still have to prove that he was discriminated against on the basis of his sex. His case is pending in district court. In June, Purdue filed a counterclaim asking the court to declare that Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

“The university is seeking a declaratory judgment that John Doe violated Purdue’s policies based on evidence in the record, which the 7th Circuit was not able to consider for procedural reasons at the time of its ruling,” university spokesman Tim Doty said.

Andrew Miltenberg, a New York lawyer who represents John Doe and has represented many accused students in successful lawsuits against their schools, described Barrett’s decision as the “crescendo” of a gradual movement in the courts toward accepting the idea that gender bias against men can shape universities’ handling of sexual assault complaints.

“There are many judges that have talked about the process or procedures being unfair,” he said. “There haven’t been many judges that have come out and said, ‘Hey, it seems to me that gender could have really played a role here.’ ”

https://www.washingtonpost.com/investigations/amy-coney-barrett-potential-supreme-court-nominee-wrote-influential-ruling-on-campus-sexual-assault/2020/09/20/843e964e-fb52-11ea-830c-a160b331ca62_story.html?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most

Categories
Campus Legal Sexual Assault Title IX

University suspended black student for a year because drunk white girl kissed him: lawsuit

She told three different stories – and the last one can be falsified

Long Island University punished a black student for sexual assault despite his white accuser’s constantly changing story and several witnesses who either contradicted or couldn’t corroborate her claims, according to a lawsuit filed last week against the private university in Brookville, New York.

“John Doe” accused LIU of Title IX and Title VI violations, saying “gender bias was a motivating factor” in the “erroneous outcome” of his proceeding and racial bias explains the “differential treatment” he received compared to “Jane Roe.”

The university also violated his due process rights under New York law and committed breach of contract, including by failing to use the “preponderance of evidence” standard outlined in its disciplinary code, the suit claims.

Jane had drunkenly kissed John, “an active and well-respected member of his church,” without his affirmative consent “in front of many witnesses” in a dorm room. (As a football player on LIU’s team, John had also resolved not to drink during the season.) Later that night she panicked that her public behavior could harm her “committed relationship” with another man.

The next day she filed a complaint against John, claiming that the night before he had forced her to perform oral sex on him. He also “pulled” her into another room where he held her down and continued kissing her, Jane claimed. In the final version of her story, she made a factual assertion that could be vetted: John assaulted her behind a “wall” of dressers in the room, which is furnished by LIU.

Despite the fact that Jane’s story held no water with witnesses and she was never alone with John, LIU found her more credible in a “deficient and hasty investigation.” Having found him guilty of sexual assault, the university then inexplicably invited John to reapply to LIU for the next fall semester, the suit says.

That invitation may have been a ruse: John would learn from his coach several months later that the guilty finding had nullified his full-ride athletic scholarship, which “effectively expelled” him from LIU.

Title IX Coordinator Jean Anne Smith (below), also associate dean of students, wore several mutually exclusive hats in the proceeding, the suit claims. She represented herself to both John and Jane as each student’s “advocate,” investigated the allegations, judged John guilty and then picked his sanctions.

Smith and the other investigator, Nicole Thomas, repeatedly withheld information from John, including his right to present witnesses, he argues. Their own interviews with witnesses were “cursory and brief,” ignoring “key inconsistencies and contradictions.”

They also gave no reason for siding with Jane’s story over John’s – that she initiated nonconsensual contact with the kiss – and didn’t even let him hear her testimony, much less cross-examine witnesses, the suit claims. John says neither LIU nor Jane ever reported her allegations to police.

Rights limited to ‘reporting individuals’ – not those accused

LIU’s bias is institutionalized in its Sexual Violence and Harassment Policy’s Students’ Bill of Rights, which “shockingly” limits protections to only “reporting individuals” – those who allege violations, according to the suit.

This is despite the policy’s explicit promise of several rights for “all” students, including the presumption of innocence for accused students, “right to make an impact statement” on the cusp of sanctions and “equal opportunity” to present witnesses and evidence. John claims he was afforded none of these.

The policy does, however, reflect New York’s affirmative consent law: “both evince a surface-level refusal to recognize uniform rights for the accuser and the accused.” Signed into law by Gov. Andrew Cuomo, the statute has an “inherent bias” because it requires colleges to predetermine that any accuser “is at fault … or should have acted in a different manner to avoid” violations that have not been proven, John says.

Jane twice offered John drinks that he declined over the course of the night of Sept. 2, 2017, which started at the party and then moved into a dorm room. He says he didn’t know who she was until he learned she had accused him of sexual assault.

She “unexpectedly kissed” him for “a few seconds” even though he told her he had a girlfriend. Later, when he stopped to say hello to his football team captain on the way home, John saw Jane in that room as well, but she “appeared dramatically more intoxicated” than when she had kissed him.

He rushed back from his own dorm after a teammate called to say Jane was telling people he had “forced himself” on her. His own teammates – all white – were too drunk to tell him what she was saying, and no one else he recognized from the party knew who had accused him, or of what, according to the suit.

‘Objectively’ false claim about room configuration hiding the assault

Public safety officers told him the next day he had to leave campus immediately, having been accused of sexual assault. He was not told at the investigation’s outset that Jane had accused him of forcible oral sex and “dragg[ing]” her into her room, where Jane’s roommate allegedly pulled him off her.

Not only was the date of the incident wrong in the report, but it included no “single factual allegation” or specific code violation, he says, alleging it violated New York law.

Smith, the Title IX coordinator, was “masquerading” as John’s advocate when investigator Thomas interviewed him, before he knew Jane’s allegations or that Smith was also representing Jane. Neither told him he could pick his own advisor, conveyed “the significance of an advisor in the context of a Title IX investigation” or told him his other rights, the suit says.

By John’s count, Smith had “surreptitiously assum[ed]” four “conflicting simultaneous roles” – advisor to John and Jane, Title IX investigator and “sole party responsible” for adjudicating Jane’s complaint. He characterized the Sept. 5 interview as “unlawful.”

John never did get notice that the university was deliberating sanctions against him, with Smith telling John’s mother in a phone call Sept. 11 that she was going to “represent” him in “the best light possible” so he could return to school, he claims. He never received evidence either.

The guilty finding and one-year suspension did not describe the evidence or “the rationale underpinning the determination.” It wasn’t until he had asked for them several times that the university finally gave him a “one-paragraph response letter” more than a month later.

It vaguely and falsely claimed that the investigation had corroborated Jane’s story “in important respects” through “other evidence,” while John’s account “was inconsistent” with evidence, the suit claims.

This is despite the fact that she accused him of forcing her to perform “oral sex in a well-lit room in the presence of many people,” none of which was corroborated, “and the room objectively did not have dressers in the middle” that obscured the alleged assault “a few feet away” from others, as Jane claimed in her third account of the night.

Chose to ‘railroad a young Black man with no history of misconduct’

Jane’s friends also contradicted her story about being “dragged” down the hallway by John, saying they were walking “one-behind-the-other,” and her roommate denied he was on top of Jane in their room. “Roe’s claims remain completely unsubstantiated to this day”:

This decision was obviously contrary to the preponderance of evidence standard and demonstrated a dramatic bias in favor of the female accuser, even when that accuser’s claims constituted facially-implausible allegations that she had been subjected to two separate and consecutive instances of public sexual assault in front of dozens of peers and somehow none of those witnesses saw any of it happen.

LIU’s treatment of John versus Jane is so disparate as to suggest “strong” sex- and race-based bias in the proceeding, from flipping the burden of proof on him to yanking his scholarship without notice, he claims. It also failed to give a rationale when it rejected his appeal, “doubl[ing]-down on their choice to railroad a young Black man with no history of misconduct on a full scholarship to their institution.”

He and Jane were “similarly situated” parties because each accused the other of initiating sexual contact without affirmative consent, meaning both should be “equally credited” as alleged violations LIU policy. The university showed its “pattern or practice of racial bias” against John by claiming it could find no “negative motivat[ion]” for Jane to accuse him, despite her observed panic that the public kiss could harm her other relationship.

John’s racial bias claim also extends to LIU’s treatment of a white teammate who assaulted his girlfriend the same week Jane accused John. The university did not put the teammate through the same ordeal as John’s, instead holding “a meeting with their athletic teams about sexual assault.”

https://www.thecollegefix.com/believe-the-survivor-heres-11-times-young-black-men-were-railroaded-by-campus-sexual-assault-claims/
Categories
Campus Sexual Assault Sexual Harassment Title IX

Dual Track Adjudications: Recipe for Legal Disaster

One month has now passed since the new Title IX regulation took effect on August 14, 2020.[1] According to this historic civil rights regulation, schools receiving federal funding must now provide students with, among other procedural protections, live hearings and the opportunity for real-time cross examination through an advisor. The Office for Civil Rights (OCR) has stated that the regulation only will be enforced as to conduct that occurs after the effective date,[2] and that schools are free to handle “non-Title IX” misconduct on their own terms.[3]

Some schools, as discussed by Teresa Manning at National Review, “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.”[4] Princeton and Tulane, for example, have created multiple disciplinary tracks where the regulation’s procedural protections are afforded for some types of sexual misconduct but not for others.[5] This is an attempt to defy the regulatory intent to restore due process protections on campus.

Unfortunately for these recalcitrant universities, there is another branch of government that vigorously enforces due process rights: the judiciary. Students often go to court if they believe they have been victims of Title IX discrimination, due process violations, or breach of contract. (Private universities are not subject to the Due Process Clause as they are not arms of the state. In many jurisdictions, however, the student handbook or code of conduct is a contract between the university and the student, and private universities can be sued for violating the procedures in those contracts.)

In these lawsuits, OCR’s limited regulatory definition of what is and what is not “Title IX Conduct” simply does not apply. Rather, schools are held liable if they discriminate “on the basis of sex.”[6] Indeed, whether the court uses the Yusuf framework of “erroneous outcome” and “selective enforcement,”[7] or the Purdue “plausible inference” standard to evaluate the allegation at the motion to dismiss stage, the fundamental question is whether the university discriminated on the basis of sex, not in which artificial “track” the discrimination occurred.

To this end, universities need to consider a string of milestone federal circuit court decisions issued in the last several months that were favorable to accused students.

First, the Third,[8] Eighth,[9] and Ninth[10] Circuits have now adopted the Seventh Circuit’s Purdue plausible inference pleading standard, which means that in four of the 12 regional circuits across the country, accused students now have a much easier time suing for Title IX discrimination. This is a dramatic change in the law; this easier standard did not even exist as of June 2019. Now, roughly a third of the nation’s federal courts have adopted it.

Second, the Sixth Circuit in Oberlin was the first circuit court to hold that the outcome of a disciplinary proceeding itself can be used as evidence of discrimination for purposes of Title IX.[11] This means that for the vast majority of students that do not have direct evidence of discrimination pre-discovery (because the university typically wants to keep its email communications secret), students in the Sixth Circuit can use their adverse outcome as a way to get to the discovery phase, allowing access to internal university communications, provided that the student is able to cast “grave doubt” upon the outcome.[12]

The bottom line is this: While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices. It will be better for universities to employ the procedural protections the regulation requires for all allegations of sexual misconduct, thereby limiting their liability exposure to costly and embarrassing lawsuits.

Citations:

[1] 34 CFR §106 et seq.

[2] https://www2.ed.gov/about/offices/list/ocr/blog/20200805.html

[3] Pennsylvania v. DeVos, No. 1:20-CV-01468 (CJN), 2020 WL 4673413, at *11 (D.D.C. Aug. 12, 2020).

[4] Teresa Manning, Title IX and Targeting the Two-Track Approach, NAT’L. REV., Aug. 24, 2020, https://www.nationalreview.com/2020/08/title-ix-universities-use-two-track-approach-to-avoid-new-rules/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-08-24&utm_term=NRDaily-Smart.

[5] Id.

[6] See, e.g. Doe v. Purdue Univ., 928 F.3d 652, 667-8 (7th Cir. 2019).

[7] Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994).

[8] Doe v. Univ. of Scis., 961 F.3d 203 (3d Cir. 2020)

[9] Doe v. Univ. of Arkansas – Fayetteville, No. 19-1842, 2020 WL 5268514 (8th Cir. Sept. 4, 2020)

[10] Schwake v. Arizona Bd. of Regents, 967 F.3d 940 (9th Cir. 2020)

[11] Doe v. Oberlin Coll., 963 F.3d 580 (6th Cir. 2020)

[12] Id. at 588.

Categories
Due Process Title IX

Biden v. the Courts on Title IX

Appellate rulings have shredded colleges for denying due-process protections—the same protections that the Democratic nominee promises to revoke.

by KC Johnson, September 15, 2020

“Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group,” wrote U.S. Appeals Court Judge Raymond Kethledge in a late June opinion. “That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

Kethledge’s words revived a lawsuit filed by an Oberlin College student who claimed that his school had unfairly found him guilty of sexual misconduct. Over a 100-day period this summer, four appeals courts, including the Sixth Circuit in the Oberlin case, issued rulings expressing concerns that universities, however well-intentioned, had discriminated against an accused student on account of his sex, in violation of Title IX. The decisions, applying to 23 states, represent the latest fallout from the 2011 and 2014 federal guidance pressuring colleges to respond aggressively to what the Obama administration considered a national epidemic of campus sexual assault. The recommended procedures, however, too often denied accused students a meaningful chance to defend themselves. Obama administration officials threatened to withdraw federal funding from schools that resisted these directives, “strongly” discouraging cross-examination and urging colleges to handle Title IX cases without a hearing and through a “trauma-informed” approach that presented virtually any behavior as consistent with the accused student’s guilt.

Without recorded dissent from House or Senate Democrats, Democratic presidential nominee Joe Biden has promised to restore the guidance that these summer decisions have resisted. Neither Biden nor any congressional Democrat has acknowledged these recent Appeals Court rulings—nor, for that matter, any of the 189 state or federal rulings favorable to accused students since the 2011 policy change.

This silence might seem to suggest an obvious question to reporters: would Democrats, who have denounced the Trump administration for defying the rule of law, now pressure universities to defy multiple federal court rulings? Such a line of questioning seems unlikely, though, if only because none of the summer’s appellate decisions has received a mention from the New York Times. Or the Washington Post. Or the Los Angeles Times.

This lack of attention is unfortunate, since the Appeals Court decisions illustrate three themes typifying how colleges have mishandled Title IX adjudications. The first is a sense that some cases feature a preordained outcome—an indifference to innocence in situations where a guilty finding would satisfy the campus demand for vigorous prosecution. Oberlin was one such case, as was a case at the University of Arkansas, which led to an Eighth Circuit decision earlier this month. In both incidents, the accused student was found guilty even as the accuser significantly changed her story during the disciplinary process. The Oberlin panel attributed behavior to the accuser that didn’t meet the school’s definition of incapacitation; the Arkansas tribunal failed to find the accusing student incapacitated during the incident itself, or in a way that the accused student could have recognized. No wonder the Eighth Circuit deemed the Arkansas panel’s decision “unexplained.”

The Appeals Court rulings also addressed procedural irregularities that often beset Title IX adjudications as a whole. Ignoring requirements for “fair” procedures under Pennsylvania law, the University of the Sciences, a private institution in Philadelphia, expelled an accused student without a hearing. (In a May 29 decision, the Third Circuit revived the student’s lawsuit.) Arizona State University likewise avoided a hearing for an accused graduate student—even as a professor improperly shared confidential information from the university’s preliminary investigation with other students. (In a July 29 decision, the Ninth Circuit revived the student’s lawsuit.) While Oberlin did permit a hearing, the student’s college-appointed advocate left in the middle of the proceedings, leaving him unrepresented. Soon thereafter, the advisor retweeted his confidence in all sexual assault survivors.

Given the seriousness of sexual assault allegations, it might seem self-evident that universities should employ formal procedures that ensure the rights of both parties. But in the Title IX realm, it has become an article of faith that increased reporting by victims requires a process that shields the complainant from rigorous questioning by the accused student or his lawyer.

Finally, universities were under governmental pressure for allegedly not being tough enough on the accused in previous sexual assault cases and not arbitrating the cases fairly. In such an environment, the Eighth Circuit’s Steven Colloton wondered, “Why wouldn’t it be plausible for [the university] to say, ‘Well, we’ll find more men responsible, and maybe we’ll go light on the punishment to kind of smooth things over?’”

Judge Colloton’s question identified the crucial difference between courtroom and campus processes: a judge or jury cannot have a connection to parties in a criminal or civil case, but the university always has a stake in a Title IX outcome. Sometimes, accused students get favorable treatment, as in high-profile allegations against star football players at Florida State or Louisiana State. Most accused undergraduates, however, aren’t Heisman Trophy winners whose continued enrollment benefits the university financially. Their fate more closely resembles that of the Arkansas student, whose school’s chief interest seemed to be stopping the bad publicity from campus protests. In theory, the new federal Title IX regulations, which require colleges to use fairer procedures, will protect against the injustices identified in the recent appellate decisions. But political, legal, and university opposition to the regulations cloud their future. It may be that federal courts will need to continue to correct campus processes that too often seem indifferent to justice.

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

https://www.city-journal.org/biden-v-courts-title-ix

Categories
Campus Sexual Assault Sexual Harassment Title IX

PR: Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

WASHINGTON / September 17, 2020 – One month after a historic civil rights policy took effect at colleges across the nation, legal experts are warning administrators about the legal pitfalls of “dual-track” adjudications. Dual-track adjudications are employed by colleges when students or faculty are accused of a type of sexual misconduct that falls outside the strict definitions found in the new Title IX regulation.

Yesterday, SAVE issued a report titled, “Dual Track Adjudications: Recipe for Legal Disaster.” The Commentary notes that apart from the requirements of the new federal policy, “there is another branch of government that vigorously enforces due process rights: the judiciary.” The analysis cites recent decisions by the Third, Sixth, Eighth, and Ninth Circuit Courts that make it easier for an accused student to prevail in a legal action charging the university with sex discrimination (1).

The article concludes, “While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices.”

The SAVE Commentary echoes concerns recently expressed by a number of legal experts:

Last week, Samantha Harris and Michael Allen published an editorial titled, “Universities Circumvent New Title IX Regulations.” The attorneys reveal, “Things were supposed to change in August, when the new Title IX regulations took effect, with robust free speech and due process protections. Now it appears that many campuses are fighting to ensure these protections remain illusory. It’s not that institutions aren’t changing their policies. Rather, they are doing so to comply superficially while claiming increased authority to subject students and faculty to processes that provide few, if any, of the protections that the regulations require.” (2)

In an August 24 editorial, attorney Teresa Manning voiced concerns that schools “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.” For example, Princeton University’s dual-track policy does not require in-person questioning of parties, even though legal scholars believe that live cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” (3)

Addressing the issue more broadly, legal commentator KC Johnson identifies three themes reflected in the four recent appeals court decisions: officials’ indifference to innocence, widespread procedural irregularities, and institutions that bowed to political pressures to find more accused persons guilty. In his September 15 article, Johnson warns of the specter of continued litigation: “In theory, the new federal Title IX regulations, which require colleges to use fairer procedures, will protect against the injustices identified in the recent appellate decisions. But political, legal, and university opposition to the regulations cloud their future. It may be that federal courts will need to continue to correct campus processes that too often seem indifferent to justice.” (4)

If college administrators decide to create “dual-track” adjudications, SAVE urges that these systems assure the same level of due process protections as campus Title IX adjudications.

Links:

  1. http://www.saveservices.org/2020/09/dual-track-adjudications-recipe-for-legal-disaster/
  2. https://www.nationalreview.com/2020/09/title-ix-universities-circumventing-new-rules/
  3. https://heinonline.org/HOL/LandingPage?handle=hein.journals/soulr15&div=21&id=&page=
  4. https://www.city-journal.org/biden-v-courts-title-ix
Categories
Discrimination Sexual Assault Sexual Harassment Title IX

Rep. Ben Cline Opening Statement at Hearing on Gender-Based Protections

WASHINGTON, DC/September 10, 2020 – Today, Rep. Ben Cline (R-VA), Republican Leader of the Subcommittee on Civil Rights and Human Services, offered the following opening statement, as prepared for delivery, at a subcommittee hearing to discuss gender-based protections:
 
“Prior to coming to Congress, I was proud to serve as a prosecutor of domestic violence cases to ensure justice was carried out. Additionally, during my time as a Delegate in Virginia’s General Assembly, I authored several bills to meaningfully increase protections for such victims and their families. Furthermore, while in Congress, I have worked across the aisle to introduce H.R. 6685 with Congresswoman McBath to allow funds allotted through the Family Violence Prevention Services Act to still be accessed during the pandemic. Here in Congress, our committee has created protections for pregnant women, students, and workers alike so they can live, work, and learn in environments free from discrimination. I know I speak for all my colleagues here today when I say no one should ever be denied an opportunity because of unlawful discrimination.

“That’s why my Republican colleagues and I consistently support legislation that aligns with protections defined under existing civil rights laws. These very laws are what ensure the fairness I mentioned earlier in classrooms and workplaces across the country.

“Unfortunately, the same cannot be said for my colleagues on the other side of the aisle. Democrats cherry pick who does and does not deserve protections.

“Democrats have undermined students’ rights and fundamental fairness under Title IX of the Education Amendments of 1972. In 2011, the Obama administration issued guidance that created significant controversy and confusion. Many criticized the guidance for undermining due process rights for involved parties and for denying public review and comment from affected stakeholders. In fact, multiple court cases have struck down campus procedures that resulted from the guidance.

“The Trump administration addressed this past wrongdoing by taking over 124,000 public comments into consideration while drafting a rule that defines the responsibilities of institutions to respond to allegations of sexual harassment, including sexual assault, under Title IX.

“Many Democrats have been critical of the Education Department’s updated Title IX rule despite the fact that the rule is rooted in our deepest, time-tested legal traditions. It requires schools to take all allegations of sexual harassment, including sexual assault, seriously, and support and protect survivors during every step of the process.

“This rule will help ensure that all students can pursue education free from discrimination, harassment, and sexual violence, and we owe it to survivors to ensure that clear and fair procedures are in place to respond to sexual violence. The Department of Education’s Title IX rule delivers on this front.

“Democrats have also consistently tried to roll back protections that allow religious organizations to operate in accordance with their sincerely held religious beliefs.

“In fact, Democrats slammed a proposed rule announced last year by the Department of Labor (DOL) to protect religious liberty. Religious organizations have been discouraged from seeking federal contracts because of uncertainty surrounding the requirements for religious organizations. DOL’s proposed rule clarifies the protections given to religious organizations that contract with the federal government. DOL rightly considered recent Supreme Court decisions regarding the religious freedom of employers, which affirmed the limitations on the government to infringe on the free exercise of religion. Not only does this proposed rule protect religious liberty, it also benefits both the contracting system and taxpayers by encouraging additional qualified organizations to bid for contracts, which will increase competition and provide needed goods and services that may otherwise not be available.

“Bottom line, all Americans deserve to learn and work in an environment free from discrimination based on their sex or religion. Committee Republicans have and will continue to advocate for policies that allow students to learn and employees to work in environments free from discrimination.

“While I look forward to the testimony from our witnesses, I’d like to point out that my Democrat colleagues only allowed Republicans to invite one witness to cover a very broad set of issues. Unfortunately, this structure will limit the Subcommittee’s ability to have a robust discussion today on how to best ensure Americans can pursue an education and a career in positive environments.”

https://republicans-edlabor.house.gov/news/documentsingle.aspx?DocumentID=407043

Categories
Campus Sexual Assault Sexual Harassment Title IX Equity Project Training

PR: Many Universities Not Compliant with New Title IX Requirement to Post Training Materials

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Many Universities Not Compliant with New Title IX Requirement to Post Training Materials 

WASHINGTON / September 8, 2020 – A review of the websites of 50 colleges and universities across the nation reveals that 65% are out of compliance with the Title IX regulation’s requirement to post all Title IX training materials. This past week, SAVE filed complaints with Office for Civil Rights against several of these non-compliant schools.

The Title IX implementing regulation, 34 CFR 106, has new provisions, which went into effect on August 14, 2020, that require the posting of Title IX training materials. The regulation calls on schools to post on their websites, “All materials used to train Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process.” §106.45(b)(10)(D)

On May 18, the Office for Civil Rights issued detailed guidance on the topic: https://www2.ed.gov/about/offices/list/ocr/blog/20200518.html. The guidance states, “All materials used to train Title IX personnel…Must be publicly available on the school’s website.” [emphasis in the original].

The guidance goes on to explain:

“Section 106.45(b)(10)(D) does not permit a school to choose whether to post the training materials or offer a public inspection option. Rather, if a school has a website, the school must post the training materials on its website.

  • A school must post on its website: “All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.” Posting anything less than “all materials” on the website in insufficient. Accordingly, merely listing topics covered by the school’s training of Title IX personnel, or merely summarizing such training materials is not the same as posting “all materials.” [emphasis in the original]

Many institutions, such as Princeton University (1), posted training materials geared toward students and faculty, or webinars provided by the Department of Education, but did not post the training materials used for Title IX staff. The federal regulation states that all materials used to train Title IX personnel must be posted. Training materials that are protected by a student ID number or password are also out of compliance, as the federal regulation states the material must be made publicly available.

In contrast, many schools are in compliance with the federal regulation’s posting requirement. Examples of such schools are Amherst College (2) and the University of Colorado-Boulder (3). The University of Vermont even posted a YouTube video of the actual training program that their staff attended (4).

SAVE has filed complaints with the Office for Civil Rights against 10 schools that are out of compliance with the federal regulation. More OCR complaints will be filed as SAVE continues its review of school websites.

The SAVE Title IX Equity Project has found that Title IX violations are widespread at schools across the country. These violations pertain to sex-specific scholarships, sex-specific programs, and due process procedures in campus adjudications. The number of open OCR investigations of such violations currently exceeds 200 cases, and continues to increase (5).

Citations:

  1. https://sexualmisconduct.princeton.edu/reports
  2. https://www.amherst.edu/offices/title-ix/title-ix-policy
  3. https://www.colorado.edu/oiec/policies
  4. https://www.uvm.edu/aaeo/title-9-sexual-misconduct
  5. http://www.saveservices.org/equity/ocr-investigations/