Author: Deanna Brown

Categories
Campus Discrimination Legal Office for Civil Rights

Complaint: MIT discriminates against males and white people through nearly 30 different programs

JOHN RIGOLIZZO – RUTGERS UNIVERSITY •JUNE 10, 2021

‘MIT is apparently either unaware of federal civil rights laws, or it thinks it’s above the law’

A complaint has been leveled against the Massachusetts Institute of Technology for 27 alleged violations of Title VI and Title IX of the Civil Rights Act.

The complaint, authored by University of Michigan-Flint economics Professor Mark Perry, was filed with the Boston-based Office of Civil Rights in late May.

Of the 27 MIT programs cited in the complaint, 24 are alleged to be in violation of Title IX, which protects against discrimination on the basis of sex in schools.

Two other MIT programs are alleged to be in violation of Title VI, which protects against discrimination on the basis of race, color or national origin.

And one program is accused by Perry of violating both laws.

Perry has made a habit of filing Civil Rights complaints against public universities, and has filed 326 of this nature since 2016.

But he noted in an email to The College Fix that MIT’s 27 alleged violations “sets a new record for the greatest number of violations I’ve found at a single college or university.”

The complaint came in at 2,300 words and six pages and Perry said there may even be “additional violations that weren’t uncovered.”

“MIT is apparently either unaware of federal civil rights laws, or it thinks it’s above the law,” Perry told The Fix. “Either way [it’s] a pretty sad indictment of MIT.”

Most of the alleged complaints targeted programs that benefited only women and excluded men, such as scholarships, study groups, career networking, graduate-level groups, educational seminars and similar efforts. Several of the programs cited in Perry’s complaint are for middle and high school female students only.

For the Title VI complaints, one benefitted entrepreneurs who are Black, Indigenous and People of Color, or BIPOC, and another is a professional fund for LGBTQ students of color.

The complaint that listed both Title IX and Title VI is MIT’s Women of Color Professional Fund.

The College Fix reached out to MIT’s media relations department for a response to the complaint, but the department, as well as Director Kimberly Allen and Deputy Director Sarah McDonnell, did not reply to requests for comment.

As for Perry, he told The College Fix that as of this week, he has filed complaints against 326 colleges and universities for more than 1,200 Title IX and Title VI violations, and 158 of those complaints have been opened so for federal civil rights investigations, and about 50 investigations have been resolved in his favor.

Perry’s first victory came in 2016 when he successfully got a women-only study lounge changed to an all-student lounge at Michigan State.

As for MIT, Perry said he expected that MIT would “stubbornly fight” to keep its single-sex, female-only programs.

But instead, he added, MIT should either discontinue their discriminatory practices, convert them to co-educational programs for males and females, or introduce equivalent male-only programs to ensure equal access to the same opportunities and funding.

Complaint: MIT discriminates against males and white people through nearly 30 different programs | The College Fix

Categories
Campus Department of Education Department of Justice Discrimination Title IX

BOLD program under investigation for Title IX complaint

By  — Senior Writer, The Ithacan
Published: February 10, 2021

The U.S. Office for Civil Rights has opened an investigation against Ithaca College’s BOLD Women’s Leadership Network after receiving a complaint of a Title IX violation by a University of Michigan professor.

Mark Perry, professor of economics and finance at the University of Michigan, filed a complaint against the BOLD Women’s Leadership Network in August on the basis of sex discrimination. The BOLD Women’s Leadership Network is a leadership development program that awards a two-year scholarship to students who identify as women, particularly those who have been underrepresented in higher education.

Samantha Elebiary, BOLD Program Director at the college, said that she cannot comment on the status of an ongoing investigation but that the college will cooperate with the Office for Civil Rights.

Perry said the BOLD Women’s Leadership Network violates Title IX policy, which states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance,” according to the U.S. Department of Education website.  Because the college allows students to apply federal money to their tuition through the Free Application for Federal Student Aid, the college is required to comply with Title IX policy.

The BOLD Women’s Leadership Network is funded by the Pussycat Foundation, which sets the application criteria for participating colleges. The program requires that applicants identify as women, but Elebiary said nonbinary identifying students are not discouraged from applying. Elebiary said students are not required to disclose their gender identity on the application.

President Shirley M. Collado brought the BOLD Women’s Leadership Network to the college in 2017, shortly after she became president of the college. Collado founded the program when she worked at Rutgers University–Newark. Elebiary started working at the college as a residence director in 2017 and began working with BOLD in 2018.

Collado has not responded to requests for comment.

At the All-College Gathering on Feb. 9, Collado said the program has received over $4 million in funding since she brought the program to the college.

“The main goal is to provide that additional professional leadership development to students who identify as women or female and are in their junior and senior year,” Elebiary said.

Perry said he has filed 283 Title IX complaints. A majority of these complaints are against colleges with programs or spaces exclusive to women. He said he has filed complaints against BOLD Women’s Leadership Network programs at Middlebury College, The College of Saint Rose, University of Connecticut and Colby-Sawyer College. The only college that hosts a BOLD Women’s Leadership Network program that he has not filed a complaint against is Rutgers University-Newark.

His complaint against The College of Saint Rose was also opened for investigation by the Office for Civil Rights. The other complaints are still pending investigation.

Perry said he believes the BOLD Women’s Leadership Network is in violation of Title IX because there is not a similar program for men, and men are ineligible for the current program.

“It’s not just illegal, but it seems unethical to have federal civil rights legislation that’s only enforced selectively and with a double standard,” Perry said.

At this time, Elebiary said the college does not have any plans to alter the structure of the BOLD Women’s Leadership Network.

The college hosts leadership scholarships that are open to all genders like the Leadership Scholar Program Award, the Martin Luther King Scholar Program and the Park Scholar Program. The college also offers leadership opportunities to all students through the Student Leadership Institute organized by the Office of Student Engagement. Student-athletes can also participate in the Ithaca College Sports Leadership Academy, a program that coaches its members on developing individual and team leadership skills.

Perry said he believes women do not need special programming for leadership development because they attend college at a higher rate than men. Women earned more than 57% of undergraduate degrees and 59% of master’s degrees in 2018, according to the Center for American Progress.

While women make up 50.8% of the U.S. population, they are still largely underrepresented in leadership, according to the Center for American Progress.

Ashley Stalnecker can be reached at astalnecker@ithaca.edu or via Twitter: @Ashley_Stal

BOLD program under investigation for Title IX complaint | The Ithacan

Categories
Law & Justice Sexual Harassment

Virginia Senate blocks strange harassment legislation, but it might still pass

By Liam Bissainthe February 9, 2021

The Virginia state senate blocked a bill that could potentially change the definition of “sexual harassment.” It would also hold even small employers liable for comments defined as either “workplace harassment” or “sexual harassment.” Employers would held liable even for conduct that occurs “outside of the workplace,” and even for conduct committed by “nonemployees” such as customers.

But the very same provisions are found in another bill passed by the Virginia House of Delegates, that is still sitting in a committee of the state senate. So the legislation could still conceivably become law.

In a 20-to-18 vote, the state senate voted on February 5 to send the first harassment bill (SB 1360) back to the Judiciary Committee, where it died on February 6. But the exact same provisions appear to be found in the second harassment bill, HB 2155, which is still alive and sitting in the General Laws committee.

Reportedly, the ladies at Richmond SHRM objected to the bill. According to a comment at the Bacon’s Rebellion blog, they were concerned that

Any offensive comment based on a protected class is potentially the basis for a claim, regardless of whether the person at whom the comment was directed files the claim or was offended.

Employees may file a claim even if they are not the victim, if the conduct occurred outside of work (arguably outside the scope of employment), and there was no harm or adverse employment action. Because sexual harassment under these bills does not have an “unwelcome” conduct standard, a third party could arguably file a claim based on mutually consensual conduct between two other people that they deem offensive.

Bystander employees may sue on his/her own and thus bring in the target of harassment even if the target wishes to remain silent and work the situation out on his/her own.”

A lawyer also raised separate concerns about the bill in articles at Bacon’s Rebellion and at CNS News. The bill states that harassment can consist of “verbal, pictorial, audio, or visual conduct.”

The bill also says “conduct may be workplace harassment regardless of whether …. the conduct occurred outside of the workplace.” But as a federal appeals court once observed, “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.” (See Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987)).

Employers may find it very difficult to enforce workplace norms outside the workplace. Telling them to regulate conduct “regardless” of where it occurs seems like overreaching. As a judge once pointed out in her ruling in dismissing a sexual harassment lawsuit, “even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).

There may be occasional instances where conduct outside the workplace poisons the workplace, but that’s rare enough that it’s misleading to say that conduct is harassment “regardless” of where it occurs. Often, as the court noted in the Sparks case, whether conduct occurs in the workplace makes all the difference in the world.

The bill also requires employers to take “immediate and appropriate corrective action” in response to harassment among coworkers. Surely, employers should respond promptly in cases of harassment. But “immediate” action may not be possible. What if the harassment complaint is filed after work hours, or when the supervisor is absent from the worksite?

Federal courts only require “prompt and appropriate” action, for an employer to avoid a sexual harassment lawsuit. (See, e.g., Spicer v. Commonwealth of Virginia, 66 F.3d 705, 710 (4th Cir. 1995) (“prompt and adequate”); Intlekofer v. Turnage, 973 F.2d 773, 779 (9th Cir. 1992) (“prompt and appropriate”)).

“Immediate” action is not always feasible. For example, when employees are out of the office, or deaf employees need a sign-language interpreter, that may justify the employer taking a bit more time to figure out whether the accused employee is guilty, under the “prompt and appropriate” standard used by the courts — as one court made clear in overturning a jury verdict against an employer that took a while to figure out what action to take. (See Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001)).

The bill contains the following anti-employer language that may result in juries holding employers liable for conduct, even when its effect on the complainant is so trivial that the complainant could never win a harassment case under existing law:

Conduct may be workplace harassment regardless of whether (i) the complaining party is the individual being harassed; (ii) the complaining party acquiesced or otherwise submitted to or participated in the conduct; (iii) the conduct is also experienced by others outside of the protected class involved; (iv) the complaining party was able to continue carrying out the duties and responsibilities of such complaining party’s job despite the conduct; (v) the conduct caused a tangible or psychological injury; or (vi) the conduct occurred outside of the workplace.

(See proposed Va. Code § 2.2-3905(B)(9)(e)(3)).

This anti-employer language makes it seem like the conduct doesn’t need to be any big deal to the plaintiff, for the plaintiff to sue over it. Under existing law, people who sue over sexual or racial harassment, but view the conduct as “not a big deal,” lose their lawsuits. For example, a man admitted just that in his deposition, and lost his harassment lawsuit for precisely that reason. (See Newman v. Federal Express, 266 F.3d 401 (6th Cir. 2001)).

Under federal law, conduct amounts to illegal sexual harassment when it is severe or pervasive enough to create a hostile or abusive working environment for the plaintiff, from both an objective perspective (that of a reasonable person) and the subjective perspective of the plaintiff. (See Harris v. Forklift System, 510 U.S. 17 (1993); Clark County School District v. Breeden, 532 U.S. 268 (2001)). This dual requirement isn’t stated in the bill, although it doesn’t rule it out, either (it doesn’t contain words like “severe or pervasive,” although neither do some state EEO laws that are interpreted by judges as requiring “severe or pervasive” conduct for liability. Some campus sexual or racial harassment codes that banned racist or sexist speech but didn’t have language requiring that it be “severe or pervasive” were struck down as a a result, as being overly broad restrictions on free speech. See, e.g., DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)).

In comments to the Senate Finance Committee, Senator McClellan, chief sponsor of the bill, indicated that the bill incorporates existing legal standards on what is “sexual harassment.” But that claim is questionable given its text.

For example, the bill says conduct can be harassment “regardless” of whether “the complaining party is [not] the individual being harassed.” But if the complaining party isn’t being harassed, that’s a strong sign that the complaining party’s own work environment wasn’t hostile, which means she can’t sue under existing law. That’s because “the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff,” notes a federal appeals court. (See Gleason v. Mesirow Financial, 118 F.3d 1134, 1144 (7th Cir. 1997)).

The bill also says conduct can be harassment “regardless” of whether “the conduct is also experienced by others outside of the protected class involved.” But if the conduct is experienced by men and women alike, that is a sign that the conduct is not discriminatory, and is not a form of discriminatory harassment, such as sexual harassment, under existing law. Instead, the conduct may simply be a normal part of the job. For example, the California Supreme Court rejected a sexual harassment lawsuit over conduct that was not aimed at the plaintiff — sexual jokes by comedy writers that were part of the process of producing an adult-oriented sitcom — because the conduct wasn’t aimed at the plaintiff based on her sex. The conduct may have offended her, but it didn’t treat women worse than men, and sexual humor was simply a necessary part of producing an adult-oriented sitcom. (See Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006)).

The bill also doesn’t include the word “unwelcome” in its definition of sexual harassment. The Supreme Court has always said that conduct has to be “unwelcome” to be sexual harassment. Not including the word “unwelcome” in the definition of sexual harassment might lead to people suing over offensive remarks they themselves instigated (and thus objectively welcomed) or, conceivably, people suing over “welcome” but offensive relationships among their peers. Under existing law, if you instigate an exchange you can’t sue over it, such as when you say something vulgar or profane, and your co-workers respond in kind. (See Scusa v. Nestle USA, 181 F.3d 958 (8th Cir. 1998)).

Virginia Senate blocks strange harassment legislation, but it might still pass – Liberty Unyielding

Categories
Campus Discrimination Title IX

Countering Sex Discrimination at UCF

David Acevedo, February 08, 2021

Adam Kissel, senior fellow at the Cardinal Institute for West Virginia Policy and visiting scholar at the Texas Public Policy Foundation, has filed a complaint with the Atlanta Office of the Department of Education Office for Civil Rights (OCR), alleging that the University of Central Florida (UCF) is in ongoing violation of Title IX. Readers should note that the Atlanta Office is one of twelve OCR regional offices in the country and oversees complaints not only in Georgia but also in Tennessee, Alabama, and Florida.

Kissel filed this complaint to bring UCF, one of the nation’s largest universities, into compliance with civil rights law. (His complaint is unrelated to UCF’s persecution of Professor Charles Negy, which NAS has commented on elsewhere.)

Title IX, the provision of the Education Amendments of 1972 that prohibits sex discrimination in educational institutions receiving federal funding, states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. [emphasis added]

Kissel’s complaint identifies seven UCF programs and scholarship that explicitly or implicitly exclude boys and/or men from participation based solely on their sex. Kissel contends that these programs are therefore in direct violation of Title IX and that OCR and UCF must take action to ensure that the programs conform to federal nondiscrimination requirements.

One such program is UCF’s Science Leadership and Mentoring (SLAM), which “empowers girls [not boys] to be assertive, brave, confident, independent, inquisitive and proud leaders in STEM” and limits applications to “[a]ll girls [not boys] entering 7th grade.” Kissel notes that UCF does not offer an equivalent program for 7th grade boys. He argues that this program expressly denies access to boys and is therefore in violation of Title IX.

Kissel also highlights scholarships that UCF offers or advertises exclusively to women, which violate Title IX according to an OCR clarification from January 2021: “Under Title IX, a recipient is prohibited from advertising or promoting … any scholarship, fellowship, or other form of financial assistance … that discriminates on the basis of sex.” Nevertheless, UCF offers or advertises at least two such scholarships, including the “American Association of University Women/Winter Park-Orlando Branch” scholarship and the “Diaz-McAgy/Total Nutrition Technology Women in Science Scholarship.” Kissel believes that advertising the former and directly offering the latter contradict OCR’s interpretation of Title IX and must be remedied.

Kissel cites several further examples—NAS has posted the full complaint here. NAS believes that Kissel has presented very strong evidence that UCF has committed multiple violations of Title IX law. We endorse his request that the Office for Civil Rights investigate this matter immediately. We also call on UCF to conduct its own immediate investigation and, without federal prompting, to reform its practices to ensure that it does not violate federal antidiscrimination law. UCF should not need external pressure to follow the law.

NAS generally supports equality of opportunity in higher education (and in our republic as a whole) among individual American citizens, and opposes group identity preferences of any sort, whether justified by equity, diversity, inclusion, affirmative action, or any other euphemistic rationale. These preferences rot the effectiveness of higher education—but, more fundamentally, they are unjust. We encourage work such as Kissel’s to ensure that colleges and universities live up to the letter of the law, and we also support all needed changes to the law to ensure that colleges and universities retain no legal permission to discriminate. When the law is unjust, the law should be changed.

Adam Kissel has informed NAS that he sent a courtesy copy of his OCR complaint to UCF’s Title IX office and subsequently spoke with the university’s Title IX coordinator. He assures us that UCF is taking the complaint seriously. We are delighted that OCR and UCF have begun so well, and we hope they will finish as well as they have begun.

David Acevedo is Communications and Research Associate at the National Association of Scholars.

Countering Sex Discrimination at UCF by David Acevedo | NAS

Categories
Department of Education Department of Justice Due Process Law & Justice Legal Office for Civil Rights Sexual Assault Title IX

The Biden Plan For Title IX Must Protect Due Process

By: MICHAEL POLIAKOFF | January 25, 2021

The 18th-century British jurist William Blackstone pronounced, “It is better that ten guilty persons escape, than that one innocent suffer.” There are few principles of law we hold more sacred than “innocent until proven guilty.” For most of the last decade, however, this doctrine has had negligible impact in matters of campus sexual assault.

There are policies of the previous administration that President Joe Biden is already in the process of overturning or altering. It would be well, however, for him to reconsider his campaign promise to “return to and then build on” the Obama administration’s Title IX policies, which led to more than 500 investigations of accused students and shattered an untold number of lives. Having himself been the object of unproven allegations of sexual assault, he must look into his own heart before reinstituting campus procedures that make a mockery of justice.

The victim of sexual assault is likely to bear the emotional and psychological scars for years to come. It is a moral imperative for an institution of learning to protect students from the trauma that ensues. But the mirror image of that horror happens when an innocent person is unjustly found guilty of sexual assault and punished – typically by expulsion or long-term suspension – by his college. The reputational scars and career damage may last a lifetime. Due process provides a greater likelihood that punishment will fall on the guilty and not those wrongfully accused.

There are many instances in which the courts have found wrongful prosecution. Sometimes the case hinged on spectacular mendacity, like the invented account of a brutal gang rape in a University of Virginia fraternity house in 2014 that provided Rolling Stone with a fraudulent cover story. Or the dishonest prosecution launched by an opportunistic district attorney—later disbarred—of Duke lacrosse players that showed how quickly a prestigious university, from the president on down, called for punishment when no crime was committed.

Last spring, U.S. Secretary of Education Betsy DeVos signed a Final Rule that provided key definitions and regulations for the enforcement of Title IX when students accuse other students of campus sexual assault. In addition to the rule’s protection of alleged victims, including reporting procedures and survivor support, it notably provides to the accused the rights to present, cross-examine, and challenge evidence in campus hearings.

You do not have to be a constitutional scholar to recognize that Secretary DeVos was right to redress a longstanding ethical and procedural abuse. The Biden administration must not reverse her important work and bring back the guilt-presuming process that the Obama administration demanded in its April 4, 2011, “Dear Colleague Letter” and in subsequent, egregious misinterpretations of Title IX.

These extra-legal Department of Education decrees, which never went through a formal regulatory review process, pressured universities to stack proceedings against accused students. They even threatened to take away institutions’ federal funding if they allowed cross-examination of accusers in campus hearings. Thus, did the Obama administration deprive accused students of what the Supreme Court has repeatedly called “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

“Innocent until proven guilty” does not fare well against dramatic claims of sexual violence. At the extreme end, recall then-congressman Jared Polis, now governor, who inverted Blackstone’s wisdom by stating in a House higher education subcommittee meeting on sexual assault: “If there are 10 people who have been accused, and under a reasonable likelihood standard, maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transfer to another university, for crying out loud.”

For crying out loud, indeed. What college or university is going to admit a person, innocent or not, who has been expelled on a charge of sexual assault? What company, scholarship foundation, or professional school is going to take that person whose academic record will forever show expulsion or even suspension for sexual assault?

President Biden should consider documented cases like that of the Amherst student who was expelled based on a woman’s claim that he had forced her into sexual contact more than 20 months before—even though her own text messages proved that in fact she had been the active party when he was blackout drunk in her room.

Had the accusations hurled against President Biden on the campaign trail been leveled years ago against College Joe and adjudicated under a campus regime like the one later decreed by the Obama-Biden administration, he would probably have had no meaningful chance to defend himself or clear his name. His career and American history would have been entirely different.

Michael Poliakoff is president of the American Council of Trustees and Alumni, an independent, non-profit organization committed to academic freedom, excellence, and accountability at America’s colleges and universities. He previously served as vice president for academic affairs and research at the University of Colorado and in senior roles at the National Endowment for the Humanities and the Pennsylvania Department of Education. He has taught at Georgetown University, George Washington University, Hillsdale College, the University of Illinois at Chicago, and Wellesley College. He received his undergraduate degree magna cum laude from Yale University, a Class I Honours B.A. at Oxford University as a Rhodes Scholar, and a Ph.D. in classical studies from the University of Michigan.

The Biden Plan For Title IX Must Protect Due Process (forbes.com)

Categories
Campus Civil Rights Department of Education Due Process Law & Justice Legal Office for Civil Rights Title IX

Keep Cross-Examination Out of College Sexual-Assault Cases

By Suzanne B. Goldberg
JANUARY 10, 2019

Requiring cross-examination in campus sexual-misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-examination “the greatest legal engine ever invented for the discovery of truth.” Although this new mandate might seem at first like a good idea, a closer look shows otherwise.

The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.

Traditionally, students involved in college-misconduct processes have been permitted to choose an adviser to provide them with support and information. In many instances, peer advisers, faculty members, and even parents have ably filled that role. Likewise, at most colleges, neutral faculty members or administrators are assigned responsibility for asking questions and otherwise investigating to determine whether wrongdoing occurred.

But the new regulations would change this by requiring colleges to allow each student’s adviser to do the questioning of the other student or anyone else involved in the case — not as a neutral party but as an adversary. This means that parent-advisers would have government-sanctioned authority to question their child’s accuser or alleged assailant, and a student could wind up cross-examining another student, even on the same small campus.
One might think that colleges would voluntarily assign faculty members and administrators to take that responsibility. But it is one thing for a faculty or staff member to inform and support a student, as many currently do, and quite another to adversarially cross-examine a student who is also part of his or her own institution. Individual educators, as well as the college, may see this as conflicting with their responsibility to support all students. Still, the regulations would require institutions to provide students with an adviser to do the cross-examining if a student does not bring his or her own adviser to a hearing.

Training these campus-based advisers would pose additional challenges. As a general matter, preparing administrators and professors to conduct investigations and hearings in a fair and impartial way fits well with what colleges already do in committing to value all students equally. But training in techniques for casting doubt on a student’s credibility, which is an essential function of cross-examination, cuts in a different direction.

To be sure, some students will hire lawyers or find a family friend to help. For many, though, that option will be unaffordable or unavailable. This disparity between students may not be as significant when advisers play a quiet, supporting role, but it almost certainly will amplify inequities and increase the risk of obscuring efforts to learn the truth of what happened when a lawyer questions one student and a nonlawyer questions the other.

Through my work on these issues nationally, I have heard some advocates propose that colleges provide students with lawyers when charges are serious even if they do not do so for other serious misconduct cases. Even the Department of Education has not gone that far, however, perhaps recognizing that most American colleges could not do this without diverting funds from financial aid, faculty hiring, and other core educational needs. Of more than 4,000 higher-education institutions in the United States, few have lawyers on staff to serve in that role, and even fewer (just over 200) have accredited law schools with faculty members or students who might pitch in.

Still, some say adversarial questioning is necessary for campus sexual-misconduct cases, even when it is not used for other student-misconduct matters such as those involving illicit drug use, vandalism, and nonsexual assault. As one court wrote, adversarial questioning “takes aim at credibility like no other procedural device” because it enables the accused to “probe the witness’s story to test her memory, intelligence, or possible ulterior motives.”

But questions need not be adversarial to assess credibility. Nearly all courts to consider the issue have found fairness can be fully achieved through questioning by a neutral college administrator. And although the Department of Education says that its proposal will avoid “any unnecessary trauma” that might come from students questioning one another directly, some advocates argue that concerns about trauma remain strong and will probably deter students — especially those who are afraid of the accused student — from filing complaints at all. Exacerbating the risks here, the proposed regulations would forbid institutions from relying on statements of students who decide they are unable, for emotional or other reasons, to subject themselves to cross-examination.

More broadly, it is a serious question whether cross-examination is even effective in this setting. Many scholars say that aggressive, adversarial questioning is more likely to distort reality than enable truth-telling. Research shows, for example, that a witness’s nervous or stumbling response to adversarial questioning is more likely an ordinary human reaction to stress than an indicator of false testimony.
Since the Department of Education has stressed its respect for colleges’ expertise, it might consider commissioning a study to test the effectiveness and risks of campus cross-examination. But to override current, experience-based procedures and impose a national cross-examination rule across all higher-education institutions in the United States would undermine, not enhance, the fair and impartial treatment that all students deserve.

Suzanne B. Goldberg is a law professor at Columbia University. She is also director of the law school’s Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic.

A version of this article appeared in the January 18, 2019, issue

Keep Cross-Examination Out of College Sexual-Assault Cases (chronicle.com)

 

Categories
Law & Justice Legal Sexual Harassment

Confusing “Workplace Harassment” Bill is Back

by Hans Bader, January 18, 2021

“Old bills never die, they just wait for votes,” notes the East Bay Times. A bad bill can die in one legislative session, only to come back with a vengeance in the next session, and get passed due to more intense lobbying, or the death or retirement of opposing lawmakers.

That may happen this year in Virginia. One example is the resurrection of a complicated and confusing workplace harassment bill I discussed last year. It died in March 2020 on a 23-to-17 vote, apparently after legislators became concerned about the strange way it defined “workplace harassment.” That bill, HB 1418, banned both “sexual harassment” and “workplace harassment” at workplaces with five or more workers. It also redefined what “harassment” means.

That bill has now come back from the dead. It has been re-introduced in the House of Delegates as HB 2155. And a more extreme version of the bill was introduced in the state senate as SB 1360.

These bills say “conduct may be workplace harassment regardless of whether” the “conduct occurred outside of the workplace.” And they omit the requirement that conduct be “unwelcome” before it can constitute harassment. That requirement is found in federal sexual harassment laws and court rulings.

Furthermore, the bills say plaintiffs can sue even if they “participated in” the conduct. That might allow workers to sue their employer over welcome participation in foolish activities with co-workers that they later regret, or even conduct they instigated that resulted in embarrassment or discomfort.

The Senate bill, SB 1360, contains a new provision that will make things even worse for employers. It says that “The construction of similar laws in federal courts or other jurisdictions shall not be used to limit the availability of remedies under this chapter.”

So if this bill is enacted, employers will not longer be able to get lawsuits over trivial things dismissed by citing federal court rulings dismissing lawsuits over similarly trivial conduct. Workers will be able to make a mountain out of a molehill.

And businesses trying to comply with the law won’t even be able to look at existing case law to shed light on whether they are in compliance, under this bill. That will create a great deal of confusion.

What sexual harassment means, legally, is fleshed out for employers by rulings in the federal courts, such as the Supreme Court.

Those rulings “drawing the line” for employers, provide valuable guidance for employers as to what is — and isn’t — sexual harassment.

But these Virginia “workplace harassment” bills don’t follow that guidance. And the Senate bill explicitly rejects the “construction of similar laws” against sexual harassment by the “federal courts.”

These bills do include various factors as to what it considers “workplace harassment.” But only some of them are consistent with what the federal courts say in the context of sexual harassment, and they omit other factors cited by the courts.

These “workplace harassment” bills apply to all employers with five or more workers.

Federal and state law already prohibit sexual harassment and discriminatory harassment against most workers. Right now, a federal law bans racial harassment at even the smallest employers (42 U.S.C. 1981). But other forms of harassment are not prohibited as comprehensively at small employers.

Employers with 15 or more workers are subject to federal laws categorically forbidding not just sexual harassment, but also harassment based on race, religion, disability, age, national origin, etc. But employers with fewer than 15 workers aren’t subject to most other federal employment laws, only state laws, and employers with fewer than five workers aren’t liable for sexual harassment under state law unless it involves a common-law wrong, such as quid-pro-quo sexual harassment; assault; battery; intentional infliction of emotional distress (severe forms of sexual harassment that intentionally or recklessly cause psychological harm); invasion of privacy; or other torts.  (See, e.g., Van Buren v. Grubb (2012); Middlekauf v. Allstate Ins. Co. (1994)).

Additional forms of harassment are illegal under state law at employers with 5 to 14 workers. They are subject to the Virginia Values Act, which bans discriminatory discharges of employees. Courts interpret “discriminatory discharge” to include sexual harassment and discriminatory harassment that creates an intolerable working environment and thus motivates the employee to quit — such as a steady stream of sexual insults. (See Pennsylvania State Police v. Suders (2004)).

It’s a mistake for these Virginia “harassment” bills to imply that it’s irrelevant whether “conduct occurred outside of the workplace,” in a case that’s supposedly about “workplace harassment.” Inappropriate behavior is much less likely to be sexual harassment when it occurs outside the workplace. As Judge Barbara Crabb ruled in one sexual harassment case, “Even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).

Juries should not be told the contrary, as these “workplace harassment” bills do.

In theory, conduct outside the workplace could be “workplace harassment” in rare cases — just as a person could theoretically be innocent of bank robbery, despite being seen with a gun in the getaway car near the bank right after the robbery.

But that’s not usually true. The location of conduct is obviously relevant to whether it amounts to “workplace harassment.” So these bills should not suggest to the contrary with their “regardless” language.

These bills also create problems by stating that “conduct may be workplace harassment regardless of whether … the conduct is also experienced by others outside the protected class involved.”  This will encourage juries to find liability in some cases where nothing discriminatory is going on, as I explained back in 2020, and may occasionally lead to liability for speech that is protected by the First Amendment, because the state of Virginia lacks a compelling interest in restricting it.

The government has a compelling state interest in eradicating discrimination, but not in banning offensive workplace speech that is not discriminatory — or is not severe and pervasive enough to create a hostile environment. For some employers, such as the producers of TV sitcoms, offensive speech is a necessary part of the workplace, even if some listeners view the speech that occurs in the creative process as “harassing” — as Justice Ming Chin of the California Supreme Court discussed in his concurring opinion in Lyle v. Warner Bros. Television Productions (2006)).

Harassment bans that are vague or confusing can violate the First Amendment by depriving speakers of fair notice of what is forbidden, as the Ninth Circuit Court of Appeals ruled in Cohen v. San Bernardino Valley College (1996).

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.”

Confusing “Workplace Harassment” Bill is Back | Bacon’s Rebellion

 

Categories
Department of Education Department of Justice Law & Justice Legal Title IX

Biden faces Title IX battle complicated by politics and his own history

A Long and Complicated Road Ahead
Improving how colleges respond to sexual assault on campus is one of President Biden’s top priorities. But it’s likely to be an uphill battle

By Greta Anderson, January 22, 2021

Joe Biden entered the White House this week with high and wide-ranging expectations from higher education leaders, advocates for survivors of sexual violence and students for how his new administration will require colleges to handle and reduce sexual assault on college campuses.

In addition to addressing the public health and economic consequences of the pandemic, supporting the ongoing movement for social justice and equity for Black Americans, and trying to unite a politically polarized population, President Biden has also promised to strengthen Title IX, the law prohibiting sex discrimination in federally funded institutions, which mandates how colleges should respond to student reports of sexual misconduct.

Through his time as a senator and vice president, violence against women and the prevalence of sexual assault has remained a “signature issue” and something the president “cares deeply about,” said Shep Melnick, a professor of political science at Boston College and author The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

Melnick noted that Biden was a “major factor” in the Obama administration’s emphasis on reducing campus sexual assault. As vice president during that eight-year period, Biden led the administration’s It’s On Us campaign and visited colleges to promote awareness of the problem and advocate for prevention strategies, such as bystander intervention, or encouraging and training students, particularly young men, to intervene when they see a classmate in a dangerous situation. He wrote the 1990 Violence Against Women Act, which aimed to protect women from gender-based violence.

Aya Gruber, a law professor at the University of Colorado, Boulder, who writes about feminism and the criminal justice system, recalled when Biden said, “If a man raised his hand to a woman, you had the job to kick the living crap out of him,” during a White House event promoting men’s involvement in the fight against campus sexual assault.

Protecting women and strongly punishing those who commit sexual violence is “part of Biden’s brand,” Gruber said. His past rhetoric and policy positions on campus sexual assault offer some idea of how Biden’s Department of Education will address the issue. He has so far vowed to “immediately” put an end to the Title IX regulations issued by former secretary of education Betsy DeVos, which dramatically shifted how colleges respond to allegations of sexual misconduct.

The DeVos regulations were incessantly criticized and challenged in court by advocates for survivors of sexual assault, who took issue with mandates for colleges to require students who are opposing parties in sexual misconduct cases to be cross-examined by a third party “advocate” at campus hearings for sexual assault investigations. The regulations also exclude sexual misconduct that occurs off campus from oversight under Title IX and apply a more limited definition of sexual harassment.

Several women’s groups and organizations that support survivors’ rights, such as the advocacy group Know Your IX, want the DeVos regulations gone. They say students who are sexually assaulted or harassed were better off under the 2011 Title IX guidance issued by the Obama administration, when institutions were advised to investigate and adjudicate all reports of sexual misconduct, “regardless of where the conduct occurred.” The guidance, commonly referred to as the 2011 Dear Colleague letter, said that a single incident of sexual harassment could prompt a Title IX investigation and that institutions must use a preponderance of the evidence standard when determining a student or staff member’s guilt.

DeVos rescinded the 2011 guidance during her first months as education secretary in 2017. Biden has pledged to reinstate it. His plan to address violence against women published online says his administration will “restore” the 2011 guidance that “outlined for schools how to fairly conduct Title IX proceedings.”

Biden’s campaign website, which details his agenda for women’s issues, says the Education Department under DeVos has “rolled back the clock and given colleges a green light to ignore sexual violence and strip survivors of their civil rights under Title IX, guaranteeing that college campuses will be less safe for our nation’s young people.”

His administration will “stand on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld,” the comments on the website say.

Civil liberties groups and advocates for the rights of students accused of sexual misconduct are dismayed by Biden’s stated intention to reinstate the 2011 guidance. They argue that the guidance led to colleges violating free speech and due process rights. Supporters of the DeVos regulations, such as the Foundation for Individual Rights in Education and SAVE, a Washington, D.C., area-based organization that advocates for constitutional protections during college disciplinary proceedings, say the 2011 guidance was grossly unfair.

Edward Bartlett, founder and president of SAVE, said the 2011 guidance was ineffective at reducing sexual misconduct and infringed on student rights. He said the hundreds of federal and state lawsuits filed after the issuance of the 2011 letter prove it did not help those who report sexual misconduct or those accused of it, he said.

Bartlett noted that a Campus Climate Survey on Sexual Assault and Misconduct by the Association of American Universities found a slight uptick in rates of sexual assault at top colleges between 2015 and 2019, and reporting of incidents remained low throughout this time period. Two surveys were conducted, one in 2015, which involved 27 colleges, and another in 2019, in which 33 colleges participated. The 2019 survey found the overall rate of sexual assault was 13 percent for all students and nearly 26 percent for women undergraduates at those colleges, according to an AAU report about the data. There was a 3 percent increase in the rate of sexual assault among undergraduate women between 2015 and 2019 at the colleges that participated in the surveys, the AAU report said.

“Not only did they find no improvement, they found it got worse,” Bartlett said.

Melnick, the Boston College professor, said the AAU survey and other data available about the prevalence of campus sexual assault are not strong enough to conclude whether or not the 2011 guidance was effective. There isn’t any empirical evidence that suggests that Title IX guidance issued during the Obama administration made the issue worse, he said. But if the Biden administration intends to revert to the former guidance, it may soon have to provide data to support that decision, Melnick said.

“The current debate over evidence — inconclusive as it is — will loom larger in the future,” he said in an email.

In the years since the guidance, several federal appeals courts have also struck down parts of the Title IX processes that many colleges developed following the Obama administration’s guidelines, deeming them “unfair” and sometimes discriminatory against men.

Experts who study Title IX and advise institutions on how to implement the law said colleges would be better off if the Department of Education takes a forward-looking approach to combating campus sexual misconduct rather than reverting to the 2011 guidance.

Jake Sapp, a Title IX legal researcher for the Stetson University Center for Excellence in Higher Education Law and Policy, said court decisions that favored students accused of sexual misconduct were a direct response to the 2011 guidance, which didn’t set clear standards for due process.

The DeVos regulations rely heavily on these federal court opinions and went through a formal rule-making process that can’t simply be revoked, as some advocacy groups for sexual assault survivors are urging Biden to do, Sapp said. Even the most contested item in the DeVos regulations — the cross-examination requirement — has been backed by several appeals court decisions and will be applicable to colleges in those judicial circuits even if the Biden administration stops enforcing the regulations, he said.

“The administration can set a regulatory floor, but they can’t build a roof over what the court’s jurisdiction is,” he said. “They can’t say colleges can’t provide this due process protection when a federal court says that you already have to have that.”

Sage Carson, manager of Know Your IX, endorses halting enforcement of the DeVos regulations, but she said the challenges student survivors face have changed significantly in the decade since the 2011 guidance was issued and returning to it isn’t going to effectively address those new challenges.

“Survivors on campus are facing horrendous obstacles to getting support from their school that are nothing like the Obama administration was dealing with,” Carson said. “My fear is that the Biden administration will come in and say, ‘We’ve dealt with this issue before, we know how to do this,’ and not take the time to understand the needs of students right now in this unique moment.”

Carson described obstacles such as a “huge uptick” in students accused of sexual assault filing retaliatory countercomplaints or defamation lawsuits against their accusers. These actions can mean survivors do not receive the support they need from their college or end up in debt from legal fees, she said.

Colleges and students have also been through bouts of “whiplash” as they’ve had to make policy adjustments based on the political positions of the president in office, Carson said. Some institutions have been consistently “awful” on protecting students from sexual misconduct, but other institutions attempted to comply with the Trump administration’s requirements and experienced “confusion, frustration and a lack of resources,” Carson said.

The lack of clarity and conflicting policies and rhetoric has frustrated students and discouraged some from filing sexual misconduct reports, she said.

“There will be schools that are strained by this back-and-forth,” she said. “To restore confidence in survivors turning to their schools, this administration is going to have to be very transparent about what students can expect … This is going to be a tough, uphill battle.”

Peter McDonough, vice president and general counsel for the American Council on Education, said college administrators recognize that their institutions can’t simply go back to the 2011 guidance. There are new decisions by federal courts that many institutions must follow, new state laws that change how campuses respond to sexual misconduct and resolution agreements between the Education Department and individual colleges that outline how those colleges must improve their Title IX policies and procedures, McDonough said. The DeVos regulations are just one piece of the puzzle, and eliminating them doesn’t change how colleges must deal with sexual misconduct moving forward, he said.

College officials would appreciate “more flexibility” from the Biden administration — such as guidance that loosens some requirements of the DeVos regulations — but they also spent months pouring time and energy into adjusting their policies to meet the new standards during the coronavirus pandemic, McDonough said.

“We’re tired,” he said. “Don’t give us one more thing to do this academic year. Let us get our students back to as close as we can to normal.”

The Biden administration should begin the work of creating new Title IX regulations that strike a balance for all sides, including those who experience sexual assault, those accused of it and the college officials that are legally responsible for carrying out the procedures, McDonough said. What college officials are hoping for is a “thoughtful” look at how to amend or replace the DeVos regulations with what all sides feel is the fairest possible process, he said.

“Otherwise we’re going to boomerang for years,” McDonough said. “How are we going to get ourselves, as a broad community, to a place where we feel like what we’ve got is pretty fair? That rhetorical question needs to guide a fair amount of the decision making in this next administration.”

Sapp, who is also deputy Title IX coordinator at Austin College in Sherman, Tex., said Biden and the Education Department officials working under him should not focus on rhetoric painting the DeVos regulations as an “attack on survivors” and listen to more than just one line of thought on the issue. Sapp believes the DeVos regulations are a “good starting point” for Biden to build on, but that the politics surrounding them will deter Biden from publicly recognizing that.

“Part of what Biden has demonstrated is that he’s open to diversity of ideas and thought,” Sapp said. “That needs to be demonstrated in the ideas that he has on Title IX … If you’re going to put forward a Title IX regulation that’s going to stand the test of time, it’s going to have to have input from across the board.”

Gruber, the University of Colorado law professor, is not convinced there can be a compromise on Title IX.

“Whatever he does, somebody’s not going to be happy,” she said.

The Biden administration’s path to well-received Title IX requirements is further complicated by outstanding allegations of sexual misconduct against Biden. Some student leaders of college sexual assault prevention groups said the allegations made them feel conflicted about voting for Biden in November, which they felt they had to do in order to reverse the Trump administration’s actions on Title IX. But Carson, of Know Your IX, said that she and other survivors have not forgotten the story of Tara Reade, the woman who said she was sexually assaulted by Biden in 1993, and others who said he inappropriately touched them.

“That’s something that our team is grappling with every day as we approach this administration,” Carson said. “That’s something we’re going to remember moving forward. We should always be supporting equity and supporting survivors, not just when it’s convenient.”

Biden faces Title IX battle complicated by politics and his own history (insidehighered.com)

Categories
Department of Education Department of Justice Discrimination Law & Justice Legal Office for Civil Rights Title IX

Department of Education says schools can’t use ‘national statistics’ to justify women-only scholarships, programs

GREG PIPER – ASSOCIATE EDITOR, THE COLLEGE FIX

JANUARY 14, 2021

Don’t give ‘special status’ to outside groups with sex restrictions, either

Largely thanks to the efforts of University of Michigan-Flint economist Mark Perry, schools across the country are facing scrutiny from the Department for Education for offering programs and scholarships that exclude males from eligibility.

His flurry of Title IX complaints indisputably played a significant role in its Office for Civil Rights’ creation of two new “issue codes” last year to track complaints against “single sex campus programs” and “single sex scholarships.”

On Thursday, the Office for Civil Rights went a step further by releasing “technical assistance” on its interpretation of Title IX with respect to such programs and scholarships.

Much of the material is not new to people who follow Title IX complaints and resolutions, and the document explicitly tells institutions that it does not have “the force and effect of law” and is “not meant to bind the public or regulated entities in any way.” (The Obama administration, by contrast, explicitly threatened institutions for not following its nonbinding Title IX guidance.)

But for K-12 schools and colleges that have long acted as if Title IX didn’t apply to activities with the word “girls” in the title, and depictions of only females in their materials, the 11-page document makes plain that it does.

One of the most popular reasons for offering a female-only program or scholarship – supposed underrepresentation – is severely restricted under the feds’ interpretation.

While they can restrict eligibility by sex for “remedial or affirmative action” in “limited circumstances,” schools are still prohibited from using “sex-based quotas.” Even more sweeping, they cannot “rely on national statistics as evidence of limited participation.”

Rather, schools must “clearly articulate why the particular sex-based scholarship or program was necessary to overcome the conditions in its own education program or activity which resulted in limited participation therein“:

As part of this analysis, OCR evaluates whether the classification based on sex was supported by an “exceedingly persuasive justification,” based on a substantial relationship between the classification and an important governmental or educational objective.

Schools targeted with complaints will have to provide “a specific assessment of the facts and circumstances surrounding the scholarship or other program” to OCR. The office will analyze whether the “purported remedial discrimination” has any relation to “overcoming the effects of those conditions.”

It flatly warns schools that their sex-based scholarships justified as affirmative action “may never rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

Schools should also be wary of titles for scholarships and programs that are “reasonably perceived” as stating a “preference or restriction” based on sex. Otherwise they must “clearly state in their public-facing communications,” such as websites and recruiting materials, that such preference or restriction does not exist, despite the title.

OCR notes that it has reviewed scholarship applications and “awardee data, disaggregated by sex,” to discern whether schools have “communicated effectively” about their nondiscrimination policies.

Several sections in the question-and-answer format are answered “Generally, no” on the appropriateness of sex preferences and restrictions. One of them is whether schools can even advertise or promote third-party scholarships, such as by listing them on its website:

OCR expects that schools will take reasonable steps to verify that the sponsoring organization’s or person’s rules for determining awards do not, expressly or in fact, discriminate on the basis sex.

The guidance also cautions schools about providing “significant assistance” to third parties that offer “non-funded” advancement programs, such as fellowships, with sex preferences or restrictions.

Such assistance has historically been interpreted to include giving third parties “special status or privileges” not offered to “all community organizations,” such as by designating faculty sponsors or letting parties use campus facilities “at less than fair market value.” Simply listing a non-funded program on its website, however, is not “significant assistance.”

Some of the guidance is highly nuanced, particularly with respect to elementary and secondary schools. But other parts are direct and unambiguous, such as the section on sex-based restrictions on school facilities:

OCR has opened an investigation into whether a university that offered a designated “women’s only” workout space in its gym facilities violated Title IX by restricting that space to members of only one sex.

Read the guidance.

Department of Education says schools can’t use ‘national statistics’ to justify women-only scholarships, programs | The College Fix

Categories
Campus Department of Education Sexual Assault Title IX

Title IX Has Turned Universities Into Really Terrible Sex Police

By 

JANUARY 11, 2021

Title IX feminists seek to abuse the federal access law to institute policies that favor women — including inverting the presumption of innocence.

A Biden administration spells more controversy about Title IX, the federal equal access law that bans sex discrimination in schools receiving federal funds, but now used to address sexual misconduct — including allegations of criminal conduct like sexual assault and rape (variously defined). The theory is that such behaviors threaten access to education.

Democrats want to seem tough on sexual assault, of course, and Title IX is the tool, even as Joe Biden has dodged Tara Reade’s accusations that he once sexually assaulted her and has pledged to reverse former Title IX regulations put in place by President Barack Obama.

Almost every educational institution now has a Title IX office. Last year the National Association of Scholars visited a number of them, documented in a recently released report, “Dear Colleague.” It presents conversations with staff and analyses of institutional policies on discrimination and sexual harassment at six state universities.

It’s safe to say that Title IX is now unrecognizable as an equal access law in education. Instead, it is a sex monitoring and sex promotion law with the staff especially focused on (and arguably happy about) student sexual encounters gone bad, as their chance to meddle.

Office waiting areas featured pamphlets from Planned Parenthood, among others, with quotes like, “I didn’t want it to happen,” “I haven’t been hit…” and bowls of condoms with flyers explaining, “What is a flavored condom used for? If something is flavored, it’s meant to be tasted!” Partner offices include student health centers, many with counselors who explain matter-of-factly, “here, we’re all about student autonomy and pleasure, whether you’re a person with a penis or a vagina.”

Staffers who deal with Title IX are primarily comprised of females, most with degrees in women’s studies or gender-based violence. What’s more, of the 52 officials surveyed, only one had any actual courtroom experience where allegations of serious wrongdoing are routine. Yet one Title IX coordinator confirmed that most of her time is spent processing just such allegations of sexual misconduct. Unsurprisingly, students now call Title IX “the campus sex police.”

Students also say that the Title IX office violates the law in its rush to seek, find, and punish sex offenders. Accused students report that “fabricated evidence was withheld from me until the very last minute,” and that staff is trained to “presume guilt” in violation of due process basics. Some 600 students have sued their schools claiming that campus Title IX proceedings are, in essence, kangaroo courts.

To the credit of Education Secretary Betsy DeVos, she tackled this sticky wicket — not with informal guidance, as prior administrations had done, but with formal regulations according to the Administrative Procedure Act. This effort took three years and involved over 125,000 public comments. It culminated in the Title IX Final Rule, issued in May 2020, whose provisions turned out to be quite common sense and, in real courtrooms, would be every-day fare.

They require schools to presume innocence, for example, and to disclose all evidence and to allow live cross-examination through student representatives. Furthermore, if requested, these cross-examinations can take place in separate rooms so as to mitigate any trauma that face-to-face questioning might cause. Other supportive measures such as counseling, deadline extensions, and flexibility for schedules, work, and housing are required for all complainants.

Even so, Title IX feminists complained. “DeVos … is protecting attackers from being held accountable!” said one consultant. Indeed, they sued DeVos in federal court, alleging the Final Rule violated the APA, among other things. Such claims were defeated in Maryland and New York but remain pending in DC and Massachusetts.

What now? Chances are that one or both remaining courts will issue opinions on the final rule before a new administration can take any formal action. But a Biden Education Department may announce its intention to not enforce the rule, or its intention to start the rule-making process all over again to rescind it.

In any event, the reality is that Title IX practice is now a confused, even dangerous mess. It became so because some people wanted it that way.

For starters, Title IX was enacted as a civil rights law and was never intended to address crimes, especially violent ones such as rape and assault. Additionally, the words “assault” and “rape” have been re-defined at many schools to mean a sexual encounter where one party thought there was consent, but the other claims there wasn’t. Worse, 95 percent of these cases involve alcohol, according to Title IX staff, making both perceptions and memories foggy.

Many schools now have “affirmative consent” policies where explicit, verbal affirmation is to be obtained at every stage of sexual intimacy or the encounter constitutes assault, a standard repeatedly rejected by the American Bar Association. Many such incidents are about misunderstandings, not discrimination, and certainly not criminality. Yet Title IX administration has now effectively branded many students as criminals.

Second, allegations like these are a matter of state criminal law, not a federal law like Title IX, much less a matter of campus administration that varies from school to school. While far from perfect, our criminal justice system represents centuries of balancing the rights of the accused against those of the complainant and the public.

The rights contained in due process, for example, date to the Magna Carta of 1215, ensuring that even lowly subjects (now, citizens) had natural rights that even kings (now, the government) must respect. That Title IX feminists, however, felt free to sweep all this away by creating a parallel, quasi-criminal justice system on campus speaks volumes.

The real, unstated story behind Title IX is the mindset of these feminists. In essence, they’re angry at the biological females are at greater health risk from unmarried sex. Pregnancy is another possibility, of course, that obviously affects females more than males.

Title IX feminists see this reality as inherently unfair and, to their mind, it should be “fixed” by policies that favor women — including the inversion of the centuries-old presumption of innocence in cases of sexual misunderstanding. So what if a few guys get railroaded in the process? It’s a small price to pay back for millennia of imagined injustice inflicted by biological reality.

Of course, anger at reality is a truly foolish and unproductive way to go through life, and no amount of policy is ever going to satisfy or “fix” it. Let’s hope the new Title IX Rule survives and that campus Title IX offices return their focus to equal access in education instead of social engineering between the sexes. Our divided country could use it.

 

Teresa R. Manning, JD, is Director of the Title IX Project at the National Association of Scholars. She has taught at Scalia Law School of George Mason University, the Notre Dame Graduate School of Christendom College, and served as Deputy Assistant Secretary at the Department of Health and Human Services in the Trump Administration.

Title IX Has Turned Universities Into Really Terrible Sex Police (thefederalist.com)