Author: Edward Bartlett

How Will Title IX Policies Affect Autistic Students?

By David Golub

May 9, 2021

Dating and relationships can be a challenging aspect for life for many people, but this is especially true for those who are on the autism spectrum.  In addition to the uncertainties that all people face, autistic individuals must confront certain additional questions: Will anyone want to date an unusual person like myself?  How will the physical aspects of a romantic relationship interplay with my sensory integration issues, and will my partner be understanding of any special needs that I may have?  Will she still love me when she learns that I’m autistic?

When the Department of Education’s 2011 “Dear Colleague” letter interpreted Title IX to require that schools investigate and adjudicate allegations of sexual assault, many expressed concern that innocent men had been placed at greater risk of being punished for crimes that they did not commit.  For those of us concerned with issues relating to autism, this begs the question of whether autistic students are disproportionately affected.  While no research has yet been done on this question, there is nonetheless good reason to believe that autistic students are at greater risk than their neurotypical counterparts.

There is one case documented in the press where an autistic student was punished inappropriately.[1]  In 2015, Brian Ferguson, then a student at Navarro College in Texas, saw a woman whom he mistakenly believed to be his friend, even though she was in fact a stranger.  He hugged her and kissed the top of her head.  The school treated this as a sexual assault and kicked him out.

Those unfamiliar with autism will likely not recognize what appears to have happened in this case.  Many autistic people have a neurological deficit known as prosopagnosia in which a person’s ability to recognize and remember the faces of others is severely impaired or, in the most extreme cases, completely missing.  It is not the fault of a person with prosopagnosia if they fail to recognize someone or mistakenly believe that a stranger is someone that they know.  This case should have been treated as an innocent misunderstanding, not as a violent crime.  The school’s failure to do so had the effect of discriminating against Ferguson on the basis of his disability.

There is also good reason for concern that the affirmative consent policies used by many academic institutions may have a disparate impact on autistic students.  Under these policies, both parties must explicitly express their consent prior to any sexual act in order for it to not be held to constitute sexual assault.  While the exact definition of affirmative consent may vary from institution to institution, many policies require that consent must be “enthusiastic”[2][3] in order to be valid or contain provisions that a verbal “yes” does not constitute valid consent if it is contradicted by nonverbal cues.[4]  While supporters of affirmative consent often call it “Yes Means Yes,” this label is highly misleading as “yes” may actually mean “no” if the nonverbal communication does not match.  Sexual consent educator Jaclyn Friedman asserts that “men (and women!) are perfectly capable of understanding social cues, even ones where someone is saying ‘no’ without using that actual word.”[5]

The problem is that this claim simply does not hold for many people on the autism spectrum.  Autistic individuals often have impairments in various forms of nonverbal communication such as facial expressions, tone of voice, and body language.  The semantic and pragmatic aspects of language, sometimes known more informally as “reading between the lines,” are also often an area of challenge.  As such, if a woman says “yes” but signals nonverbally or through the context that she really means “no,” an autistic man may not be able to tell the difference and may genuinely believe that he has consent.  To treat him as guilty of sexual assault in such cases is an injustice.

In seeking to ensure that autistic students are treated fairly under Title IX, it is important to recognize that not all people on the autism spectrum are diagnosed.  While the stereotypical image of autism is a child with a severe developmental disability, often one who is unable to talk, many autistic people are high-functioning and do not receive a diagnosis until adulthood, sometimes many years or even decades into adulthood.[6]

Prosopagnosia, the face recognition deficit discussed above, is not unique to autistic people.  Research has found that as many as 1 in 50 people are born with this deficit, and the overwhelming majority remain undiagnosed.[7]  As such, if we wish to ensure that people with these disabilities are not thrown under the bus, relying on special treatment on the basis of a diagnosis simply won’t cut it.  Our Title IX policies that are used across the board should be designed in a way that won’t subject individuals to being treated as criminals on account of autistic traits.

The Department of Education has initiated a rulemaking process to modify the regulations promulgated under the prior administration.  These regulations substantially improved due process protections, and it is feared that that the changes will bring back many of the unfair policies that were in use under “Dear Colleague” letter.  If so, these changes would be to the detriment of autistic students.

If we are serious about ensuring that all students have equal opportunity to learn, then the needs of autistic students must be taken into account.  This will be best accomplished by further strengthening due process protections.  Schools should be prohibited from using the affirmative consent standard, and they should be required to use a definition of sexual assault that is narrow enough to distinguish between a violent crime and an innocent mistake.  Returning to the failed policies of the past would be a huge step backward.

Citations:

[1] https://www.nbcdfw.com/news/local/student-with-autism-kicked-out-of-college/2101622/

[2] https://uhs.berkeley.edu/sites/default/files/hp-consentdiscussionguide.pdf

[3] https://health.columbia.edu/content/consent

[4] https://www.wcsu.edu/womenscenter/definition/got-consent/

[5] https://www.vox.com/first-person/2018/1/19/16907246/sexual-consent-educator-aziz-ansari

[6] https://www.cnn.com/2008/HEALTH/conditions/03/28/autism.essay/index.html

[7] https://news.harvard.edu/gazette/story/2006/06/face-blindness-disorder-may-not-be-so-rare/

Removing or Weakening the Presumption of Innocence in Title IX Proceedings Would Institutionalize ‘Cancel Culture’

Raul Jauregui, Esq.

May 5, 2021

The presumption of innocence, currently enshrined in US law when we face an accusation, makes it fair for everyone because we can state our defense.  This includes any victims, be they man or woman.  In the case of the “DeVos Title IX rules” (Rules), that fairness currently means that when a woman accuses a man of sexual misconduct, and then the man turns around and tells the school “not so, it was actually she who did to my body things I did not permit,” both the woman and the man stand on equal footing to prove their story.  Under the Rules both man and woman can investigate, evaluate, and tell their side of the story because they are both presumed innocent.  That is precious.

But President Biden’s possible rollback of the Rules seeks to take away from all students, be they man or woman, black or white, gay or straight, that precious fairness by assuming guilt according to who accused whom first, that is, by writing “cancel culture” into the law.  That is wrong.  Cancel culture is a private act: People can stop talking to each other in protest all they want, but we cannot pass a law that prevents anyone to tell their side of the story to a school.  Incorporating cancel culture into the Title IX rules by assuming guilt formally silences only one side.  If we do that we engage in discrimination.

I present this fictional scenario, based on my experiences as a Title IX lawyer. to illustrate the risk that cancel culture’s institutionalization of the assumption of guilt would pose for educational fairness:

Because of a sordid history of childhood sexual abuse, Carmela Otolumbi, suffers from Dissociative Identity Disorder (DID) (1) and still got admitted to Seaside State University.  But her school’s Title IX staff and classmates do not know she has DID—they only see “Carmela” the 19 year old overachiever, not her DID twin, “Carmela2.0” the 19 year old cruel punisher.  So when Carmela2.0 accuses Pedro Juarez, another student at Seaside, of sexual assault, everyone believes her and Pedro ends up back home, angry, and suspended.  Classic for DID patients, Carmela, the overachiever, suddenly thrives in the attention she receives from everyone.  DID overachievers, after all, deserve what Carmela now has and did not get as a child: #survivor status, special school funding, secure housing of her choice, and the respect of all the women on campus. #respect. Pedro, meanwhile, has gone from pre-med student to car washer.  His life is over. Carmela starts public speaking about her assault experience, about her #seasiderapist (she baptizes him that, hashtag and all), and about how she experiences daily triggers that re-traumatize her, particularly because Pedro remains active on social media.

Carmela2.0, the cruel punisher one, in a classic DID way, cannot stand Pedro’s Insta photos in Cancun.  So she takes her rage to Tiktok and starts a campaign to cancel Pedro. #whodidyourapeinCancun?  Carmela2.0 goes nuclear in her attempt to expel Pedro from Seaside and to, while she is at it, get everyone at Seaside State fired.  #Seasideenoughrape. Carmela2.0, in a DID attack, starts on-line fund raising, publishes her sad fiction on Medium, receives over $10,540.00 for her legal fund, has a rally which she live streams on Instagram, blogs, and makes TikTok cameos.  She’s #woke. Carmela 2.0 does everything she can to cancel Pedro.  And she expects Title IX to do the same: Carmela2.0, as any DID punisher would, demands that everyone believe her word that Pedro is guilty and that this is #theT9law to protect a #TitleIXsurvivor.  Of course, Carmela2.0 never shares as part of her cancel campaign, that Pedro says she raped him, or that she suffers from DID.  Cancel culture is so powerful, though, that Carmela2.0 grins from ear to ear as her followers on Insta explode, #ally and as more and more students at Seaside call out the culture of tolerance that led to her “exploitation” and sign on-line petitions to expel Pedro #expelCarmela’srapist, and to fire everyone in Seaside’s staff.  Why not?!  I mean, #metoo.

Both Carmelas have now cancelled Pedro’s life at Seaside State.  On line, both Carmelas have done away with Pedro’s presumption of innocence.  Because #Seasiderapist brings up Pedro’s Cancun photos, Google tags him, so he moves to a secret home.  Pedro has been found guilty and convicted on social media.  All his friends block him on Insta.  His Tweeter feed is overwhelmed with slurs.  Year-long Snaps with ex friends suddenly end.  Pedro’s Seaside roommate and best witness also drops out of every single chat group and snap because cancel culture makes him the #Seasiderapist #enabler—he, the kid studying religion.  And Seaside State does nothing to cure Pedro’s on–line re-victimization even though Pedro and his girlfriend complain to Seaside State’s administrators, and to the local district attorney, that this is Carmela2.0’s conspiracy to violate their civil rights.  Twitter refuses to suspend Carmela’s @Seasiderapesurvivor.

Emboldened, both Carmelas become Title IX activists.  They blog and Tiktok as hard as they can that “their #survivor experience” demands that the Rules must be changed to assume that Pedro is guilty, and that Seaside State has not punished him enough.  This time the Carmelas start fund raising on line, to sue to change the Rules.

What Pedro, his roommate, his girlfriend, and some Seaside State employees just experienced from both the Carmelas, “cancel culture” “is a modern form of ostracism in which someone is thrust out of social or professional circles – whether it be online, on social media, or in person. (2). Cancel culture turns off the light and makes it all dark.  But most importantly, cancel culture is a private choice—akin to shopping on Amazon or not, and not a public rule—akin to you must have a driver’s license or you can’t drive. This private/public distinction is why what the Carmelas now want, to incorporate cancel culture into the Title IX rules, is unfair: It transforms cancel culture, a private, harsh remedy, into an unconstitutional governmental act.  That is absurd.  Yet, sadly, cancel culture’s most direct impact on the Title IX rollback activism can be seen on real, Carmela-like calls to eliminate the Rules’ presumption of innocence.  That is, in our example, to pass a law that takes away Pedro’s ability show the evidence, tell his story, and rescue his name from cancellation, to then regain his career, and his life.

Cancel culture’s call to stop the presumption of innocence takes away the Title IX guarantee that everyone has the right to an education that is free from sexual hostility.  Incorporating cancel culture into the Rules has many fatal flaws:  It assumes that all men are indeed guilty. (They are not).  It makes no room for mistakes, revenges, confusions and staff ineptitude. (These happen all the time).  It rushes to judgment in a way no different from the summary trials of any authoritarian dictatorship.  Cancel culture as privately applied to the virtual reality world in which students facing sexual misconduct are shamed, makes them guilty, ON THE INTERNET.  But to then take that insolence and make it law, which eliminates the precious presumption of innocence so natural to life in the US, violates our social norms.  Cancel culture takes the worst tool of authoritarianism—coercion—and, should it be incorporated into the Rules, as the Carmelas want, would use this coercion to replace one of the best attributes of our democracy—the presumption of innocence.

Even through this fiction that I just wrote out for you, in an environment limited to Carmela’s mental illness and her smart phone’s screen,  you see how cancel culture brings up the worst in us.  What Carmela has not yet grasped is that in canceling Pedro, she raped him.  What we all need to agree on is that under the Rules for Title IX Pedro, while innocent to begin with, is presumed innocent as a matter of law.  To change or weaken that guarantee in the form Rules that institutionalize “cancel culture” by rejecting the assumption of innocence, by granting complainants the power to brand their respondents “guilty” just because that’s the #staywoke thing to do, turns the United States higher education scene into a Gulag, it lets the inmates run the insane asylum, and puts everyone—including vulnerable gay students and students of color at risk.

The current Title IX regulation only barely makes the process fair for respondents of allegations of sexual misconduct.  To take away the fairness in those rules by presuming guilt makes “cancel culture,” a private remedy, the official standard for education law in the US.  That is wrong.

Footnotes:

• DID is no joke. “She is among a surprising 1 percent of the population with this psychiatric condition, formerly called multiple personality disorder, which was famously portrayed decades ago in films like “The Three Faces of Eve” and “” It mostly affects women.”  Jane E. Brody, A Documentary Explores Dissociative Identity Disorder, The New York Times, March 22, 2021 available at:  https://www.nytimes.com/2021/03/22/well/mind/dissociative-identity-disorder-busy-inside.html
• Those who are subject to this ostracism are said to have been “cancelled”. The expression “cancel culture” has mostly negative connotations and is commonly used in debates on free speech and censorship”.