Author: Edward Bartlett

One-Third of Wrongful Convictions Involve Police Manipulation of Evidence

Post author By Edward Bartlett
Post date January 21, 2021

One-Third of Wrongful Convictions Involve Police Manipulation of Evidence. With ‘Victim-Centered’ Investigations, It May Get Worse.

Center for Prosecutor Integrity

January 21, 2021

The National Registry of Exonerations has catalogued every exoneration in the United States since 1989. Recently the NRE published a report on the long-standing problem of police misconduct. Titled, “Government Misconduct and Convicting the Innocent,” the document is based on the review of 2,400 exonerations (1). Overall, the analysis found that 35% of the cases involved police officer misconduct and 30% implicated prosecutorial misconduct.

The document reveals that police actions that lead to a conviction of an innocent person typically involve the manipulation of evidence in order to increase the likelihood of a conviction. The manipulation of evidence by police officers falls into five categories (some cases fell into more than one category):

Witness Tampering — 13% of wrongful convictions

Procuring false testimony — Inducing a civilian witness to testify to facts the officer knows the witness did not perceive (3% of wrongful convictions)
Tainted identifications – Deliberately inducing a witness to identify a suspect during a lineup, whether the witness recognizes that suspect or not (7% of wrongful convictions)
Improper questioning of a child victim – Repeated, insistent, and suggestive questioning of a child, precluding the child from denying that he or she was a victim of sex abuse (3% of wrongful convictions)

Misconduct in Interrogations – 7% of wrongful convictions

Actual or threatened violence
Sham plea bargaining and other lies about the law
Threats to relatives and other third parties

Fabricating Evidence – 10% of wrongful convictions

Fake crimes – Making false claims as ordinary lay witnesses, saying the defendant committed a crime that never happened, often involving the planting of contraband (5% of wrongful convictions)
Forensic fraud – Presenting false evidence against the defendant, concealing/distorting true evidence that might have cleared them, or planting false evidence (3% of wrongful convictions)
Fabricated confessions – Making up confessions by the defendants that in fact did not occur (2% of wrongful convictions)

Concealing Exculpatory Evidence – 7% of wrongful convictions

Impeachment of prosecution witnesses:
- Incentives provided to testify
- Inconsistent statements
- Criminal records and histories of dishonesty
Substantive evidence of innocence:
- Forensic tests
- Alternative suspects
- Evidence that the defendant did not commit the crime

Perjury at Trial – 13% of wrongful convictions

False statements about the conduct of investigations
False statements about witness statements

Overall, there were only small differences in percentages of official misconduct for White versus Black exonerees. But for murder cases, 78% of Black exonerees, compared to 64% of White exonerees, experienced official misconduct. The misconduct disparity was even greater for drug crimes: 47% among Blacks and 22% for Whites.

As noted above, misconduct by police officers contributed to 35% of the 2,400 wrongful convictions. The NRE report reveals that virtually all of the cases consisted of actions designed to manipulate the evidence to increase the likelihood of a conviction. A majority of the cases involved the direct manipulation of evidence – fabricating and concealing evidence, and making false statements at trial. The remaining minority of cases involved the indirect manipulation of evidence by means of witness tampering and misconduct in interrogations.

What are prospects for the future?

In recent years, activists have been promoting the use of so-called “victim-centered” approaches, both in the criminal justice system and on college campuses. A recent announcement from the International Association of Chiefs of Police, for example, makes the claim that “victim-centered” approaches “can support victim recovery and engagement with the criminal justice system” and “promote enhanced victim and community safety while helping law enforcement solve and prevent crime.” (2)

Despite the feel-good aura of this gauzy description, the reality of “victim-centered” approaches is that they compromise investigative impartiality, bias evidence against the defendant, and predispose to wrongful convictions. Victim-centered methods (3):

Presume the guilt of the defendant and refer to the complainant as a “victim”
Avoid asking probing or detailed questions in order to not “retraumatize the victim.”
Reflexively attribute inconsistencies in the complainant’s statements to life-threatening trauma.
“Cherry-pick” the evidence in order to increase the likelihood of a finding of guilt.
Write the investigative report in a way to portray the sexual contact as non-consensual.

One Department of Justice report, “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence,” went so far as to urge victim-centered investigations to hand “control of the process back to the victim” (p. 9) and even allow the complainant “to request certain investigative steps not be conducted” (p. 13). (4) The ill-considered report was later removed without explanation or notice. The original DOJ press release with the defunct link can still be seen online (5).

If we want to curb the police manipulation of evidence and ensuing wrongful convictions, we need to discourage the use of “victim-centered” approaches, and work to restore police investigations that are impartial, balanced, and fair (6).

Citations:

Title IX Title IX Equity Project

PR: New ED Directive Says Universities Must End Sex-Discriminatory Scholarships and Programs

Post author By Edward Bartlett
Post date January 17, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New ED Directive Says Universities Must End Sex-Discriminatory Scholarships and Programs

WASHINGTON / January 18, 2021 – The U.S. Department of Education (ED) has just released a new guidance that clarifies the Title IX ban on school scholarships and programs that discriminate on the basis of sex (1). The document, titled, “Questions and Answers Regarding OCR’s Interpretation of Title IX and Single Sex Scholarships, Clubs, and other Programs,” was released on Thursday.

The directive affirms the general principle that colleges should not impose sex-based preferences or restrictions, stating “a school may not administer scholarships, fellowships or other forms of financial assistance that impose a preference or restriction on the basis of sex, with limited exceptions.” (Question 3)

The document goes on to clarify that colleges generally may not:

Use a program title or description that implies a preference or restriction based on sex, such as the “Center for Women and Gender Equity Non-Traditional Scholarship” (Question 5)
Advertise or promote third-party scholarships, fellowships, or other forms of financial assistance that impose a sex-based preference or restriction (Question 6)
Separate or exclude individuals on the basis of sex from academic or extracurricular activities, with the exceptions of programs involving contact sports, ability grouping in physical education classes, and choruses. (Question 10)
Allow a school-recognized club or other program use a name that implies a sex-based preference or restriction, such as a student chapter of the Society of Women Engineers (Question 11)

The guidance states that a university may offer sex-specific financial assistance as part of a remedial action effort, but only if the school is able to “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.” (Question 4)

In anticipation of the new directive, George Washington University ordered 23 student groups to amend their constitutions to comply with the school’s nondiscrimination policy. These groups include Girls Who Code and female-only service groups (2).

Over the past two years, the SAVE Title IX Equity Project has reviewed the websites of 346 universities and colleges in all 50 states and the District of Columbia to identify illegal sex-specific scholarships. Overall, the review found that 68.5% of universities offered scholarships that discriminate against male students (3).

The Office for Civil Rights currently has 228 investigations underway to remedy these Title IX violations (4). A number of the institutions already have removed their discriminatory programs and scholarships (5).

Links:

Trauma Informed Wrongful Convictions

Trauma-Informed: A Cancer on Our Nation’s Legal System

Post author By Edward Bartlett
Post date January 14, 2021

SAVE

January 14, 2021

In recent years, a trendy new investigative approach has been pushed both on college campuses and in the criminal justice system. Called “Trauma-informed,” it claims that sexual assault and domestic violence victims are so traumatized by the experience that they are unable to provide a coherent account of the assault.

Which means that every allegation must be taken at face value as truthful, and investigators are not supposed to challenge or question their statements. And every complainant is called a “victim.”

But “trauma-informed” is factually dishonest, because researchers have found that victims of trauma often have an enhanced recall of the details of the event. “Trauma-informed” ideology also eliminates the presumption of innocence, and turns investigators into therapists and social workers. This leads to wrongful findings of guilt.

Nonetheless, trauma-informed activists continue to push forward. Recently the International Association of Chiefs of Police issued a solicitation to do trauma-informed training, making the misleading claim that, “Victim-centered, trauma-informed approaches to crime can support victim recovery and engagement with the criminal justice system.”

Let’s all speak out on the dishonesty behind the “trauma-informed” movement. Contact the IACP and let them know what you think. Here’s the link: https://www.theiacp.org/contact-us

Please try to be polite.

Domestic Violence False Allegations

New Incentives to Falsely Accuse in NY

Post author By Edward Bartlett
Post date December 28, 2020

NY Adds a New Factor to Consider for Equitable Distribution: Domestic Violence

On April 3, 2020, tucked away in a bill largely addressing the New York State budget for the 2020-2021 fiscal year, the Legislature amended Domestic Relations Law (DRL) §236B(5)(d) by adding a new factor a court must consider in distributing property between divorcing spouses. 2020 NY Senate-Assembly Bill S-7505-B, A-9505-B. The law adds domestic violence as a factor and mandates that the court consider “whether either party has committed an act or acts of domestic violence, as described in [Social Services Law §459-a] against the other party and the nature, extent, duration and impact of such act or acts.” DRL §236B(5)(d)(14).

As admirably well-intentioned as this amendment is, it represents a significant departure from current law, which, absent “egregious” misconduct, has principally been fault-neutral since the advent of equitable distribution 40 years ago. It will have repercussions for the courts, practitioners, and litigants.

Source: https://www.law.com/newyorklawjournal/2020/07/24/domestic-violence-and-equitable-distribution-implications-of-the-amendment-to-drl/?slreturn=20201128110515

Domestic Violence

Need to Remove $40M ‘Pork’ for Transitional Housing

Post author By Edward Bartlett
Post date December 23, 2020

Does Repeating a Lie 1,000 Times Make it the Truth?

Need to Remove $40M ‘Pork’ for Transitional Housing

Coalition to End Domestic Violence

December 23, 2020

On March 23, the National Task Force to End Sexual and Domestic Violence issued an Alert with this startling coronavirus claim: “Survivors of domestic violence and sexual assault are facing extreme danger and risk.”

Even though the Alert did not provide any evidence to support its claim, the CARES Act, signed into law just four days later, included $45 million for transitional housing for domestic violence victims.

But the predicted abuse catastrophe never happened. Four separate studies concluded that overall, there was no increase in domestic violence, and some cities saw a significant decrease:

The National Commission on COVID-19 and Criminal Justice concluded, based on reports from 13 cities, “No significant change in domestic violence over the previous year.”[1]
The Marshall Project found declines in domestic violence cases in Chicago, IL, Austin, TX, and Chandler, AZ, ranging from 13% to 23%.[2]
The Coalition to End Domestic Violence compiled police reports from 33 police departments around the country, which revealed steady numbers of domestic violence calls in 19 departments, small increases in three departments, and decreases in 11 jurisdictions.[3]
The Major Cities Chiefs Association reported a 16% decline in rapes in large cities during the first 9 months of 2020, compared to 2019.[4]

Despite these reports, countless media accounts continued to promote the COVID-abuse myth, sounding the constant alarm of an imminent “spike” in domestic violence and sexual assault. Even lawmakers were fooled by the hoax.[5]

The credibility of the claims was cast into further doubt because they never mentioned the existence of the 4.2 million male abuse victims, compared to 3.5 million female victims, each year (based on CDC numbers).

The bill that was approved by Congress on Monday included $40 million for transitional housing (page 168).

Commentator Corrine Barraclough reveals, “The myth that domestic violence is surging in lockdown will become one of the biggest lies the gendered narrative leans on for additional funding.”[6]

We can’t allow this pernicious lie to continue. Congress needs to remove the $40 million for this wasteful domestic violence program.

Citations:

[1]https://cdn.ymaws.com/counciloncj.org/resource/collection/D26974EF-0F75-4BDE-ADE7-86DA0741DC49/Impact_Report_-_Crime.pdf

[2] https://www.themarshallproject.org/2020/04/22/is-domestic-violence-rising-during-the-coronavirus-shutdown-here-s-what-the-data-shows

[3] http://endtodv.org/pr/lawmakers-should-not-be-fooled-by-bogus-claims-of-a-domestic-violence-surge/

[4]https://www.majorcitieschiefs.com/pdf/news/mcca_violent_crime_report_2020_and_2019_jan1tosept30.pdf

[5]https://axne.house.gov/sites/axne.house.gov/files/Axne%20Ernst%20DV%20Funding%20Letter%206.4.20.pdf

[6]https://www.facebook.com/search/top/?q=corrine%20barraclough&epa=SEARCH_BOX

Campus Title IX

How the New Title IX Regulation Benefits Sexual Assault Complainants

Post author By Edward Bartlett
Post date December 10, 2020

How the New Title IX Regulation Benefits Sexual Assault Complainants

SAVE

December 12, 2020

Opponents of the U.S. Department of Education’s impending new Title IX regulation fear a huge setback in complainant’s rights. The National Women’s Law Center, a survivor advocacy organization, views the proposed regulation as radically weakening the department’s enforcement of Title IX protections against sexual assault and other forms of sexual harassment in schools. (1)

A strong argument can be made that the new Title IX regulation will benefit sexual assault complainants. (2) Accusers will have far more power to choose alternative paths of resolution, not be bound by their institutions’ rigid rules. Definitions of sexual harassment and supportive measures will be clear and reasonable. Complainants will be able to challenge the credibility of the respondent’s version of events via cross-examination.

In the spirit of empowering complaints with confidence, here are some of the ways the new Title IX regulation will benefit all complainants, the majority of which are women:

Available remedies
- Remedial action
  - Complainants will be assured if they are not satisfied with the actions of their institution, they can file a complaint with OCR, and if OCR finds the institution has violated these regulations, OCR will mandate remedial action.
Effect of other requirements and preservation of rights
- Constitutional protections
  - Complainants’ Constitutional rights are protected, including all rights under the First, Fifth, and Fourteenth Amendments.
Designation of coordinator, dissemination of policy, and adoption of grievance procedures
- Designation of coordinator
  - Complainants will know the identity and contact information of their institution’s Title IX Coordinator.
- Adoption of grievance procedures
  - Complainants will be assured of a prompt and equitable response to and timely resolution of their complaints.
Definitions
- Formal complaint
  - Complainants will sign a document upon filing a formal complaint. This will be evidence that they initiated a formal complaint, in case they choose to file a complaint with OCR for institutional negligence or non-compliance with the regulation.
- Sexual harassment
  - Complainants will be assured of protection against sexual harassment by faculty and staff.
  - Complainants will be assured that sexual conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution.
- Supportive measures:
  - Complainants will receive free supportive measures before or after filing of a formal complaint, or even when no formal complaint is filed.
Recipient’s response to sexual harassment
- General
  - Complainants will be assured their institution will respond to a formal complaint. No more deliberate indifference by institutions.
- Specific circumstances
  - Complainants will be assured that complaints about serial perpetrators will be investigated.
  - In cases where the complainant chooses not to file an initial formal complaint, but takes advantage of supportive measures, the complainant reserves the right to file a formal complaint at a later time.
- Emergency removal
  - Complainants will be assured that respondents that are deemed an immediate threat to safety will be removed from campus.
Grievance procedures for formal complaints of sexual harassment
- Basic requirements for grievance procedures
  - Complainants will be assured they have the right to see all evidence and that all relevant evidence will be evaluated.
  - Complainants will be assured of no conflict of interest or bias in persons involved with evaluating the formal complaint, and that all parties involved will be properly trained.
  - Complainants will be assured of a reasonably prompt conclusion of the grievance process, which still allows for delays for good cause.
  - Complainants will be properly informed of the appeal process.
  - Complainants will understand the range of available supportive measures.
- Investigations of a formal complaint
  - Complainants will not be responsible for proving perpetrator’s responsibility.
  - Complainants will be allowed to present witnesses and inculpatory and exculpatory evidence.
  - Complainants will not be restricted from discussing the allegation.
  - Complainants may have an advisor of their choice, and the advisor may participate in the proceedings per recipient restrictions equal to each party.
  - Complainants will be allowed to cross-examine their alleged perpetrator, and challenge the alleged perpetrator’s credibility.
  - Complainants’ previous sexual behavior or predisposition is not allowable evidence.
  - Complainants do not need to be in the same room as the alleged perpetrator.
  - Complainants will get a copy of the full investigative report at least 10 days prior to a hearing or determination regarding responsibility.
- Determination regarding responsibility
  - Complainants will be assured a neutral party will be the decision-maker.
  - Complainants will have written documentation of all steps taken in the adjudication process, in the event they choose to file an OCR complaint or lawsuit.
  - Complainants will be assured the determination will be based on facts with a clear rationale for the institution’s actions, and that remedies provided will be designed to restore or preserve access to their education.
- Appeals
  - Complainants have the right to appeal, if that right is available to the respondent.
  - Complainants will be assured the appeal decision-maker has not been previously involved in the case.
- Informal resolution
  - Complainants can seek an informal resolution if desired.
- Recordkeeping
  - Complainants will be assured relevant records will be maintained in the event they choose to file an OCR complaint or lawsuit.

Survivor advocacy organizations should embrace and endorse the benefits of the new Title IX regulation. They should focus on complainants’ empowerment upon implementation of the new rule.

Citations:

Campus Sexual Assault Sexual Harassment Title IX

PR: Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

Post author By Edward Bartlett
Post date November 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

WASHINGTON / November 18, 2020 – A recent SAVE survey, conducted by YouGov, shows a strong majority of Americans support due process for college students accused of sexual offenses. The survey of 2,608 adults, representative of the U.S. population, reveals the following:

Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves. Agree: 81%
Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system. Agree: 68%
Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime. Agree: 75%

The survey also found that 68% of respondents said this statement, “Allegations of sexual assault on campus should be primarily handled by the state or local police,” comes closer to their opinion, compared to the statement, “Universities should take a leading role in investigating allegations of sexual assaults on campus.”

The recent survey was designed to replicate a 2017 survey conducted by the Bucknell Institute for Public Policy, which used the same questions and reported nearly identical results to the four questions listed above (1).

The Bucknell survey also queried, “Students accused of sexual assault on college campuses should have the right to cross-examine their accusers.” The new Title IX regulation only allows an intermediary to ask questions of the complainant, not the accused, so this question is no longer relevant to current campus policies.

Fieldwork was undertaken November 12-16, 2020. The survey was carried out online. The survey results are representative of all U.S. adults, aged 18+. This survey was conducted using an online interview administered to members of the YouGov Plc panel of individuals who have agreed to take part in surveys. The full survey results can be viewed online (2).

To date, federal and state judges have issued 193 decisions favorable to accused students (3). In a recent case involving Rensselaer Polytechnic Institute, Judge David Hurd utilized strong language to chastise RPI’s use of a double-standard. The court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” The plaintiff presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded (3).

In recent years, mistreatment of both complainants and the accused have resulted in campus disciplinary committees being derided as “Kangaroo Courts.” (5) This week SAVE is launching a new campaign titled “Save Due Process on Campus.” (6) The goal of the campaign is to assure the incoming Biden Administration retains and vigorously enforces the new Title IX due process regulation (7).

Links:

Campus Sexual Assault Sexual Harassment Title IX

Students accused of non-Title IX misconduct should get fair hearings, too

Post author By Edward Bartlett
Post date November 12, 2020

Students accused of non-Title IX misconduct should get fair hearings, too

by Susan Kruth

November 12, 2020

Students sometimes ask why FIRE spends so much time making sure students accused of sexual misconduct receive fair hearings. They’ve noticed that over the past decade, a lot of our work has focused on the interplay between Title IX and due process. But things weren’t always this way. While FIRE has always been on the front lines of the battle to ensure students accused of misconduct are given a meaningful opportunity to defend themselves before they are punished, our biggest early due process case centered around a Facebook post about a parking garage — it had nothing to do with sexual misconduct at all. FIRE started focusing more on fundamental fairness in sexual misconduct disciplinary procedures about a decade ago, when colleges and universities, under the direction of the federal government, started throwing away procedural safeguards specifically in sexual misconduct cases and not in other cases.

Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves.

This year, the Department of Education finally mandated that schools bound by Title IX (almost all colleges and universities nationwide) guarantee students accused of sexual misconduct under Title IX many critically important procedural safeguards to ensure they are not punished without due process. So what now?

FIRE’s goal was and is not that students accused of sexual misconduct be treated more fairly than students accused of other misconduct. Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves, including the right to a presumption of innocence, information about the charges and the evidence against them with time to prepare before the hearing, and a live hearing with an opportunity to cross-examine witnesses. Federal regulations now require that students facing discipline under Title IX are afforded these protections. This is a solid advance for campus justice, but schools owe students an explanation if they’re not going to treat non-Title IX cases with the same care with which Title IX cases will be handled going forward.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university.

As suggested by the Supreme Court of the United States in Goss v. Lopez, the formality of school disciplinary procedures required to achieve due process depends on what’s at stake. This factor — not whether alleged misconduct is sex-based — should be key in determining what kind of safeguards against unjust punishment a student is afforded. Case law in recent years has affirmed that where students’ educational careers may be derailed, robust safeguards like those now required by Title IX regulations are integral to a fundamentally fair process. And, of course, it would be just as reasonable to suspend or expel a student for creating a hostile environment based on race or for assaulting another student in a non-sexual context as it would be to suspend or expel them for sexual misconduct.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university asking it to provide students accused of non-Title IX misconduct the same safeguards students are entitled to receive under Title IX regulations. Whether schools choose to adopt FIRE’s Model Code of Student Conduct or simply make their new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion, improving the process is an essential step towards protecting student rights.

As always, students, faculty, or administrators with questions shouldn’t hesitate to email us at dueprocess@thefire.org.

Here is our template letter:

Dear President [Name]:

As an institution bound by Title IX of the Education Amendments Act of 1972, [Institution] must abide by the Department of Education’s new Title IX regulations, which took effect August 14. The regulations require that schools like [Institution] guarantee students several important procedural safeguards in disciplinary proceedings prompted by allegations of sexual misconduct to ensure students have a meaningful opportunity to be heard.

Yet at present, [Institution] does not provide all of these safeguards in non-Title IX cases. I am writing to ask [Institution] to provide these safeguards to students in disciplinary proceedings for all cases where students face long-term suspension or expulsion. Where the stakes are high, the principles of due process and fundamental fairness require procedures tailored to help fact-finders arrive at accurate conclusions — whether the allegations are of sexual misconduct or non-sexual misconduct.

Among other elements, the Title IX regulations require schools to guarantee presumption of innocence, sufficient notice of charges, sufficient time with evidence to prepare for a hearing, impartial fact-finders, and live hearings with an opportunity to question witnesses. These safeguards help ensure that complaints of sexual misconduct will be taken seriously while all students accused of sexual misconduct are afforded a fundamentally fair process before being subjected to potential discipline. But just as allegations of sexual misconduct must be handled with care and integrity, so too should allegations of other types of serious misconduct.

To assist institutions with this goal, the Foundation for Individual Rights in Education has crafted a comprehensive “Model Code of Student Conduct.” FIRE’s Model Code includes definitions of key terms, an explanation of the institution’s jurisdiction, prohibited conduct, and disciplinary procedures that incorporate—into both sexual misconduct cases and non-sexual misconduct cases—the procedural safeguards mandated by the new Title IX regulations. The full Model Code is available on FIRE’s website at www.thefire.org/modelcode, and you can send questions to FIRE at dueprocess@thefire.org.

[Institution] can also better protect student rights simply by making its new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion. Students should be granted the safeguards required by the new Title IX regulations not because the allegations relate to sexual misconduct, but because the potential sanctions can be life-changing. To deny students in serious non-sexual misconduct cases those same safeguards, therefore, is unjustifiable and unfair.

Incorporating the important protections listed above into our student conduct procedures for all cases where students face serious punishments would establish our institution as a leader in protecting the rights of all students and the integrity of our hearing processes. I hope to see [Institution] take this step to make all serious disciplinary proceedings fair.

Sincerely,

[Student]

Source: https://www.thefire.org/students-accused-of-non-title-ix-misconduct-should-get-fair-hearings-too/

Campus Sexual Assault Sexual Harassment Title IX Title IX Equity Project

Biden is President-Elect. Can We Just Ignore the Title IX Regulations Now?

Post author By Edward Bartlett
Post date November 11, 2020

November 9, 2020

TNG Consulting and Brett Sokolow

It has been a week! We now know that Joe Biden is the President-Elect of the United States of America. There will still be some legal wrangling, and nothing is set in stone until the electors vote in December. But, assuming this outcome is maintained, you’ll likely be able to ignore Executive Order 13950 (“Combating Race and Sex Stereotyping”). But, what about the Title IX Regulations?

You’ve always had the option to ignore them. The question is whether you’re willing to accept the consequences of that decision. If so, compliance is a choice. If not, you need to comply. So, to make an informed decision, you need to know what the consequences are.

In just 70 days (plus or minus) there will be a new administration. The Office for Civil Rights needs to be directed to come after you for failing to comply with the regulations, and their new Biden-appointed supervisors aren’t likely to do that. Even if OCR were to enforce, you could drag it out and appeal. There is no way for OCR to issue a 305 notice of adverse enforcement action within 70 days, and even then that would have to be referred to the courts, so you’re probably pretty safe on that front.

The problem is the courts. Deprive respondents of their regs-based rights, and they will sue. Trump-appointed judges and others who value due process over victim’s rights will use the regulations as the basis of enforcement through litigation, though exactly how that will work remains to be tested. Do you want to be the test case? Maybe you’ll face a TRO. It’s temporary. Could President Biden’s ED act to rescind the regulations before a permanent injunction would be implemented? That would stop judges from enforcing the regs. Litigating to trial could take two years. By that time, Biden’s administration will have acted to at least rescind the regs, if not replace them, right? That would moot the lawsuit. So, you have to decide whether fending off some lawsuits is a reasonable price to pay for liberating your campus or school from the regulations.

Of course, President Biden won’t rescind the regs personally. That will be done by the Secretary of Education. How long will it take the Biden transition team to vet and select a nominee for Secretary of Education? How long might it be until a Secretary of Education is in place (must be confirmed by the Senate), builds a new team, and works through his/her/their priorities until Title IX hits the top of the list? It could be a year. ATIXA expects many colleges and schools will maintain their compliance with the regulations until then, but we also expect some loosening over time, as signals are issued from the Biden administration and the Department of Education about how they’re going to play this. What will change?

An informal poll of the ATIXA Title IX experts came up with these top ten targets:

Relief from direct cross examination by an advisor (cross-examination is not going anywhere, but we expect a lessening of the rigid regs requirements)
Removal of the nonsensical exclusionary/hearsay rule regarding “statements”
Revocation of the confusing rules on relevance v. directly related evidence
Two ten-day review periods likely collapsed into one period
Formal complaint requirement will be reversed
Hearing requirements for at-will employees will be limited
Hearings will only be required when some form of separation is on the table, and the definition of hearing will be broader and less formal
Mandated dismissal of Title IX complaints removed
Broad retaliation protections rolled back, especially as applied to respondents
Removal of any necessity for two processes

We do expect there will be some legal counsels who evaluate the risk and advise their schools and districts to move away from the regs to a best practices model (ATIXA’s Process B?) immediately. We can’t and won’t advise you to do so yet (and some circuit courts of appeals won’t allow it), and we don’t advise you to ignore the regs without first consulting your attorneys. Doing the right thing by implementing a best practice model may wind up being a very defensible position going forward. ATIXA will have its eyes on ways to effectively balance the rights of complainants and respondents, and how we can help you to do so as the rules for Title IX likely shift again in the coming years.

If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach, like what ED did in 2017, to fill the gap. Simultaneously or soon thereafter, ED will announce a process to issue new regulations under the APA (which will then take 1 year to 18 months). The DCL won’t bring back 2011 but will likely use a framework that modifies the current regulations per our above laundry list. This is the mostly likely scenario, but don’t write off a Title IX Restoration Act in Congress, especially if the Senate goes blue after the Georgia runoff elections in January.

Source: https://www.jdsupra.com/legalnews/biden-is-president-elect-can-we-just-63134/

Campus Due Process Sexual Assault Sexual Harassment Title IX

Barrett Confirmation is a Win for Due Process on Campus

Post author By Edward Bartlett
Post date November 10, 2020

Barrett Confirmation is a Win for Due Process on Campus

By Edward Bartlett

In her swearing-in ceremony, new Supreme Court Associate Justice Amy Coney Barrett pledged “to do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.” While many speculate on how the tenure of the 115th justice will impact the court, one thing is a near certainty – it is a win for due process and ending sex discrimination on university campuses.

For nearly a decade, college administrators have interpreted Title IX in a way that allowed them to discriminate against students based on sex by offering, among other things, sex-specific STEM courses, leadership development programs, and scholarships. Additionally, universities have used Title IX to railroad students who have been accused—not convicted—of harassment or sexual assault. Thankfully, the U.S. Department of Education released regulations earlier this year that protect students from these types of discriminatory practices.

On this topic, Barrett has shown herself to be a fair jurist—an originalist who interprets the law as it is written not as she wishes it was. And the law is clear when it comes to Title IX—discrimination based on a student’s sex is prohibited.

At her announcement ceremony in the White House Rose Garden, Barrett made it clear that she doesn’t care who a person is when considering a case but what the law says. Barrett stated she would, “administer justice without respect to persons,” which is exactly what’s missing on today’s college campus where an entire sex is shut out of classes and a mere accusation is enough for expulsion.

When one sex discrimination case, Doe v. Perdue University, was put before the U.S. Court of Appeals for the 7th Circuit, Judge Barrett wrote the panel’s opinion after they revived the student’s right to due process.

The student, referred to as John Doe, was accused of sexual misconduct, which he denied. He was suspended, discharged from the school’s ROTC program, and stripped of his ROTC-related scholarship, even though he was not allowed to call witnesses or defend himself in any meaningful way.

Barrett wrote, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension . . . John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”

This may seem like an isolated incident that’s the result of an overzealous administration with an ax to grind. But I assure you, this type of sex discrimination is happening to male students all over the country despite the recent changes to Title IX.

Judge Barrett isn’t the only well-known judge with experience in sex discrimination. Almost half a century ago, the late Supreme Court Justice Ruth Bader Ginsburg, the judge Barrett is set to replace on the country’s highest court, made waves when she represented Charles Mortiz in Mortiz v. Commissioner of Internal Revenue after he was denied a tax deduction for expenses related to the care of his invalid mother. Only women and previously married men were allowed the deduction, so Mortiz, a lifelong bachelor, was denied it due to his sex. Thanks to Ginsburg, that discriminatory decision was eventually overturned.

While Justice Ginsburg never ruled on a Title IX case related to campus sexual assault, she did comment on the issue in 2018, stating, “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,” and that, “the person who is accused has a right to defend herself or himself.”

I agree with Justice Ginsburg and believe that clarity on sex discrimination will help set the tone when it comes to Title IX compliance. Which is one very important reason to celebrate Justice Barrett’s confirmation to the Supreme Court.