Categories
Campus Due Process Sexual Harassment

Title IX Coordinators Should Embrace New Regulation to Reduce Liability Risks

2020 will be a year in which institutions of higher education (IHEs) suffer heavy financial losses. The COVID-19 shutdown is costing them many millions of dollars in lost revenues.

Significant losses due to mounting litigation are also at an all-time high. Never before have costs been higher for IHEs to defend themselves in lawsuits brought by alleged sexual assault perpetrators or victims claiming mistreatment by their institutions. IHEs must implement policies and procedures to reduce the high cost of sexual assault claims.

In 2017 United Educators (UE), which provides liability insurance to more than 1,600 schools around the country, launched its Canopy risk management program. Canopy has issued two White Papers on campus sexual assault: “The High Cost of Student-Victim Sexual Assault Claims” (1) and “Sexual Assault Claims: Perpetrator as Plaintiff” (2).

The reports document that between 2011-2015, sexual assault claims resulted in losses averaging nearly $350,000 each, with a few causing losses that exceeded $1 million. Losses in claims by accused students were driven by defense costs, which accounted for 71% of losses. Total losses due to perpetrator claims were almost $9 million, with total defense costs $6.3 million.

Lawsuits by alleged perpetrators or victims included allegations of breach of contract, Title IX violations, and negligence. Alleged types of misconduct by university personnel included the following (2):

  1. Failure to properly train staff on institutional policies
  2. Flawed reporting processes that discouraged complainants from reporting assaults
  3. Unclear policy language with insufficient written descriptions of policies and procedures
  4. Poor investigative practices with inadequate investigator training and lack of clarity about the investigator’s role
  5. Problematic adjudication practices, including poor selection of hearing panelists and inadequate training of hearing officials

Recurring patterns in the United Educators’ claims database reveal a number of needed actions to address sexual violence. Specifically, institutions should ensure that:

  • Title IX coordinators and investigators have appropriate training or experience and clarity on their roles,
  • Employees have a clear understanding of reporting obligations,
  • Sanctions are consistently and fairly applied, and
  • Campus officials respond quickly to retaliation reports.

UE also noted that alleged “Victims and perpetrators are equally entitled to know what to expect during the school’s internal process” and usually, “both parties to a campus sexual assault matter are the institution’s students and are entitled to the same procedural protections and general equitable treatment.” (3)

But instead of heeding this advice, Title IX coordinators have continued to take actions that place their universities at risk for future litigation.

In March, 2020 it was reported that over 600 lawsuits have been filed on behalf of students (and some school personnel) accused of Title IX-related offenses (4). Numerous high profile cases, such as the complaint against Baylor University (5) and Penn State University’s handling of the Jerry Sandusky case (6) have been featured in national news reports spotlighting institutions’ failure to protect victims.

Complaints alleging Title IX violations also can be opened for investigation by the U.S. Department of Education’s Office for Civil Rights (OCR), resulting in a time-consuming and expensive process for these schools. The University of Southern California (7) and Michigan State University (8) are two recent institutions that were investigated by OCR, resulting in sweeping changes or record fines due to their mishandling of sexual assault claims.

The U.S. Department of Education’s upcoming Title IX regulation will provide both a regulatory framework and procedural guidance so Title IX coordinators can provide a consistent, reliable response to an allegation of sexual assault. All of the above-listed actions from United Educator’s reports are addressed in the new regulation. Compliance with the regulation should result in fewer lawsuits against universities.

Title IX coordinators should embrace the new Title IX regulation to bring an end to the problematic policies and procedures that have resulted in significant financial losses to their institutions.

Citations:

1. https://static1.squarespace.com/static/53e530a1e4b021a99e4dc012/t/590501f74402431ac4900596/1493500411575/FN-+RE-+2017.04-+High+Cost+of+Student-Victim+SA+Claims.pdf 
2. Canopy, “Sexual Assault Claims: Perpetrator as Plaintiff” (content no longer available on the internet)
3. https://static1.squarespace.com/static/53e530a1e4b021a99e4dc012/t/590501f74402431ac4900596/1493500411575/FN-+RE-+2017.04-+High+Cost+of+Student-Victim+SA+Claims.pdf
4. https://www.titleixforall.com/
5. https://www.espn.com/college-football/story/_/id/24090683/baylor-university-settles-title-ix-lawsuit-which-gang-rape-8-football-players-was-alleged
6. https://www.thefire.org/ocr-penn-state-violated-rights-of-both-complainants-and-respondents-in-title-ix-proceedings/
7. https://www.ed.gov/news/press-releases/secretary-devos-requires-sweeping-changes-usc-after-title-ix-investigation-finds-university-failed-years-protect-students-sexual-abuse
8. https://www.freep.com/story/news/education/2019/09/05/msu-fine-larry-nassar-betsy-devos/2219781001/

 

Categories
Action Alert Campus Due Process

Release the Regs! Release the Regs!

The civil rights of K-12 students, and university students and faculty, continue to be trampled on as each day passes. It is past time for the Department of Education to publish the new Title IX regulations, because “Justice delayed is justice denied.” [1]

We need your help.

Apparently Secretary DeVos and her team are pushing to get the regulations published, but there is a difference of opinion at the White House, as to whether to publish the regulations during the COVID-19 crisis.

SAVE and other due process advocacy groups [2] say now is the best time to publish the regulations because the campuses are quiet and empty of students. The administrators have the time and capacity to put implementation plans in place before the fall semester begins.

Most importantly, students and faculty deserve the right to have fair and equitable procedures when accused of a sexual misconduct issue. This includes presumption of innocence, timely and adequate written notice, and a meaningful hearing process.

No more Kangaroo Courts! Release the Regs!

Please email the White House today at https://www.whitehouse.gov/contact/ and tell them to let the Department of Education release the Title IX regulations. When students walk onto campuses in the fall, they should be taking their civil rights with them, not leaving them at home.

[1]https://www.politico.com/story/2017/07/16/betsy-devos-civil-rights-office-240610

[2]https://www.thecollegefix.com/times-up-to-restore-due-process-groups-urge-devos-to-ignore-coronavirus-stalling-tactics-for-title-ix-reform/

Categories
Title IX

Callisto Campus, tool for documenting sexual assault at colleges, discontinued

Callisto reverses decision to delete account data following user concerns

 

By  

Callisto Campus, a tool available for Stanford students to document and report sexual and relationship violence, will be discontinued on June 30 and replaced with another version of the program.

Callisto is a third-party online platform that allows students to document and time stamp experiences with unwanted sexual conduct. If a student is not ready to submit a report to the University, their report is saved in the system, with the option for it to be submitted later.

“One of the unique features about Callisto was the ability to have your report be submitted to the Title IX office in the event that the perpetrator that you had listed also matched the perpetrator another survivor listed,” wrote former ASSU President Shanta Katipamula ’19 M.S. ’20 in an email to The Daily. While chair of the Undergraduate Senate, Katipamula also authored the bill proposing the three-year pilot of Callisto in 2016.

While Callisto Campus will be discontinued, this year Callisto will launch a new product that connects victims of sexual misconduct to attorneys who help them understand actions they can take, according to the Callisto website. Stanford students will have free access to this platform, but the University is still deciding whether to initiate a new partnership with Callisto, according to ASSU Co-Director of Sexual Violence Prevention Krithika Iyer ’21.

“We are investigating what a potential partnership would entail, and whether a new Stanford-Callisto partnership would be beneficial for survivors,” Iyer wrote. “We will be seeking input from the student community.”
“Callisto is transitioning some of its services over the summer and it will no longer be based on a partnership model with individual schools,” wrote Senior Associate Vice Provost for Institutional Equity and Access Lauren Schoenthaler in a statement to The Daily.

An update on the Callisto Campus website initially read that the service would be replaced with a new version of Callisto and that all account data would be deleted, quickly leading some to raise concerns.

“This would undermine the ability of the platform to identify repeat perpetrators on campus,” Iyer wrote.
Stanford Law professor Michele Dauber was one of the individuals who reached out to Callisto to share her concerns. One of her concerns was Callisto’s inability to inform users that their data would be deleted.

“Because there are no records kept of who the users are, Callisto doesn’t stay in contact with their end-users,” Dauber said. “In other words, if you were someone who had made such a report, you wouldn’t get an email from Callisto saying, ‘we’re changing our business model.’”

She spoke to the trauma that this could create for survivors who had placed their trust in the platform.

“They had trusted this entity because it was created by survivors and then found that all of their information had been deleted when they didn’t know it,” she said.

Callisto has since reversed its decision to delete the data.

“With respect to the feedback we have received from our partners and the extraordinary challenges posed by COVID-19, we are not deleting this data,” wrote interim Callisto CEO Tina Robilotto in an email to The Daily. “We will maintain the record data even after Callisto Campus is decommissioned and the new product is launched to our partner campuses.”

“While I understand that they’ve now understood the error of this decision and are no longer going to be deleting records, the initial decision to do so was poorly communicated and breached the trust survivors had placed in their system,” wrote Katipamula.

Dauber complimented Callisto’s “willingness to admit a mistake and reverse it.”

Schoenthaler said that Callisto had informed the University on Thursday morning that it no longer had plans to delete the records, calling it “great news.”

Dauber urged students to download reports they had made to Callisto to ensure they are preserved, and Iyer made a similar recommendation.

“While Callisto has committed to not deleting any records, the ASSU recommends that students download their report if they want to be absolutely sure that they retain a permanent copy,” Iyer said.

Despite Callisto Campus’s unique function, Iyer told The Daily that the platform has not been sufficiently advertised to students and that she hopes to increase awareness about it in following years.

“Data from the AAU survey indicate that only 9% of Stanford students are aware that Callisto Campus is an available resource,” she said. Iyer also reported efforts to ensure that Callisto is included in New Student Orientation information sessions next fall.

Dauber called the episode a “cautionary tale” about Silicon Valley’s tendency to rely on technology to solve problems.

“I think Callisto came from the best of intentions but also was riding that wave of easy assumptions about technical fixes for a very hard social problem,” she said. “There is no shortcut, in my opinion, to fixing the problem of campus sexual assault.”

This article has been updated to include a clarification from Iyer on the tool to be included in New Student Orientation information sessions.

Contact Esha Dhawan at edhawan ‘at’ stanford.edu. 

Categories
Title IX

COVID-19 Must Not Delay Enactment of New Title IX Regulations

COVID-19 Must Not Delay Enactment of New Title IX Regulations
U.S. Secretary of Education Betsy DeVos (Credit: Gage Skidmore)

COVID-19 Must Not Delay Enactment of New Title IX Regulations

Sixteen months ago, the Department of Education proposed Title IX regulations that take seriously the rights of both victims and the accused in campus sexual misconduct proceedings.

Since then, the department has reviewed more than 100,000 public comments on those regulations, incorporating feedback from diverse stakeholders.

Despite this opportunity for robust public comment, opponents of these regulations have made clear from day one that they will do everything they can to ensure they are never enacted — including, recently, sending four letters asking the department to defer the rulemaking until after the COVID-19 crisis has passed.

The department must not give in to these opportunistic and disingenuous efforts to thwart regulations that would bring desperately needed balance to campus sexual misconduct adjudications.

Campus sexual misconduct proceedings have been seriously out of balance since the department issued a Title IX “Dear Colleague” letter that transformed the way universities adjudicated sexual misconduct cases.

The letter eviscerated due-process protections for accused students and kicked off an era of aggressive Title IX enforcement that led many universities to hold proceedings rigged against the accused in order to appear serious about combating sexual assault.

As soon as Secretary of Education Betsy DeVos announced in September 2017 that the department was withdrawing the 2011 Dear Colleague letter in favor of a more balanced approach to Title IX rulemaking, supporters of the previous guidance made clear that they would do everything in their power to stop the new rules.

When the department issued interim guidance, the new guidance was immediately challenged in court by a coalition of organizations — including three of the groups now calling on the department to suspend Title IX rulemaking due to COVID-19.

After the department issued its proposed Title IX regulations in November 2018, it opened a notice-and-comment period during which it received an unprecedented number of public comments.

Pennsylvania Attorney General Josh Shapiro immediately threatened legal action to block the rules’ implementation and organized a coalition of state attorneys general who wrote to the department objecting to the regulations.

Many of these attorneys general, Shapiro included, also signed on to one of the letters now citing COVID-19 as the reason the regulations should not go into effect.

In November 2019, the regulations moved to the final step before enactment: review by the White House’s Office of Management and Budget. OMB review is not intended to be a second notice-and-comment period, but rather a final opportunity to raise concerns that may have been overlooked.

Immediately, opponents of the rule — despite already having participated in the notice-and-comment process — began scheduling OMB meetings out as far as possible, in what appears to be another effort to delay adoption of the regulations.

The final two meetings scheduled were by the Women’s Law Project and Equal Rights Advocates, both signatories on one of the COVID-19 letters.

Many of the groups now asking the department to suspend rulemaking are associations of college administrators.

These same administrators have also been publicly touting the need, and their ability, to continue with Title IX adjudications during the crisis by using videoconferencing and other technology.

If administrators can use these technologies to conduct investigations and hearings, they can certainly use the same technologies — not to mention the additional time on their hands — to prepare to make changes to their policies under regulations about which they have known for the past 16 months.

These recent efforts to capitalize on the pandemic should be seen for what they are — the last in a long and consistent line of efforts to ultimately delay the regulations’ adoption until the next election in the hope that they will never take effect.

Accused students have waited long enough for even a modicum of basic fairness. The new rules must be enacted now.

Publication of the regulations does not mean that they must be implemented instantaneously: there is always a grace period for schools to come into compliance, a period that could theoretically be extended, if necessary, in the face of exigent circumstances.

Universities have been on notice of these proposed changes for 16 months now.

If they have failed to plan and are not ready to provide these basic procedural protections, they have only themselves to blame.

Categories
Due Process Sexual Assault Title IX

Reform Title IX Now

The Department of Education’s (DOE) reform of Title IX—the law that bans discrimination based on sex at federally-funded schools—has been a long time coming. For three Senators, it has not been long enough. They strenuously object to the impact on how colleges handle accusations of sexual misconduct. No longer will an accused be presumed guilty until proven innocent. Instead, he will be accorded due process.

On March 31, Patty Murray—the leading Democrat on the Senate education committee—Elizabeth Warren, and Kirsten Gillibrand sent a letter to Education Secretary Betsy DeVos to express their opposition to finalizing the reform. “We urge you not to release the final Title IX rule at this time,” they argued, “and instead to focus on helping schools navigate the urgent issues arising from the COVID-19 pandemic.”

This is an odd argument. Now seems to be the perfect time for colleges to work on policy and administrative matters. Campuses are empty. No sexual misconduct hearings will be interrupted; students will be spared the confusion of a mid-semester policy change; administrators can implement regulations before the new academic year.

Colleges are hardly caught off guard. The reform began on September 22, 2017 when the DOE withdrew the controversial Dear Colleague Letter (2011) that governed the treatment of sexual misconduct accusations on campus. The Obama-era Letter was widely criticized for mandating a low standard of proof for findings of guilt and encouraging the denial of due process, such as a defendant’s right to a lawyer. The DOE’s replacement guideline was officially made public on November 29, 2018 when the Federal Register published “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.

The proposed reform received vast attention and backlash in this time of #MeToo that demands automatic belief of women’s accusations. in January 2018, three national public interest organizations, including the highly influential National Women’s Law Center (NWLC), sued DeVos and the DOE to block the Title IX reform. The lawsuit claimed that the “new and extreme Title IX policy…was issued unlawfully and based on discriminatory beliefs about women and girls as survivors of sexual violence, in violation of the Constitution.” The lawsuit was eventually dismissed.

Senator Murray has also attacked the Title IX proposals. A news release from her office reported on Murray’s statements at a Senate hearing on campus sexual assault. “I stand with you [accusers] and I’m going to keep fighting to stop what happened to you.” Murray accused the DOE of being “callous” and ignoring “the experiences of survivors,” which would “discourage students from coming forward after being sexually assaulted.” Gillibrand has decried DeVos as favoring “predators over survivors.” Warren has stated, “There’s no greater example of how we’re failing students and teachers than Betsy DeVos, the worst Secretary of Education we’ve seen.” These statements do not argue for the delay but for the derailment of DOE’s plans.

Liberals view the new rules as a shift to the right and an abandonment of Obama-era policies. Consider two definitions of a key term, “sexual harassment.” According to the Dear Colleague Letter, “Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” This broad characterization includes bad jokes and leering glances. By contrast, DeVos uses the reigning Supreme Court definition of “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This is a far more limited definition.

Why, then, are the 3 Senators calling for delay rather than dismantlement? The coronavirus is unlikely to disappear as an issue before the 2020 election. And, if Joe Biden wins, he has promised the reform would be withdrawn. This process would be be easier, however, if policy changes were not already implemented.

Stalling the DOE reform seems to be a conscious strategy of its opponents. According to Tulane University Title IX coordinator, Meredith Smith, the NWLC orchestrated a sequence of delays with various victims rights groups. Smith stated, “So there was this delay strategy happening. We would hear that the Department of Education was about to release the regulations and then the National Women’s Law Center and all these other groups would parachute in and get more and more meetings on the calendar which push [the release date] back.” They requested a long series of meetings with the Office of Management and Budget (OMB), for example. During the final public commentary on a regulation, individuals can meet in person or over the phone with OMB officials to share concerns; this process usually takes a couple of days, With the DOE regulation, the first meeting was November 13, 2019, and the process ended on March 27, 2020. It stretched over 4 months.

A recent article in the National Review, entitled “Coronavirus Is No Excuse to Delay the Education Department’s New Title IX Regulations,” declared, “Those making this argument [for postponement] are taking advantage of a crisis to try to keep due process out of college campuses.” They are gaming the system.

The DOE reform returns due process to campuses. It also offers relief to lawsuit-prone schools that now function as police, judge and jury in handling students and faculty accused of sexual misconduct. Increasingly, colleges are sued in federal court by those who were found guilty without a fair hearing. As a headline in the Detroit Free Press stated. “Courts ruling on side of students accused of sexual assault. Here’s why.” The “why” is the violation of their due process rights.

Justice delayed is justice denied. And Justice must not be further denied.

Source: http://www.ifeminists.com/e107_plugins/content/content.php?content.1467

Categories
Title IX

Let’s Not Delay Due Process On Campus


Under Title IX, colleges have an obligation to address sexual assault on campus.

Colleges have a corresponding obligation to treat all students fairly. Unfortunately, many colleges have created secret sex tribunals that stack the deck against accused students in order to increase discipline rates.

The tribunals often dispense with the presumption of innocence; deny students the right to see the specific charges or evidence against them; and deny accused students the opportunity to present evidence that might demonstrate consent, such as text messages.

Such procedures violate basic standards of fairness and have led to many miscarriages of justice.

Hundreds of students have successfully sued their colleges for unfair treatment.

But few colleges have altered their policies in response to such rulings.

It’s time for the Department of Education to issue regulations requiring schools to adopt fair and unbiased procedures.

Because without due process, there can be no justice.

Categories
Title IX

Civil Liberties Groups Push Title IX Rule Release

Two civil liberties groups have urged the U.S. Department of Education not to delay the release of proposed regulations under Title IX, the law prohibiting sex discrimination in institutions that receive federal funding, despite institutions’ occupation with the coronavirus pandemic.

The shift of colleges to primarily online operations means it is “an ideal time” for officials to change their policies to be in compliance with new Title IX regulations, the leaders of Speech First, a campus free speech organization, and the Independent Women’s Law Center, which advocates for reduced government control, wrote in a letter to Education Secretary Betsy DeVos and Assistant Secretary Kenneth Marcus. The letter called attempts to delay the final regulations, which were proposed in November 2018, “a disingenuous attempt to put off indefinitely the implementation of rules that certain senators and special interest groups oppose on the merits.”

Several members of Congress and state attorneys general have called on DeVos to delay the final rule, suggesting that institutions are putting all efforts toward the basic needs of students during the coronavirus pandemic. But waiting on the rule would mean “biased investigatory procedures that stack the deck against the accused” will continue for students in the Title IX process at colleges, the letter said.

“All stakeholders in America’s institutions of higher education — from students and parents to faculty and administrators — deserve a just system, and they deserve it now,” Nicole Neily, president and founder of Speech First, said in a release. “At a time when the COVID-19 pandemic has created much uncertainty in the education community, the department can provide clarity with respect to Title IX by issuing the regulations as soon as possible.”

Categories
Uncategorized

‘Time’s up to restore due process’: Groups urge DeVos to ignore coronavirus stalling tactics for Title IX reform

Title IX coordinator spills the beans on ‘delay strategy’

 

Activist groups who opposed the Trump administration’s proposed Title IX regulations from the start are now citing the outbreak of COVID-19 as a reason for further delay.

In response, due process advocates are urging the Department of Education to keep its schedule for release of the rules, which would add several due process protections for accused students in campus sexual misconduct proceedings.

While it’s true that the novel coronavirus is exhausting colleges’ available resources, opponents of due process are using the public health crisis as an excuse to cover up their disapproval of the proposed regulations, according to a due process group.

“It’s not because of the coronavirus, it’s because they don’t like and don’t want the due process rule. Period,” Stop Abusive and Violent Environments wrote in a statement.

“At a time when the COVID-19 pandemic has created much uncertainty in the education community, the Department can provide clarity with respect to Title IX by issuing the regulations as soon as possible,” according to a letter to the Department of Education by Speech First and the Independent Women’s Law Center. They called on the feds to not buy into coronavirus as an excuse to delay the due process rights of students.

On-time release of the rules is important for accusers as well, according to Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education.

“The status quo with respect to campus Title IX proceedings is unacceptable,” he said in a FIRE statement. “Institutions too often harm complainants by sweeping allegations under the rug or by handling their complaints with insufficient care, while the railroading of accused students is also well documented. Neither of these injustices should be allowed to persist.”

As evidence that due process opponents are trying to delay the regulations as long as they can, SAVE shared a clip from an Instagram video posted April 3 by Tulane University’s Title IX office.

Coordinator Meredith Smith explains the “delay strategy” devised by the National Women’s Law Center and some other “legal and victims advocate groups.”

In order to push off the regulations from taking effect in 2019, they “parachut[ed] in to get more and more meetings” with the White House Office of Management and Budget, which must sign off on agencies’ proposed regulations, Smith says. Her office didn’t know about the strategy until “January or February.”

MOREColleges, Democrats use COVID to get out of treating students fairly

SAVE@SAVEservicesorg

Shocking video clip of Tulane TIX coordinator, revealing the Nat’l Women’s Law Center orchestrated a strategy to delay release of new TIX regs, as posted in SAVE article. @BetsyDeVosED @usedgov http://www.saveservices.org/2020/04/the-national-womens-law-centers-bag-of-title-ix-tricks/ 

Embedded video

Don’t seek to ‘implement regulations unrelated to this extraordinary crisis’

Colleges have known the specifics of the Department of Education’s proposed Title IX regulation for nearly a year and a half. The broad contours go back a year earlier than that.

It would ban “single investigator” proceedings where one official acts as judge, jury and executioner; require live hearings with some form of cross-examination by students’ advocates, including lawyers; and require colleges to use the same evidence standard in disciplinary proceedings for both students and faculty, who often have more protections.

The proposed procedures are in line with several court precedents, particularly those from the 6th U.S. Circuit Court of Appeals, which ordered colleges to allow cross-examination when “credibility is at issue.” They would also be legally binding, a reversal of the Obama administration’s “guidance” approach.

Three Democratic senators called it “reckless and inappropriate” for the Department of Education to require K-12 schools and higher education to “significantly alter how they handle allegations of sexual harassment and assault” during the pandemic.

MOREColleges use coronavirus to restrict how accused students defend themselves

They face “unprecedented uncertainty about the end of this school year and the start of the next school year,” wrote New York’s Kirsten Gillibrand, Washington’s Patty Murry and Elizabeth Warren of Massachusetts. “The federal government should be doing everything possible to help them navigate these uncertain times,” including by delaying the Title IX regulation.

The American Council on Education, which represents college presidents, as well as NWLC and 18 Democratic attorneys general have all written letters to the Department of Education asking to delay the rules, given the strain of COVID-19 on colleges.

“At a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis,” ACE wrote.

“Finalizing the proposed rule would also unnecessarily exacerbate confusion and uncertainty for students who are currently in pending Title IX investigations and hearings, which have already been delayed and disrupted by the pandemic,” NWLC wrote. The attorneys general echoed these arguments.

Stalling rationale ‘also true for a university absent of a coronavirus pandemic’

Due process advocates countered that now is the perfect time to implement new Title IX rules because colleges have had ample time to plan and Title IX officers will not have to worry about an abundance of new cases, given how few students remain on campus during the COVID-19 outbreak.

The rationales offered for delay by NWLC and ACE – that colleges are dealing with reduced resources, increased stress and difficult work arrangements – are “also true for a university absent of a coronavirus pandemic,” SAVE countered. It noted that NWLC’s letter tipped its hand by calling the Title IX proposal “fundamentally flawed,” not just ill-timed.

“Students are given ample notice to complete their assignment and turn it in for a grade,” the due process group continued. “Universities have had ample notice and time to prepare for the release of new rules enforcing Title IX on their campus.  No more excuses. Time’s up to restore due process on University campuses across the nation.”

Writing for SAVE, University of Utah Prof. Nicholas Wolfinger wrote Sunday: “With campuses shuttered and students sent home, opportunities for campus sexual misconduct have plummeted. In short, this is the ideal time for the new regulations to be implemented.”

Given the proposed rules were published in November 2018, “preparation for the implementation of these regulations should be well underway at this point,” said the Speech First and IWLC joint letter. “Students who are currently caught up in Title IX adjudications should not be forced to wait any longer for clarity on their cases.”

Speech First President Nicole Neily said in a separate statement that “all stakeholders in America’s institutions of higher education—from students and parents to faculty and administrators —deserve a just system, and they deserve it now.”

MOREAccusers use ‘street justice’ to harass accused students

IWLC Director Jennifer Braceras added: “Universities must not be allowed to hide behind this pandemic as an excuse for violating the due process rights of the accused.”

FIRE’s Cohn emphasized that the Department of Education’s proposed rules are “not the only potential legal authority mandating changes,” pointing to the “growing list of schools … on the losing end of judicial opinions blasting the institutions’ procedures”:

Does anyone think the pandemic should result in stays in all of those cases? Should we presume that the current world situation should be grounds to stay all judicial orders — even those in other contexts — requiring the government to halt the revision of policies that violate constitutional rights? If not, then why only in this context must this type of institutional actor be allowed to continue unjust practices?

Secretary Betsy DeVos* has been coy on the timing of the rule, which faces no more regulatory hurdles after clearing OMB review.

In a news release by the Department of Education about the stimulus money going to higher education, she vaguely responded to questions regarding the Title IX regulation.

Without giving an exact date for the regulation’s rollout, DeVos said the department is taking into consideration both sides’ arguments on the matter. “We are sensitive to the situation [with coronavirus-related burdens]. But we also have to acknowledge that Title IX investigations continue to happen.”

Categories
Title IX

USA Today claims the NCAA enables a ‘predator pipeline.’ Its evidence is thin.

Damning conclusions in spite of many caveats

 

A week after USA Today published a four-part series on student athletes who transfer freely between NCAA schools despite sexual misconduct claims, a university president-turned-lawmaker threatened to cut off the federal spigot to schools that don’t properly address violence.

The scrutiny from the media and Capitol Hill got the attention of the NCAA, which had formerly resisted government pressure. Now it claims to be “actively working” with Congress “to modernize our rules.”

Before we applaud this rush toward supposed accountability for the NCAA and its members, however, we must carefully vet the assertions in the “Predator Pipeline” series by USA Today’s investigative team. Has it actually documented a predator pipeline with NCAA involvement that requires congressional intervention?

The NCAA regulates more than 480,000 student athletes from 1,268 North American institutions. It is being accused of complicity in the pipeline, at the very least.

Freshman Democratic Rep. Donna Shalala, a former Clinton administration official and University of Miami president, introduced the Congressional Advisory Commission on Intercollegiate Athletics Act in December.

The bill creates a congressional commission to oversee college sports, and review how federal funding is spent on related programs. While HR-5528 is silent on the commission’s authority, Shalala herself implied that federal funding may be at stake.

“Our higher education institutions receive a substantial amount of federal student support funding,” Shalala told Florida Daily when she introduced the bill. “There is little oversight, and as a result, we have little insight into how the funding is being spent and if the students’ best interests are being prioritized. This commission would fill that gap.”

The USA Today investigation found that since 2014, at least 28 current and former athletes had transferred and continued to play sports despite being administratively disciplined for a sexual offense. One article’s subtitle says the NCAA “looks other way as athletes punished for sex offenses play on.”

MOREMichigan State settles with Keith Mumphery after ruining his NFL career

A 17-member congressional commission with 2 years to examine every aspect of NCAA college athletics — and make recommendations. One congresswoman has proposed it. https://www.idahostatesman.com/sports/college/article238480913.html 

Can Congress remake college athletics? Shalala proposes 2-year commission on NCAA

Can a committee remake college athletics in two years?

idahostatesman.com

To vet its claims, we must start with methodology, which is published separately from the largely anecdotal articles in the series.

Of more than 1,100 American colleges with NCAA programs, the 226 with teams competing at a  Division I level were surveyed. Just 35 provided data on sexual violence, of which one was excluded, representing about 15 percent of surveyed colleges and about 3 percent of the total.

The small size of the sampling is a problem. For one thing, conclusions based on a small sampling of a large population must be random to be credible. Otherwise, the data could reflect selection bias on the part of USA Today or the colleges themselves.

The responding colleges reported 531 cases of student sexual misconduct, 47 of which were NCAA athletes—all male. Questions arise again. Does this rate reflect the increased scrutiny athletes may receive? If a student is part of a another group that overlaps with athletes, which group is used?

In fairness, USA Today admits its data are “not necessarily representative.” It also acknowledges that some surveys appeared to report the same offender multiple times, and it is impossible for a reader to assess how effectively the duplicates were filtered out.

Despite advancing many caveats, however, USA Today goes on to draw damning conclusions. One concerns the non-responding colleges. “That’s 191 schools,” an article in the series states, “that shielded the identities of alleged abusers at the expense of women’s safety and the public’s right to know.”

There could be many reasons for a non-response, however. The college might resent the deadline imposed or the cost of assembling extensive data; USA Today admits a reluctance to pay some requested fees. The college could doubt the motives of the news organization. Or, perhaps, it felt constrained by state privacy laws or the federal Family Educational Rights and Privacy Act.

Definitional problems also exist. Universities use terms both vaguely and differently. Terms like “sexual misconduct” are elastic and stretch to cover everything from rape to a lover’s quarrel. One defense attorney told me that in half of her cases, there wasn’t any actual sex but allegations such as “he kissed me without permission.”

MORELiberty U expelled football player for rape hours before he was cleared

A congressional review of offenses is problematic as well, because it is not likely to include a review of the procedures used to adjudicate a case.

For years, sexual misconduct hearings have been defined by the so-called Dear Colleague letter to colleges from the Obama administration in April 2011. It admonished colleges flatly to believe an accuser and to refuse due process rights, such as cross-examination or the presence of a lawyer, to an accused student.

The neglect of due process continues to this day, and the problem of wrongful convictions that result is well documented. Some “convictions” have been overturned in the court system. Jack Montague (below), former captain of the Yale University basketball team, is an example.

A great tension also exists between USA Today’s statement of methodology and the four articles. The statement concludes with a call for “further investigation and analysis,” which is reasonable.

But the articles present lurid details of rape and express rage at specific athletes, and one of those articles may have put pressure on Rep. Shalala to file her bill.

“NCAA Board of Governors to review policies regarding sexual assault amid congressional pressure on ‘predator pipeline’,” for example, features a University of Miami football player “accused of gang rape” in 2014, when Shalala was president.

Alex Figueroa was expelled, and he later “accepted a deferred prosecution agreement for felony sexual battery with multiple perpetrators.” By failing to explain “deferred prosecution,” which means the system determined not to prosecute, USA Today implies that Figueroa was criminally disciplined.

Even though deferred prosecution cannot be conflated with guilt, the article uses Figueroa to illustrate the predator pipeline: He transferred to another NCAA college that independently assessed him as “an exemplary student-athlete.”

The need to address sexual violence will not go away, nor should it. But it must be approached with facts, not sensationalism, and with fairness to both the accuser and the accused. USA Today has not successfully documented a predator pipeline, and its articles should not be the basis of law.

Wendy McElroy is the author/editor of five books on individualist feminism, and several others on political topics. Her most recent book is “The Satoshi Revolution: A Revolution of Rising Expectations.” McElroy has written hundreds of articles that have appeared in such wide-raging publications as Penthouse, The Hill, and bitcoin.com.

Categories
Campus Due Process Sexual Harassment

Open Letter to the 18 Attorneys General Opposed to the New Title IX Regulation

The long-awaited Department of Education regulations on adjudicating allegations of
sexual misconduct on college campuses are poised for release. In response, the
American Council on Education (ACE) (1) and eighteen state attorneys general (2) have
sought to block the guidelines. I believe this effort is misguided.

The regulations would restore basic fairness to sexual misconduct proceedings on
campus. Over the past ten years, a shadow legal system has simultaneously failed
either to sanction campus predators, or to provide basic due process rights to students
and faculty accused of sexual misconduct. This failed regulatory regime is a result of the
2011 Dear Colleague Letter, guidance from the U.S. Department of Education that
expanded Title IX to address campus sexual misconduct, including both sexual
harassment and sexual assault.

The failure of the existing system to ensure due process for accused faculty and
students is well documented. A 2016 report from the American Association of University
Professors assailed campuses for “inadequate protections of due process and
academic governance.” (3) Open letters from 28 faculty members at Harvard Law School (4)
and 15 professors at the University of Pennsylvania Law School (5) have shared similar
concerns, as did Supreme Court Justice Ruth Bader Ginsburg in a 2016 interview by
The Atlantic. (6) When challenged in court, colleges and universities have suffered over
170 setbacks to students accused of sexual misconduct. (7)

Nor has the existing system proved successful in reducing campus sexual misconduct.
Data collected by the Association of American Universities indicate that reports of
sexual assault, whether by physical force or inability to consent due to intoxication,
actually increased between 2015 and 2019. Moreover, only 45 percent of campus
survivors said that school officials were “very” or “extremely likely” to take their
allegations seriously. (8) And most infamously, the serial abuser Larry Nassar was
allowed to remain in his position at Michigan State University after the school’s Title IX coordinator somehow concluded in 2014 that Nassar’s behavior was “medically appropriate.” (9)

The American Council on Education and the eighteen state attorneys general offer
specious arguments for blocking the new regulations. In their open letter, ACE contends
that, “at a time when institutional resources already are stretched thin, colleges and
universities should not be asked to divert precious resources away from more critical
efforts in order to implement regulations unrelated to this extraordinary crisis.” Yet
colleges and universities have known for eighteen months that the new regulations were
forthcoming. Moreover, COVID-19 means that school Title IX officers, directly
responsible for implementing the guidelines, have more free time than ever before. With
campuses shuttered and students sent home, opportunities for campus sexual
misconduct have plummeted. In short, this is the ideal time for the new regulations to be
implemented.

The new Department of Education regulations aren’t perfect, but they will establish
adjudication mechanisms that are much fairer to accused students, faculty, and staff. A
fairer system, in turn, will enjoy greater support and credibility among stakeholders. And
with any luck, this means fewer dangerous predators on campus. For all these reasons,
I urge you to withdraw your opposition to the new regulations.

Citations:

1. https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/Letter-ED-
delayt9s117-032420v2FINAL.pdf
2. https://files.constantcontact.com/bfcd0cef001/71385110-7632-4adc-a7ae-0f47bc4f6801.pdf
3. https://www.aaup.org/report/history-uses-and-abuses-title-ix
4. https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-
policy/HFDDiZN7nU2UwuUuWMnqbM/story.html
5. http://media.philly.com/documents/OpenLetter.pdf
6. https://www.theatlantic.com/politics/archive/2018/02/ruth-bader-ginsburg-opens-up-about-metoo-voting-rights-
and-millenials/553409/
7. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
8. http://www.saveservices.org/2020/04/aau-climate-surveys-reveal-failure-of-campus-sexual-assault-policies/

9. https://www.theatlantic.com/education/archive/2018/01/the-nassar-investigation-that-never-made-headlines/551717/

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State Attorneys General, Mailing Addresses 

JOSH SHAPIRO

Attorney General, Commonwealth of Pennsylvania

Office of the Attorney General

Strawberry Square

Harrisburg, PA 17120

 

XAVIER BACERRA

Attorney General, State of California

Office of the Attorney General

P.O. Box 944255

Sacramento, CA 94244-2550

 

PHILIP J. WEISER

Attorney General, State of Colorado

Office of the Attorney General

Colorado Department of Law

Ralph L. Carr Judicial Building

1300 Broadway, 10th Floor

Denver, CO 80203

 

WILLIAM TONG

Attorney General, State of Connecticut

Office of the Attorney General

165 Capitol Avenue

Hartford, CT 06106

 

KATHLEEN JENNINGS

Attorney General, State of Delaware

Delaware Department of Justice,

Office of the Attorney General

Carvel State Building

820 N. French St.

Wilmington, DE 19801

 

KARL A. RACINE

Attorney General, District of Columbia

Office of the Attorney General

441 4th Street, NW

Washington, DC 20001

 

CLARE E. CONNORS

Attorney General, State of Hawai‘i

Department of the Attorney General

425 Queen Street

Honolulu, HI 96813

 

BRIAN FROSH

Attorney General, State of Maryland

Office of the Attorney General

200 St. Paul Place

Baltimore, MD 21202

 

MAURA HEALEY

Attorney General, Commonwealth of Massachusetts

Office of the Attorney General

1 Ashburton Place, 20th Floor

Boston, MA 02108

 

DANA NESSEL

Attorney General, State of Michigan

Office of the Attorney General

  1. Mennen Williams Building

525 W. Ottawa Street

P.O. Box 30212

Lansing, MI 48909

 

KEITH ELLISON

Attorney General, State of Minnesota

Office of the Attorney General

445 Minnesota Street, Suite 1400

St. Paul, MN 55101

 

AARON D. FORD

Attorney General, State of Nevada

Office of the Attorney General

100 North Carson Street

Carson City, Nevada 89701-4717

 

HECTOR BALDERAS

Attorney General, State of New Mexico

Office of the Attorney General

408 Galisteo Street

Villagra Building

Santa Fe, NM 87501​

 

LETITIA JAMES

Attorney General, State of New York

Office of the Attorney General

The Capitol

Albany, NY 12224-0341

 

JOSHUA H. STEIN

Attorney General, State of North Carolina

Office of the Attorney General

114 West Edenton Street

Raleigh, NC 2760

 

PETER F. NERONHA

Attorney General, State of Rhode Island

Office of the Attorney General

150 South Main Street

Providence, RI 02903

 

THOMAS J. DONOVAN, JR.

Attorney General, State of Vermont

Office of the Attorney General

109 State St

Montpelier, VT 05609

 

MARK R. HERRING

Attorney General, Commonwealth of Virginia

Office of the Attorney General

202 North Ninth Street

Richmond, Virginia 23219