Author: saveadmin

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

There are many variations on the use of the single investigator, where the investigator chosen by the college will reach her conclusion of guilt on her own or where the investigator will present her conclusion to a panel, which will then reach its decision as to guilt. As Doe’s lawyer, Josh Engel, wrote in his brief, these amount to distinctions without any real difference.

In this model, an institution’s designated Title IX investigator interviews witnesses identified by the parties and reviews evidence provided by the parties. There is no independent effort to obtain information from third parties or other sources. The investigator then draws a conclusion about whether the accused student has violated school policies. There is no hearing where a party can present evidence and cross-examine adverse witnesses in front of a neutral fact-finder. The investigator literally serves as the police, judge and jury.11

11 Except, of course, that the police usually conduct more thorough investigations.
Here, an attorney merely recorded statements and gathered limited evidence voluntarily
provided by interested parties. This is not an “investigation” of a serious allegation as
the term would be understood by most law enforcement officers.

From the outset, the deck is stacked. It doesn’t have to be, but consider the qualifications of people who seek the job of Title IX investigator, and the people whom institutions select to fill that function. They tend to be people deeply involved with and sensitive to sexual misconduct against women on campus, usually with long histories of activism and proven dedication to the elimination of sexual misconduct against women.

This isn’t to say they lack the qualifications on paper, or lack the ability to present their findings in a gender-neutral fashion, but that their perception of the problem that guides their investigation is grounded in an ideological belief that precludes any fair assessment of the facts. They are dedicated to finding the facts, aggregating and presenting them in such a way as to assure the only “correct” outcome: guilt.

These Title IX investigators interview the accuser and accused, together with those witnesses they deem relevant. They gather evidence they deem relevant. They pursue avenues they deem relevant. If they deem only that which proves guilt to be relevant, then they ignore witnesses and evidence that don’t. It’s left entirely in their hands. When the only evidence presented is evidence of guilt, the outcome isn’t a mystery.

The rhetorical argument, that if Title IX investigators are fair and neutral, it will all turn out swell, is no more logically sound than the old proverb, “If wishes were horses, beggars would ride.” When the entirety of a process is placed in the hands of one person, who then presents conclusions based only on the evidence that supports the conclusion and omits all the evidence that shows it to be baseless or biased, it easily creates the appearance of fairness without any of the substance. Add to this the sort of person hired to play the role of Title IX investigator and the problem is abundantly clear.

So why, then, did 17 law professors file an amicus brief in support of the University?

Civil rights investigations rely primarily or exclusively on professional investigators to conduct a fact-finding process to determine whether and to what extent an accusation of sexual harassment or gender-based violence is accurate. Investigators gather documentary and physical evidence, as well as conduct separate interviews with and make credibility determination about the parties (i.e. the complainant and respondent) and any witnesses. They then synthesize the evidence gathered and write an investigative report where they make factual findings based on the evidence gathered.

Sounds rather warm, fuzzy and official, but the essence of their argument was better captured in their summary:

Non-adversarial, civil rights investigation methods advance comprehensive prevention of this harassment and violence more effectively than do the live, adversarial hearing-based methods that John Doe is demanding that Appellee use. Comprehensive prevention of sexual harassment and gender-based violence is a public health-based approach that incorporates primary, secondary, and tertiary forms of prevention. Civil rights investigation methods function as much more effective secondary and tertiary prevention than adversarial, live hearings do.

The first give-away is the use of the word “non-adversarial,” which replaces what the model should be called in the affirmative: Inquisitorial. If the inquisitor deems the accused guilty, then he is, and the accused is denied the ability to challenge the inquisitor’s conclusions because the conclusion has already been decided.

But the second idea, buried in this summary, is that neither the finding nor the sanction is about the accused, but about “public health” and “prevention.” In other words, the guilt of the accused isn’t particularly important to the cause, as promoting the notions that accusations will be inherently believed and accusers will be severely sanctioned serves the greater good of eradicating sexual misconduct. As for the accused, he’s just collateral damage in furthering the civil rights outcome.

While most arguments about the single investigator model tend to revolve around the mandates of due process and fundamental fairness, whether under the Constitution, or express or implied contractual terms, few cases directly confront the inherent impropriety of making one individual “judge, jury and executioner.” How much procedural due process is required, and how that can be achieved in a grossly sub-optimal setting such as a campus sex tribunal, raises one question. But there should be no question that the inquisitorial model, no matter how one characterizes the virtues of the inquisitor, invariably fails to provide the accused with a fair process. But as the 17 law profs argue, that was never the purpose.

On March 27, the Office for Management and Budget completed its roughly five-month review of the Department of Education’s proposed regulations on Title IX, paving the way for the regulations to be finalized. Unsurprisingly, prominent opponents of the regulations, who have opposed the proposal at each and every step, have seized on the coronavirus crisis to argue that the pending regulations should be delayed. The Department of Education should ignore these misplaced calls and finalize the regulations as soon as is practicable.

The classic legal maxim that “justice delayed is justice denied” is applicable here. The status quo with respect to campus Title IX proceedings is unacceptable. 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. (The recent OCR findings concluding its Title IX investigation at Pennsylvania State University demonstrate that sometimes a school violates the rights of both parties simultaneously!) Neither of these injustices should be allowed to persist.

Indeed, some of the same victims’ rights advocates that are calling for the proposed regulations to be delayed are simultaneously arguing that institutions that pause Title IX proceedings during the coronavirus pandemic are “prolonging the trauma” experienced by complainants. Last week, for example, one set of those advocacy groups, including prominent organizations like Know Your IX, Equal Rights Advocates, and the National Women’s Law Center  wrote the following in an open letter to institutions:

[S]chools’ logistical obstacles are not a sufficient justification for forcing students to forgo their right to a prompt and equitable process to address and redress sexual violence and other forms of sexual harassment. Meaningfully enforcing civil rights is not an obligation that dissipates in the face of institutional hardships–even during these unprecedented times.

It’s clear that these advocates think that institutions are capable of dedicating resources toward enforcing Title IX, even in this challenging environment. Title IX coordinators seem to agree. One Title IX coordinator told The Chronicle of Higher Education that his university’s “Title IX office remains fully operational.” Another pointed out that her Title IX office was able to use technology like videoconferencing to proceed.

If these professionals can figure out how to proceed with the pending cases, surely they can also review their policies for compliance with new regulations and make adjustments accordingly. Moreover, if institutions are going to continue to adjudicate these cases, they cannot cite the pandemic as a justification for continuing ongoing practices that may be violating students’ rights.

Critics who argue that now is not the time to reform Title IX practices are inherently arguing that even if what institutions are doing is unjust, now is not the time to address these problems. But the proposed Title IX regulations are not the only potential legal authority mandating changes. A growing list of schools are 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?

The latest calls to pause the regulations are nothing more than thinly veiled attempts to delay any changes in hopes that the proposal may yet be derailed by changes in political circumstances. But the moral requirements of justice do not change with the political winds. Indeed, this is most important to remember in times of crisis, when excuses for turning a blind eye to violations of rights are so tempting. Courts and other government actors cannot hide behind the pandemic to justify continuation of abuses.

The argument for delaying the finalization of the regulations also implies that institutions will have to scramble to revise their policies overnight. This is not true. The proposed Title IX regulations were first published on Nov. 29, 2018, which means that schools have already had nearly 500 days of advance notice of these proposed changes to consider potentially necessary policy revisions.

Further delay wouldn’t help institutions anyway. The sooner the proposed regulations are finalized, the sooner institutions and their communities will have certainty with respect to what will be expected of them. This clarity will be to everyone’s benefit.

Unlike ‘wall-to-wall coverage for Brett Kavanaugh, Donald Trump’

Leading Democratic presidential candidate Joe Biden made his name in the past decade as a tireless champion of denying due process to students accused of sexual misconduct, devising the Obama administration’s so-called guidance that it treated as binding regulation.

Now that he’s been accused of sexual assault by a former employee – an accusation that drew little legacy media coverage – some Democratic student groups are showing their consistency on the issue.

The University of Pennsylvania’s Penn Democrats and Penn for Bernie demanded that Biden’s campaign and mainstream media outlets investigate the allegations by Tara Reade, his former Senate staffer, The Daily Pennsylvanian reports.

Left-wing outlets Vox and The Intercept have run lengthy articles in the past week on the cold shoulder Reade has received since she aired a more narrow version of her allegations a year ago, accusing Biden of inappropriately touching her shoulder and neck.

They were largely in line with allegations by a former Nevada lawmaker, Lucy Flores, but the sudden wave of claims against Biden were not enough to make Penn reconsider naming its new Washington, D.C.-based center after him.

MORE: Penn silent on whether it will rename Penn Biden Center

If the elite Ivy League Democrats are any indication, perhaps Biden should start worrying that he’s losing the narrative:

In a written statement to The Daily Pennsylvanian, Penn Dems executive board expressed that they take allegations of sexual assault “extremely seriously,” and reference their status as a group certified by Penn Violence Prevention’s Anti-Violence Engagement Network.

“Tara Reade deserves to be heard and journalistic organizations have an obligation to investigate her allegations,” the statement read. “VP Biden should also address them further immediately.” …

Co-director of Penn for Bernie and College sophomore Jack Cahill said sexual assault allegations should always be treated seriously, regardless of political party.

“If you believe in women, and if you want to hold people accountable, you have to be morally and ideologically consistent, regardless of whether it’s somebody you know, or whether they have a D or an R next to their name,” Cahill said. ‘“If Bernie Sanders had a credible allegation against him, I would be very vocal, Penn for Bernie would be very vocal, and calling for an investigation about this.”

MORE: Biden compares advocates of due process to ‘Nazis’

One of Cahill’s colleagues is even more vocal, chastising reporters for ignoring accusations against the more mainstream Democratic candidate:

Emily Liu, a College junior and Penn for Bernie’s Outreach Director, criticized the lack of coverage on Reade’s allegation in major media outlets. At the time of publication, Reade’s allegation against Biden has not been covered by The New York Times, The Washington Post, or CNN.

“I haven’t seen basically any major media outlets cover this, the way there was wall-to-wall coverage for Brett Kavanaugh, Donald Trump, basically anyone possible,” Liu said. “The standard should be applied evenly across the board, especially from organizations like CNN or Time’s Up who have a responsibility to hold the powerful accountable.”

Time’s Up – a nonprofit within the anti-due process National Women’s Law Center – turned down Reade’s request for legal help when she wanted to expand her allegation. It cited its tax-exempt status and Biden’s political candidacy, but The Intercept pointed out another coincidence: The managing director of the nonprofit’s PR firm is a top Biden advisor, Anita Dunn.

A tax professor at Loyola Law School Los Angeles discounted the tax-exempt status rationale, telling the media outlet that Time’s Up is “allowed to continue to do what they have always done” with regard to evaluating which cases to take. (Some colleges also ban students from expressing political messages, disingenuously citing their tax-exempt status.)

Biden’s campaign has denied the allegation, telling reporters (for perhaps the first time ever) that they “have an obligation to rigorously vet” claims by sexual assault accusers.