Categories
Sexual Assault Sexual Harassment Title IX

Colleges Plead for More Time to Implement New Title IX Regulations

March 20, 5:45 p.m. Colleges and universities have their hands full dealing with the coronavirus outbreak, as they transition to online classes, close campuses and worrying about the health and housing of their students. But many are worried they may soon have to implement a controversial rule by U.S. Secretary of Education Betsy DeVos that will change how institutions handle allegations of sexual assault and harassment, including a requirement the accused be able to cross-examine their accusers in a live hearing.

DeVos has been rumored to be issuing the rule soon. Though the Office of Management and Budget, which reviews proposed new rules, has meetings with stakeholders scheduled through April 6, the office could cancel them and green-light a rule at any time.

The rule would involve changing policies, including faculty agreements, said Brett A. Sokolow,  president of the Association of Title IX Administrators.

“Issuing Title IX regulations in the midst of coronavirus response would be a huge distraction for schools and colleges, which need to be focused right now on transitioning essential services to online delivery,” he said. While institutions are usually given 30 to 90 days to comply with a new rule, he said they should be given at least a year.

More than 10 higher educations asked this week in a memo for federal lawmakers to give DeVos “the authority to waive compliance with significant and/or costly new regulatory requirements that may be introduced in this period, as institutions’ ability to come into compliance will necessitate a substantial outlay of resources that are better allocated to other purposes at this time.”

Craig Lindwarm, vice president for government affairs at the Association of Public and Land-grant Universities, said his group is worried about having to comply with a pending rule expanding the reporting requirements for institutions for foreign gifts and contracts.

“Now is not the time to impose substantial new regulatory burdens on institutions, and significant challenges in implementation, when campuses are closing and responding to the emergency conditions they’re facing,” he said.

“We have significant concerns that institutions won’t have the bandwidth or the resources to implement these regulations,” said Matt Owens, the Association of American Universities’ executive vice president and vice president for federal relations.

“This is not the time,” said Elizabeth Tang, education and workplace justice counsel at the National Women’s Law Center. “Students and families are struggling to provide for their basic needs, and schools scrambling to provide online resources. It would be absolutely inappropriate to issue a new rule in the midst of all this.”

The law center has said it would file a suit to block the rule if the final version is similar to the initial version DeVos proposed. Many of the Trump administration’s rules have been blocked in court, she said. But Sokolow, writing in Inside Higher Ed, warned institutions will have to respond to a new rule even if it is being challenged in court.

“It’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined,” he wrote in a Jan. 15 opinion piece on the potential impact of the new rule on institutions.

Source: https://www.insidehighered.com/news/2020/03/23/live-updates-latest-news-coronavirus-and-higher-education

Categories
Uncategorized

6th Circuit: Suspend First Or Else

A few months earlier, a Sixth Circuit Court of Appeals panel in an opinion by Judge Alice Batchelder held that a female accuser did not have a cause of action against the college for allowing the accused to remain on campus. Or to put it bluntly, not suspending or expelling the male student did not allow the female student to claim she was harassed by having to suffer his mere presence on campus.

In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries. A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation.

What this meant is that colleges didn’t subject themselves to liability to the accuser by imposing a lesser remedy than expulsion, and that the circuit was emphasizing a return to the criteria stated by the Supreme Court in Davis v. Monroe County Board of Ed., that the harassment must be “severe, pervasive and objectively offensive.”

A different panel of the Sixth Circuit just ruled to the contrary in Foster v. University of Michigan.

Foster was the victim of sexual harassment during a University of Michigan Ross School of Business executive MBA program located off-site in Los Angeles, California. After Foster reported that the respondent*, a fellow classmate in the program, had sexually harassed her, the University instituted a no-contact and no-retaliation order against him while it investigated her complaint. Foster argues that the University’s response to the respondent’s unwillingness to comply with these measures was clearly unreasonable and caused her to undergo further harassment.

Because we believe that Foster has established a genuine issue of material fact as to whether the University was deliberately indifferent to the sexual harassment she suffered at the hands of a fellow student, we REVERSE the grant of summary judgment and REMAND for further proceedings consistent with this opinion.

There is an obvious and salient factual distinction between the two decisions. In the earlier case, the male accused’s only “offense” was still existing on campus, and the accuser’s “complaint” was that she would see him, and that the mere sight of him was traumatic enough to constitute harassment.

In the second case, the accuser claimed that the male accused engaged in affirmative harassing conduct in violation of the “no contact” order imposed by the school.

The accused student later violated the order, blocking Foster from doorways, texting her, writing threats on Facebook and detailing Foster’s Title IX claim via email to other students in the E.M.B.A. program. The university followed up on Foster’s communication about the incidents and banned the accused student from a class and from attending commencement events in Ann Arbor, Mich., according to court documents. He was arrested after showing up to a commencement event and sent back to California, the opinion states.

While the details, and the significance of the conduct, are disputed, the court nonetheless held the remedy used by Michigan, the “no contact” order and various related directives, were not, as a matter of law, sufficient to show that even if they proved insufficient, the school was not “deliberately indifferent.” In other words, even though the school took deliberate action, it could still be liable for deliberate indifference if the court, in retrospect, deemed the action inadequate.

What’s a college to do? As much as Judge Batchelder’s opinion concluded that the mere sight of an accused male student didn’t constitute harassment, such that the university was under no duty to suspend or expel every male accused lest it be liable under Title IX if the female student complained, the liability is contingent not on the university’s deliberate response to the complaint, but hinges on the male student’s compliance, the female student’s subjective satisfaction with the remedy and, of course, the validity of the subsequent complaints that the male student continued to engage in conduct that the female student felt was harassment.

The only safe way for a college to avoid Title IX liability, then, is to suspend or expel the male student, since they can’t be positive that the male student left on campus won’t engage in conduct that either is, or could be deemed, harassment. Indeed, even if the male student tries his best to comply with the school’s directives, there is no assurance that the students won’t cross paths at times, particularly when they’re both in the same educational program. And there is never an assurance that the sensitivity of the accuser won’t give rise to exaggerated claims of trauma and suffering by otherwise benign and harmless action.

“It’s a dynamic process,” [Appellant’s attorney, Joshua] Engel said. “The school puts in place what seems reasonable, but when the accused student says, ‘I’m not going to follow these rules,’ the school can’t just say, ‘We did something, good luck.’”

In dissent, Judge Jeffrey Sutton points out the absurd conundrum.

It’s not a university’s job to do the impossible—to “purg[e] their schools of actionable peer harassment”; it’s a university’s job to respond in good faith to allegations of harassment to eliminate the problem.

That’s what Michigan tried to do and tried to do in good faith. From March 13, 2014, forward, Foster presented the University with five instances of misconduct by the harasser. Each time, the University adopted escalating measures proportionate to the misconduct. Not once did its action remotely count as “clearly unreasonable.”

Going forward, there appears to be only one rational option in the Sixth Circuit for schools confronted with an accusation of sexual harassment, not because far lesser options aren’t available and won’t work, but because the good faith efforts to address them using reasonable means won’t protect the school from subsequent Title IX liability: get rid of the male student.

*Inexplicably, but perhaps tellingly, the court refers to the accused male student as the “respondent” even though he was not a party to the action.

Source: https://blog.simplejustice.us/2020/03/13/6th-circuit-suspend-first-or-else/

Categories
Campus Sexual Assault Trauma Informed

PR: Impartial and Fair Investigations at Risk in Four States Eyeing ‘Trauma-Informed’ Methods

Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org

Impartial and Fair Investigations at Risk in Four States Eyeing ‘Trauma-Informed’ Methods 

WASHINGTON / March 25, 2020 – Proposed legislation in New Hampshire, Massachusetts, California, and Hawaii would require universities to use controversial “trauma-informed” methods for investigations of allegations of campus sexual assault. Investigative reporter Emily Yoffe has concluded that “trauma-informed” methods represent a form of “junk science.” (1)

Numerous judicial opinions have found “trauma-informed” investigations presume the guilt of the accused and violate due process (2).  In Norris v University of Colorado, Boulder, the university’s motion-to-dismiss was denied as the Plaintiff argued that a trauma-informed approach reflected bias by university investigators (3). In Doe v Syracuse University, the court criticized the university’s apparent bias based on “the influence on university officials of trauma-informed training”(4).

Even though the Department of Education’s April 2014 Q&A on Title IX and Sexual Violence with language about “effects of trauma, including neurobiological changes” was officially withdrawn in September 2017, “Trauma-informed” concepts are featured in bills currently being debated in four states across the country:

— New Hampshire SB679 mentions “trauma-informed response” six times and mandates the policy that institutions of higher education use regarding sexual misconduct must be “trauma-informed.”(5)

— Massachusetts H4418 requires an individual who participates in the implementation of an institution of higher education’s disciplinary process for addressing complaints of sexual misconduct be trained on “the effects of trauma, including any neurological impact on a person.”(6)

— Hawaii SB2311 requires “training on the impact of trauma” and “training on the neurobiological and psychological impact of trauma, stereotypes surrounding the causes and impact of trauma, and the components of trauma-informed care.”(7)

— California SB493 includes three provisions where “trauma-informed practices” are required: during the investigation of complaints, and training for the gender-equity officer and other employees engaged in the grievance procedures must be on “trauma-informed investigatory and hearing practices.”(8)

Three major organizations that provide training to campus investigators have cautioned against the use of “trauma-informed” methods. In July 2019, law firm Holland & Knight issued a white paper warning clients that content of training will be analyzed closely, and training for investigators and adjudicators, including trauma-informed training, should be presented in a manner that is fully balanced, does not rely on sex-stereotypes, and promotes fairness and equity for both complainants and respondents (9). In August 2019, the Association of Title IX Administrators (ATIXA) released a statement to avoid the use of theories on the neurobiology of trauma to substitute for evidence (10). Likewise, End Violence Against Women International (“EVAWI”) recently issued a report that admits, “there is a legitimate concern that the scientific literature is currently being misinterpreted and misapplied in some trainings, and this can yield inaccuracies and inappropriate conclusions during the course of a sexual assault investigation.”(11)

The use of trauma-informed practices in providing mental health services to rape victims is appropriate and useful. But relying on quasi-scientific theories for campus investigations raises concerns about fairness and objectivity. More information on the scientific and legal problems with such “victim-centered” investigations is available on the SAVE website (12).

Citations:

  1. https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/
  2. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf
  3. https://casetext.com/case/norris-v-univ-of-colo
  4. https://www.leagle.com/decision/infdco20190509d22
  5. https://legiscan.com/NH/text/SB679/2020
  6. https://legiscan.com/MA/text/H4418/2019
  7. https://legiscan.com/HI/text/SB2311/2020
  8. https://legiscan.com/CA/text/SB493/2019
  9. https://www.hklaw.com/-/media/files/insights/publications/2019/07/fairequitabletraumainformed-investigationtraining.pdf?la=en
  10. https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2019/08/20123741/2019-ATIXA-Trauma-Position-Statement-Final-Version.pdf
  11. https://www.evawintl.org/library/DocumentLibraryHandler.ashx?id=1364
  12. http://www.saveservices.org/sexual-assault/investigations/

 Stop Abusive and Violent Environments is leading the national policy movement for fairness, due process and the presumption of innocence: http://www.saveservices.org/

Categories
Title IX

National Association of Scholars. Title IX Tool Kit

What is Title IX?

Why is Title IX controversial?

Why should Title IX concern NAS members?

Where does Title IX stand now?


What is Title IX?

Title IX refers to the 1972 Educational Amendments to the federal Higher Education Act of 1965. Title IX prohibits discrimination based on sex at schools receiving federal funds. Such schools include colleges, universities and also many secondary schools (high schools). It reads as follows:

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

Why is Title IX controversial?

Originally uncontroversial. Title IX was not originally controversial. It was well supported at the time it was enacted and was understood to be simply a guarantee that women should have the same educational opportunities as men. Courts confirmed this understanding by interpreting Title IX as protecting educational access.

The controversy started with athletics. Title IX became controversial later: During the Clinton Administration, Title IX was interpreted by federal agencies (such as the Office of Civil Rights or “OCR” in the Education Department) to mean parity in funding for college athletics – that is, schools receiving federal funds were required to allocate the same financial resources to female athletics as they did toward male athletics. As a result, many male sports teams – wrestling, baseball, swimming – were defunded while many female sports teams – lacrosse, volleyball, soccer – began to receive support. (In many instances, male football teams consumed inordinate resources, including scholarship money, leaving less for other male athletic programs.)

The controversy escalated when sexual assault was said to be discrimination. In 2011 the OCR under President Obama again caused controversy when it announced in a Dear Colleague Letter (“DCL”) that sexual violence was a form of sex discrimination prohibited by Title IX. That announcement, now referred to simply as “the 2011 DCL,” tasked college Title IX offices with finding and punishing sexual violence or lose federal funds. As a result, college administrators with no experience handling accusations of serious – even criminal – misconduct began acting as police, judge and jury in the politically charged area of sexual assault.

These controversies represent administrative overreach, not law. In both the Clinton and Obama-era directives, Title IX policy changes were neither by law nor by regulation but instead were advanced in Departmental correspondence, also called “sub-regulatory guidance.” Such initiatives are controversial in and of themselves as they have the trappings of law without actually having been enacted as law by Congress or by an agency via the rule-making process.

Due process protections eroded or absent. Just as concerning, neither the 2011 DCL nor the campus officials acting pursuant to it provided procedural protections to students accused of sexual misconduct such as the presumption of innocence, the right to know and respond to complaints, the right to confront witnesses and accusers, and the right to impartial decision-makers to resolve allegations.

Protections such as these are basic rights in the American justice system; they are referred to as due process of law.

In campus Title IX administration, however, such due process rights were largely cast aside in favor of support for those making sexual assault accusations and those wanting to find and punish sexual violence on campus.

Campus kangaroo courts, then lawsuits. Soon after the 2011 DCL, stories of kangaroo court experiences surfaced: Male students reported being summarily ejected from campus based on unproven complaints with no opportunity to respond; some recounted that Title IX administrators both investigated and adjudicated allegations (a due process red flag since such roles should be separate) who then found guilt with comments such as, “I bet you assault girls all the time.” Others were subject to complaints about incidents years earlier or subject to gag orders prohibiting them from discussing allegations, or defenses to them, even with family or counsel.

Female students often felt similarly shortchanged: Accusations against star athletes, for example, were allegedly processed more slowly and ended with lighter punishments.

Unsurprisingly, many students and their families became angry with these quasi-criminal tribunals, which seemed to operate lawlessly but with real power (consequences for those “found responsible” include suspension, expulsion and permanent marks on an academic record). They began to sue in real courts – to date almost 500 lawsuits have been filed – and often prevailed by proving either due process violations or conduct code violations or even Title IX violations, showing that the Title IX process itself constituted discrimination against male students on the basis of sex!

Why should Title IX concern NAS members?

Title IX gives destructive feminist ideology real power over disfavored (usually male) students. Title IX is an area of concern for NAS because Title IX administration, like much of academia today, is dominated by feminist, ideological thinking. However, unlike much of academia, the Title IX office has direct power to hurt targeted students, both in subjecting them to a lawless, quasi-legal process, often instigated by Title IX officers themselves and therefore with a pre-determined outcome; and by punishing them, often arbitrarily, with real damage to reputation as well as to educational and professional careers.

Title IX is too often political correctness – feminist anger at “toxic masculinity” – run amok.

Title IX is seeping into the justice system. Title IX poses risk also outside of campus: Due process denial is seeping into other types of adjudication – not only student conduct hearings but also into the legal profession. For example, many campus nondiscrimination policies utilize the concept of “affirmative consent” when evaluating sexual assault complaints; this concept imposes a legal obligation, mostly on men, to obtain explicit, verbal consent at every stage of sexual intimacy or face the risk of rape charges. This standard inverts the presumption of innocence but has been proposed repeatedly to the American Bar Association as the new norm to adopt in criminal proceedings.

Title IX’s promotion of “hook-up culture” endangers students, especially women. Further, visits to Title IX offices show a deep commitment to sexual promiscuity: Sex-on-demand, pornography-on-demand and abortion-on-demand are all promoted in brochures, pamphlets and condom distribution programs as a way of saying: “Women, just like men, can also have sex without consequences – equal opportunity love ‘em and leave em …”

This mentality is embodied in the term “hook up culture,” and includes the idea, expressed by one Title IX staff member, of “healthy hook ups”- transient, sterile and numerous sexual encounters as a healthy way to live.

This, of course, is both false and dangerously misleading to young people and especially to young women. It is precisely the hook-up culture that is giving rise not only to sexual misconduct allegations – including the phenomenon of regretted sex – but also putting students at risk of disease (sexually transmitted infections or STIs), depression, and abortion. All of these problems disproportionately plague women.

In short, the prevailing Title IX feminist ideology endangers all students –but especially female students.

By teaching sexual indulgence and victimization, Title IX robs students of real freedom. Finally, the hook-up culture that results in so many Title IX complaints (and therefore rationalizes Title IX administrator jobs) also teaches self-indulgence and instant gratification instead of self-restraint and self- discipline. It is the latter, however, that allows students to achieve both academic and professional success and also, ultimately, true freedom enabling a life of the mind and virtuous citizenship – the proper goals of higher education.

Where does Title IX stand now?

2011 DCL rescinded in 2017; new regulations proposed in 2018. In September of 2017, President Trump’s Secretary of Education, Betsy DeVos rescinded the 2011 DCL and in November of 2018, new regulations implementing Title IX were proposed; public comment on those regulations closed in early 2019. The Office of Budget and Management also received comments; those meetings conclude in April of 2020.

New regulations expected in 2020. The new regulations have not yet been formally issued; they are expected to be released some time later this year.

New regulations should restore due process. The new regulations go a long way toward restoring due process protections and clarifying the Title IX obligations of schools receiving federal funds (called “recipients” or “recipient schools”) For example, the proposed regulations require schools 1) to presume the innocence of those accused; 2) to give accused students the opportunity to learn the specifics of allegations and to respond; and 3) to hold live hearings at the college level, with the opportunity to cross-examine witnesses and accusers.

The proposed regulations also require a more objective definition of sexual misconduct that qualifies as sexual discrimination under Title IX, including that any conduct complained of result in denied access to educational opportunities. (Many schools had adopted expansive definitions of “prohibited conduct” with no reference to educational access.)

What can or should NAS members do about Title IX?

Title IX is broken. The hundreds of successful lawsuits against campus Title IX offices show that the current Title IX regime is broken. NAS members should be ready to point this out.

Secretary DeVos is trying to fix it. The effort to fix this broken system should also be commended and statements to support the Trump Administration, and Secretary DeVoss in particular, are encouraged.

A teaching moment? Time for a serious conversation about due process and sexual ethics. On campus, Title IX conversations actually present a teaching moment, so to speak: At issue are two areas of importance both for young people and for the country: First is the rule of law and the critical role of due process protections in any sound legal system involving accusers and those accused; second, is the matter of sexual ethics and the obligations and rights of both men and women when socializing or dating.

Hopefully, discussions can go beyond shallow name-calling and ideology to arrive at a greater understanding and appreciation of both legal and social norms.

Materials/Toolkit:

From Campus to Kavanaugh

OMB Remarks

ABA Affirmative Consent Comment

Categories
Title IX

Tenth Circuit: There’s nothing we can do about accused student’s ‘railroading’

An appellate court decision last week illustrates the uphill battle that often faces students who seek relief from unfair campus disciplinary proceedings in court — but several other recent decisions suggest a potential path forward for these students.

In its March 9 opinion in Doe v. University of Denver, the U.S. Court of Appeals for the Tenth Circuit acknowledged that a student’s sexual misconduct disciplinary proceeding appeared to have been nothing short of “a railroading,” but still dismissed his claims against the university.

The student plaintiff, John Doe, had sex with a fellow student, Jane Doe, in October 2014. Six months later, in April 2015, Jane’s then-boyfriend reported the encounter to an RA as a sexual assault. The university then contacted Jane, who filed an official complaint with DU’s Office of Equal Opportunity. The allegation was non-consensual sexual intercourse based on coercion, which the university defines as “‘unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will,’ such as ‘continued pressure’ after ‘someone makes clear that they do not want to engage in sexual contact.’”

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Among other things, John’s lawsuit alleged that in adjudicating his case, DU — a private university — had discriminated him on the basis of his sex in violation of Title IX. John made several arguments in support of this claim, but ultimately, the viability of his Title IX claim turned entirely on whether the court felt that obvious anti-respondent bias — at a school where 100% of respondents in recent years had been male — was sufficient to sustain a claim of gender bias.

First, John argued that the Office for Civil Rights’ 2011 Dear Colleague Letter, and the pressure DU felt to comply with it (as evidenced by a number of steps the university took in its wake) gave rise to “an inference of gender bias.” Like many other courts, the Tenth Circuit held that this alone was insufficient to constitute evidence of gender bias. Rather, John would have also needed to show evidence “that would indicate that DU’s decision in his particular case was based on his gender,” which the court held he had not done.

Next, John presented “statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU.” Specifically, “between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.” The court held, however, that there were many “nondiscriminatory explanations” for this disparity, so it could not be treated as evidence of gender bias absent “something like an affidavit from a knowledgeable person stating the school exhibits a pattern of prosecuting complaints against male but not female students.”

John also presented evidence of what he argued was gender bias in DU’s sexual misconduct proceedings, such as training materials referring to complainants as “survivors” and directing administrators to “communicate that you believe the survivor.” The court held that this “evidence demonstrates at most that DU had an anti-respondent or pro-complainant bias, which is insufficient to create an inference of anti-male bias.”

Finally, John presented extensive evidence that the university was biased against him in his own disciplinary proceeding. The court agreed that there was “colorable evidence” that the university’s proceeding was biased, based on the fact that the university (among other things):

  • “refused to follow leads that were potentially exculpatory”;
  • “disbelieved Plaintiff from the outset due to the ‘innate motive’ respondents have to lie about wrongdoing … while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews”;
  • “emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend”;
  • “suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication.”

The court wrote that “an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading.” (Emphasis added).

Then, in a remarkable passage dismissing John Doe’s Title IX claim, the court wrote:

We are not unmindful that the combination of this statistical disparity and overt anti-respondent bias—a combination not unlikely to recur with some frequency at other schools—raises palpable concerns that schools might be making a distinction without a real difference and that stereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies under the auspices of presumptions regarding an unprotected class (respondents). Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender.

This is the starkest exposition yet of something that a large number of courts have already held: egregious anti-respondent bias does not support a Title IX claim — even if most or all respondents are male — unless there is evidence tying that specifically to gender bias. That is because there is no claim under Title IX for “disparate impact”; rather, there has to be evidence of intentional sex discrimination.

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Due process

First, at public universities, obvious anti-respondent bias may be a constitutional due process issue. While Title IX is limited to remedying bias based on sex, due process requires a proceeding free of any sort of bias. Recently, several courts have held that evidence of anti-respondent bias was sufficient to sustain an accused-student plaintiff’s due process claim.

In Averett v. Hardy, No. 3:19-cv-00116 (W.D. Ky. Mar. 3, 2020), for example, the plaintiff alleged that the university’s investigator, who also served as the presiding hearing officer, was biased against him. Among other things, he alleged that the investigator only sought out evidence that confirmed his guilt, and that she “forced him to truncate his written witness statement which prevented him from fully presenting his defense.” The court agreed that this constituted a plausible due process violation.

Similarly, in Doe v. University of South Alabama, an Alabama federal district court held that the student plaintiff had plausibly alleged a due process violation based on “allegations that indicate there may be a personal relationship between individual defendants and accusers or interested parties,” resulting in impermissible bias.

Breach of contract

At both public and private universities, biased proceedings may also give rise to a breach of contract claim where the university promises a fair and unbiased process. In Doe v. Rollins College, the U.S. District Court for the Middle District of Florida used the same evidence to grant summary judgment to the college on the student plaintiff’s Title IX claim, but to deny summary judgment to the college on his breach of contract claim.

On his Title IX claim, the court held that while the plaintiff had cast articulable doubt on the outcome of the proceedings, he had not presented evidence of gender bias. The court agreed that the college had taken a “victim-centered” approach to the case, but, like so many other courts, held that pro-victim bias was not equivalent to gender bias.

The court then held, however, that Rollins may have breached its own policy promising to provide a fair resolution in disciplinary proceedings. Specifically, the court held:

[Plaintiff John] Doe did not provide sufficient evidence of gender bias for a Title IX claim, but he did provide sufficient evidence that Rollins favored the reporting student. Doe presented evidence Rollins didn’t treat him fairly or equitably—deciding he was responsible before hearing his side of the story and failing to follow procedures mandated by the Policy and Responding Party Bill of Rights. There is a genuine dispute whether Rollins responded fairly and equitably to Jane Roe’s allegation, precluding summary judgment.

In another recent decision, a New York federal district court found in Doe v. Syracuse University that by making a “result-driven determination” that was not “rationally based on the evidence,” Syracuse University may have violated its contractual promise to adjudicate sexual misconduct claims using a preponderance of the evidence standard.

Choose your claim carefully

These decisions illustrate that while Title IX claims continue to be an imperfect vehicle for accused students seeking relief from campus disciplinary proceedings that are stacked against them, those same claims of bias may prove stronger in the due process or breach of contract contexts, which do not require a showing that the bias was gender-specific.

Categories
Campus False Allegations Title IX

The Accusations Were Lies. But Could We Prove It?

We were at a friend’s doctoral graduation party on a Friday night at the end of March. I had a glass of wine in one hand and our toddler on my hip when Marta found me. “I got a really weird email,” she said.

The moon hung full over our heads, and all of us were in short sleeves, holding beers or wine and licking barbecue off our fingers while our kids played hide-and-seek in the dark.

“What?” I said.

“Something about me sexually harassing students,” Marta said, taking F. from my arms.

“What?” I said, louder this time.

“It’s probably spam,” she said, and then she disappeared.

That night we toasted our friend and her newly minted Ph.D. She thanked her husband for his help, her professors swapped stories about her and we toasted them for their mentorship. Afterward, we all wandered around the backyard talking about our kids or research or how perfect Arizona can seem in March.

When it was time to leave, I found our older daughter, N., standing on our friend’s bed with another little girl, who held a fistful of toilet paper and looked at me the way kids do when they’ve done something wrong. Strips of toilet paper littered the carpet, and I wondered whether one of them had peed her pants. Or maybe they’d had a toilet-paper fight. Or this was their version of snow in the desert.

“We’re gonna pull out her tooth,” the girl said before I could say anything, looking at N. and her loose front tooth.

I laughed. Later, I realized I never would have guessed that a tooth was at the center of that mess. Only a confession gave it meaning.

That night, after the girls fell asleep, Marta and I crawled into bed and pulled out our phones to reread the email she received. The anonymous sender wanted her to be aware that someone was posting about her on the message board Reddit. The email included a screenshot of the first post, which came from a person claiming to be part of a sexual-harassment case against Marta. “If you, like me, have been harassed by Dr. Marta, please contact the anonymous email line with A.S.U.’s Title IX Office,” the person wrote on the subreddit for our university, Arizona State University.

Ten minutes later, another post had gone up, ostensibly from someone else. “I attended a party at Marta’s house one night, where she got several graduate students drunk and then asked me to her bedroom. When I tried to leave she inappropriately touched me and I dropped her as my graduate adviser.”

I turned to look at Marta. She was staring at her phone. I reached out to touch her hip. “This isn’t spam,” I finally said.

That was last year, the year I turned 40 and, in the span of four weeks in January and February, flew to four different states to interview for jobs at universities and colleges in places besides Arizona. This is an experience in academic circles called “being on the market,” a phrase that people tend to speak with both resignation and trepidation, as when facing the pillory.

To go on the market, you first apply to dozens of jobs at universities, all of which require individualized application materials — cover letters, teaching philosophies, writing samples, research statements. Of the sometimes hundreds of people who apply to each job, only about 15 get a screening interview, and of those, only around three are invited to what is called a “campus visit,” a process that entails flying out to a college or university, sitting for interviews with anyone from students to the president, giving a talk or a reading, often teaching a mock class and then going out for a nice meal or two with a handful of faculty members who might one day be your colleagues. That winter, I had four campus visits, which meant I was lucky, which also meant I was exhausted. Marta stayed home with our girls each time I was away. Which meant she was exhausted, too.

My dream job was at the University of Michigan. They were looking for someone to help develop a potential creative-nonfiction concentration at the university, which houses one of the best creative-writing programs in the country. The faculty members I’d met were smart and kind and the students bright and assertive. And then there was the town itself: small, pretty and filled with great public schools.

It was the kind of place we had hoped to live ever since Marta and I met in Iowa City 10 years earlier. She was a Spaniard who grew up in the suburbs of Madrid soon after the death of Franco and later lived in London, Paris, Santiago and Beijing before moving to Iowa City for a graduate degree in linguistics. I had moved to Iowa for an M.F.A. in creative nonfiction after half a dozen years as a newspaper reporter in Florida and Texas. What most attracted me about her, besides the way she looked in a leather jacket, was how little she cared about what anyone thought of her.

What she liked about me, she said, was my independence. That and the fact that I’m generous, even when I get mad.

By the time I turned 40, we had been married for six years, had two kids and had moved twice for academic jobs, and professionally, each of us felt as if we were beginning to find our place in the world. My first book had come out; Marta was publishing articles and presenting regularly at conferences. We also each had tenure-track jobs, me teaching creative nonfiction, Marta Spanish linguistics, at a university we liked — if only it weren’t so far away from our families on the East Coast and from the small-town life we dreamed of when we first decided to have children.

“Can we please move to Michigan?” Marta joked several times after I got back from my January interview.

“Stop it,” I said. But sometimes before bed, I looked at houses for sale in Ann Arbor. I most loved the Craftsman bungalows with their wide porches and green lawns that, from the desert of Arizona, looked like a world someone else had dreamed up.

On Valentine’s Day, I flew out to Virginia to give a reading, and the next day, before flying home, I noticed that I had missed a call. Listening to the message, I heard the voice of a faculty member from Michigan asking me to call him back. He sounded as if he were smiling.

After I hung up the phone with him, I texted Marta: “JOB OFFER FROM MICHIGAN.”

I was told the offer letter would arrive soon, and in the meantime, the university would have a “dual-career coordinator” looking for possible jobs for Marta.

The following week, the same faculty member explained that a final committee approval meant we would have to wait a little longer. But then two weeks passed, and three, and four, and I still hadn’t received the contract, nor had we heard anything concrete about a position for Marta. I started to worry. “We shouldn’t have started looking at houses,” Marta said, only half kidding.

“We’ll hear something soon,” I said.

“Or not,” Marta said.

That was a joke between us. I always assume the news will be good. Marta is the dour Euro­pean. When I say something hopeful, she responds, “Or not.”

By the end of March, the job had begun to feel like something I’d imagined. I still looked at houses in Ann Arbor, but I had also started looking in Arizona again too. Our lease was up at the end of June, and we had to move either way.

That Friday, we went to our friend’s party, hoping that it would distract us from the anxiety of waiting. About halfway through, though, Marta got that strange email she thought was spam. And then, everything changed.

The first two Reddit posts about Marta were quickly taken down, but I kept checking the site all weekend. One more went up on Saturday, and another on Monday morning. The first complained about the previous posts’ being deleted. Its author wrote: “Lesbian professors, too, are capable of harassing students despite common narratives.”

But it was the second post that scared me. “Hi y’all,” it read. “I’m looking for advice. My linguistics professor has offered me wine several times in her office and acted inappropriately when I see her in various queer spaces in Tempe or Phoenix.”

The mention of wine and Marta’s office reinforced what I already felt I knew: that the accusations were false. Marta almost never used her office; she met students at coffee shops or via Zoom. And she rarely drank wine. Or went to any “queer spaces” that I knew of.

The use of “y’all,” though, made me stop. We were in Arizona. No one says y’all here.

I decided someone outside our university had to be behind the posts. But who? And why? Marta and I talked about it every night that weekend, after the girls went to bed, trying to remember an enemy she might have. We brought up former graduate students and classmates, colleagues and exes, but none of them made sense. I had one more idea, but I didn’t want to say it out loud. I felt guilty for thinking anyone might be doing this to her, to us — even though it was clear someone was.

After dropping off the girls that Monday morning, I wrote to the department chair at Michigan to check in. He responded right away. “I understand — and share — the wish for expediency here,” he wrote. “I’ve been told the deans hope to wrap this up by the end of this week.”

“Doesn’t that seem like an odd phrase?” I asked Marta.

“No,” she said. “Why?”

“‘Wrap up’ indicates a problem being solved,” I said.

The only good news was that Marta also received an email that morning from an associate dean at Michigan asking if she could talk the following day. “It has to be about a job,” I said.

“Or not,” she said, but she was smiling this time.

The next morning, I stood just outside the door of Marta’s study as she answered the associate dean’s call. I heard her say hello and how nice it was to finally talk. Then I watched her listen. She nodded. She looked up at me. She shook her head. She said, yes, that she understood. Then she wagged her finger, as if scolding hope. When she started to talk, it wasn’t about her research or teaching, but about the Reddit posts. I heard her say that as far as she knew, she wasn’t under a Title IX investigation, and she had no idea why someone said she was. I heard her promise to figure out what was going on. Then she hung up and looked over my shoulder at a shadow on the wall. “She told me they had credible information that I’m under a Title IX investigation,” she said.

“What?” I said.

“So,” she said. “It’s not great news.”

In academia, the phrase “Title IX investigation” is so common that we sometimes forget that many people have never heard the term. When I called my dad after Marta hung up with the associate dean and left to go teach, he asked me — once I stopped crying — what a Title IX investigation even was.

What it usually means, I said, is an investigation of sexual misconduct. We hear about them most often in cases of sexual assault — usually of a female student by a male student, usually in relation to the campus rape crisis. But Title IX also applies to faculty or staff: that professor who won’t stop asking his student out for drinks; that teacher who touches students on the arm, thigh, breast; that mentor who persuades her graduate student to sleep with her, even after he has said no.

We found out that Marta was under investigation later that day. The first accusation against her, we learned, had come in via A.S.U.’s anonymous reporting system at 5:21 a.m. on March 14, almost two weeks before we knew anything about it. It was sent by someone calling herself “Rebecca James,” who said she was a graduate student in Marta’s department.

“I have had two undergrads come to me and one fellow graduate student regarding Dr. Marta Cabrero,” “Rebecca” wrote. “Dr. Cabrero has put these students in sexually compromising situations. Inviting them to meet her in her office late at night — when the building is mostly empty — she has offered to help their careers (grad student) or grades and standing in the department (undergrad) in exchange for sexual favors.”

Reading that email, I remembered the year I arrived in Iowa. All the local newspapers were reporting on a professor who was accused of requesting sexual favors from students in exchange for higher grades. When confronted, he drove out to the same woods where I ran each morning and shot himself. I tried to imagine Marta in his place, asking to touch or kiss students in exchange for a grade. But I couldn’t do it. I know many spouses of sexual criminals say this, but I was sure: She just wasn’t the type.

What Marta obsessed over was that “Rebecca James” had referred to her as Marta Cabrero. In Spain, everyone has two last names. Hers are Tecedor and Cabrero. The first last name is the primary one, so people in her department would call her Dr. Tecedor, though most of the time, per her preference, everyone just calls her Marta.

Marta tried to explain the discrepancy to Melanie, the university investigator assigned to her case, during her first interview on March 28, but Melanie seemed unimpressed. “I do think it’s relevant to point that out,” she said, before pivoting back to a long list of questions she had: Did Marta meet with students at night? Did Marta offer alcohol to students? Did Marta ask for sexual favors from her students? Did Marta know anyone named Rebecca James? No, Marta said, no and no and no.

Melanie also hadn’t been able to locate a current student named Rebecca James in Marta’s department, but she said that the name could always be an alias, and she was still obligated to investigate Marta now that a “credible” accusation had been made.

Their interview at the university’s Office of University Rights and Responsibilities, which manages Title IX complaints, lasted almost an hour. Afterward, I briefly met with Melanie in a large conference room with a box of tissues on the table. She said she didn’t have anything to ask me, but she could answer any questions I had.

“We just want to figure this out as quickly as possible,” I told her. “It might have already jeopardized our job opportunities —” My voice broke.

I reached for a tissue. Melanie was young, probably in her late 20s or early 30s, with long straight hair and an impassive face. “You’re fine,” she said, though it was clear I wasn’t.

“If you can figure out that it’s an outsider or somebody from the outside that’s posing as a student,” I finally said, “can you just close the investigation?”

“Good question,” Melanie responded, her voice bright again. “Because of the funding that we receive through Title IX, we’re required to investigate everything. And with that we want to really run everything to the ground.”

I nodded. I knew that universities could lose federal funding if they didn’t show they were protecting students, and I was glad — I am glad — for that. But I was still confused. Melanie continued. “If we find out that — and Marta asked the question — if we find out that the information is false, for our purposes that’s not really our end goal; we’re just trying to determine whether or not there’s a policy violation.”

Listening to my recording of our conversation recently, I wondered why I didn’t stop Melanie at that point. Was she really saying that if they realized the accusations were invented, if the accuser herself was a fiction, they would still investigate? Did it not matter whether the complaints were true or false?

The first time I went on the academic job market was during the 2016 election. I sat for a Skype interview only a month and a half after giving birth to F., and only a month after Donald Trump was elected president. I was still bleary-eyed and foggy-headed from the birth and the lack of sleep that followed, and one interviewer asked me, given the recent crisis regarding fake news and alternative facts, what responsibility I thought writers of creative nonfiction had toward our collective understanding of truth.

My answer meandered into platitudes about truth being subjective and facts being contingent; I wasn’t invited to a campus visit for that job. But I’ve thought about that question a lot since then and how I might have answered it better.

A true story written about Marta and me at this point could easily include all the facts we know right now: that complaints were made about Marta, that Reddit posts appeared and that an investigation was opened. And if I were to read a story like that — without knowing Marta or me or any other facts that came to light later — I would conclude either that Marta had done it or, at the very least, that she was the kind of professor who crossed the line, and that her actions had been misconstrued. I would assume, that is, that even if some of the facts were wrong, the truth lay somewhere in the middle.

So while truth may be subjective, its balustrades are always the facts at hand. And in the case of our story, I quickly realized that we would never persuade anyone of what we knew to be true — that the accusations were invented — if we couldn’t isolate one key fact: who was making them up.

But Title IX investigations are a different genre of storytelling, so the facts the investigators want are different, too. As Melanie explained during that first interview, her investigation would end with what is called a “determination letter.” And that letter could offer only two story lines: Either Marta had violated a policy — and then there would be consequences for her job, including possible dismissal — or there was “insufficient evidence” that Marta had violated a policy, and we could presumably go back to the way things were before.

When I asked Melanie how long it would take for her to determine that there was insufficient evidence, she told me she couldn’t say — it depended on the factors, by which I think she also meant the facts. (Later a spokesman told me A.S.U. aims to close all sexual-harassment cases within 60 days.)

“For us this is purely administrative,” Melanie said at one point. In other words, Title IX investigations are not criminal in nature, even if they feel that way at times. This is why Marta wasn’t allowed to have a lawyer present during her interview, even as she was told that any of her answers could be used against her. And it’s the reason that even if we could prove that someone was targeting Marta, Melanie could never compel that person to talk to her if they weren’t part of our university. But also, that person would never face consequences for what they were doing.

The only way to accomplish that, a defamation lawyer told us when we set up a consultation with him, was if we pursued that person ourselves. Which brought me back to that question of y’all.

Sarah and Marta at home with one of their children.Credit…Ryan Pfluger for The New York Times

 

A couple of weeks after I was offered the Michigan job, an acquaintance of mine — whom I will refer to as J., though that’s not his real initial — reached out to see whether I planned to take it. I knew through friends that he had also been a finalist, and in his texts to me, he said he wanted to acknowledge the “weirdness” of the situation. J. told me he was miserable where he was living — a conservative town where it is difficult to be openly gay — and implied that if I turned down the job, it would be offered to him. “Don’t respond,” Marta told me. “He shouldn’t be contacting you.”

But I remembered how hard it was for Marta and me when we lived in West Texas for four years after Iowa and before we got jobs in Arizona, the way we were scared to hold hands while walking with our girls in the neighborhood. Then I imagined being a gay man in a similar situation, how it must wear him down. I remembered, too, how emotionally draining the academic job market can be.

I texted J. back. I said I wanted to accept the job, but we were waiting to hear if Marta would be offered a spousal hire. I promised to let him know as soon as we had more news. “Totally!” he wrote back. “That makes sense!”

But after that, he kept texting. He congratulated me on being a finalist for a book award and said he hoped negotiations with Michigan were going well. He asked for travel recommendations in Santa Fe and told me he was reading Jonathan Franzen’s new essay collection. “Any news?” he wrote midway through March, when my offer letter still hadn’t arrived. “I’ve been thinking of y’all.”

“I promise I’ll tell you once we decide one way or the other,” I responded.

“Thank you for being a good human,” he texted back.

Then on a Friday evening near the end of March, he wrote, “WHY ARE THEY DOING THIS TO US.”

That same night, the first Reddit posts went up.

“It has to be him,” I told Marta after her conversation with the associate dean, after I was finally ready to speak my fear out loud. I showed her his other texts. I told her how desperately he seemed to want the job. I mentioned how often he used “y’all” — in texts but also on social media.

Afterward, she didn’t say “or not.” She just stared at me. “But how do we prove it?”

March slipped into April, and I stopped sleeping. When I did sleep, I woke up from dreams that I was forgetting everything. I canceled my trip to a writing conference where I was supposed to present because I worried J. would be there, but then at home I kept scrolling through his social-media posts looking for clues.

I wrote draft emails to people at Michigan or A.S.U. filled with rhetorical arguments that I hoped would make them see the truth, but Marta would read them and say I sounded desperate or unhinged. “We just have to wait,” she said.

A friend had reached out to me by then about J., to let me know he’d been complaining for weeks that I was offered the job over him. He had also told others about Marta’s Title IX investigation — something he shouldn’t have known about on his own. After talking to that friend, I no longer doubted that he was behind everything that was happening to us. But I still had no idea how to prove it. (The New York Times reached out repeatedly to J. and a lawyer who has represented him for comment about this article. No one responded to the queries.)

Eventually, we decided to tell Melanie about our suspicions. She wrote back almost immediately: “I would actually like to meet with you both a second time, as I received some new information yesterday.”

We hoped she was dropping the case, or maybe she’d talked with someone from Michigan about the information they’d received, as we’d recommended. Instead, when we arrived and took seats together across the table from her, Melanie said: “I’ve received another anonymous complaint.”

The accusation had come from a different email and ostensibly a different person, someone calling herself “Jessica P. Newman.” It had been sent on April Fools’ Day.

The opening paragraph identified “Jessica” as one of Marta’s graduate students and repeated parts of the previous complaints. Then the email took a turn I should have expected but still didn’t.

“One night,” “Jessica” wrote, “Marta and her wife Sarah had a party for queer students and faculty at their house, and offered me glass of wine after glass of wine and eventually shots of whiskey. When most of the others had left, Marta asked to show me a painting in her bedroom, and when we entered, Sarah was on the bed, topless, and asked us to join her. I said I would be calling an Uber now, but before I could leave the room, Marta took my hand and placed it on her wife’s bare chest.”

The interview room we were in was smaller this time, and Marta and I sat on the same side of a table, reading the email together, while Melanie watched us. It felt like a test we were failing or a novel that had stopped making sense. I imagined everyone who would read or had read this email — Melanie, her supervisor, the university provost — and how they would all picture me topless on my bed, trying to seduce a student, while presumably my kids slept in their bedroom down the hall.

In closing, “Jessica” wrote: “I do not know how to proceed at this point, but thank you for your guidance. I do wish to remain anonymous at this time.”

When we finished reading, Melanie said she wanted to talk to us separately. I watched Marta leave the room and set my phone on the table to record the interview. Melanie told me I was now also under investigation and said she needed to ask me some questions. “I want to talk about these parties,” she said. “So tell me what that looks like.”

“So, there’s never been a party,” I said. I told her that we’d hosted two staid dinners for Marta’s graduate-seminar students. But at some point both evenings, I had put the kids to bed, and after that no one went near the bedrooms. “And I definitely was never topless on the bed,” I added, interrupting whatever question Melanie had next. I wanted to move past that part of the interview as quickly as possible, but saying the words out loud only made it worse — as if by negating the accusation I had somehow reinforced it. “I’m trying to think if we even have a painting.”

Melanie interrupted this time: “That’s what I was going to ask.”

I tried to picture our bedroom walls while she waited for me to answer. I saw a print of a map of Galveston hanging above our dresser and the antique mirror I bought at an auction in Iowa on another wall. Then I remembered a third wall, and my favorite painting hanging there. I’d found it at a garage sale while working my first newspaper job in Florida. It’s of an androgynous kid in a flat cap smoking a cigarette, looking out with a brazen stare I immediately loved. So much so that I’d put it in our bedroom — just as the email claimed.

And that fact — or the fact that one fact in my life lined up with a fiction being created about us — disoriented me. For a second, I could almost picture myself on the bed, just like what “Jessica” had described. “There is a painting, a small painting,” I told Melanie after a pause, and she took notes as I described it.

Before I left, Melanie asked if I still wanted to name the person we thought was behind the accusations. I told her I was worried that if she contacted him, things might escalate. But I also couldn’t think of anything else to do. I said yes.

That weekend, we went camping. We needed to do something normal. We needed to stop looking at our email, waiting for the next shoe to drop, the gun to go off.

The day before we left, we filed what is known as a “John Doe” lawsuit. The lawyer we had hired explained that the suit would allow us to subpoena identifying information associated with the emails used in the accusations and the Reddit posts, and once we had that proof, we could directly sue whoever owned those email addresses.

I also blocked J. on social media. I worried it might tip him off, but I couldn’t stand the thought of him having access to my life, to pictures of my kids.

We left town early Saturday, and as we drove into the mountains, I tried to stop going over the case in my head the way I had been doing for the past couple of weeks, like a mouse on a wheel, searching for a way off.

We got to Prescott by midmorning and found a spot overlooking a pine forest bordered by a stream. On a hike later that afternoon, F. tramped through brush and over rocks without complaints, and N. led us with a walking stick clutched in her fist. I realized I was finally thinking about something else, like how good a sudden breeze felt on my skin after sweating through my shirt, like F.’s dimpled legs moving so fast through the brush, like the sound of water falling somewhere we couldn’t yet see.

Afterward, Marta dropped F. and me off at the tent for a nap while she and N. went to buy marshmallows in town. I read F. a book in the tent and sang her a song, and then I looked at my phone and saw a text from a friend: “He’s stalking you on social media.” J. had apparently been asking friends we had in common to check if I was still on Facebook and Twitter. He wanted to know if I had blocked him or just closed my accounts.

A few minutes later, he texted me himself. This despite the fact that I hadn’t responded to any of his recent texts. Not the one in all caps the day the Reddit posts went up. Not the one the following Monday asking if I was going to that writers’ conference. Nor the one a couple of days before, which read, “How are you holding up, friend?” And I didn’t answer his final one either.

“I’m genuinely sorry if communicating with you made you uncomfortable,” he wrote. “I had hoped admitting to the awkwardness of the situation would make everything OK. I guess I was wrong, and I apologize.”

  1. moved around in the mound of sleeping bags, still not asleep. I felt sick. Part of me wondered if I was wrong. But mostly, I knew he was responsible and was scared by how easily he could lie to me directly — and by what he might do next.

My biggest fear — one I told no one but thought about every day — was that J. would call in a fake child-abuse accusation against us. Sometimes the fear would come out of nowhere. I’d be watching N. draw a picture of a sun behind a mountain made out of a coffee filter, and suddenly it would be there. The knock on the door. The woman introducing herself to us. The panic as we tried to reach our lawyer. Some days I could almost smell the caseworker’s perfume, hear her polite request to interview each child separately, alone in a room where we weren’t. I thought about our house. All the toys we hadn’t found time to pick up. The smell of F.’s last diaper in the kitchen trash can. The bruise on her knee from falling down at day care. I thought about a line in the email from “Jessica,” how she wrote that she felt powerless.

I put away my phone and gave F. a hand to hold, but neither of us could fall asleep.

When we got back in town, Melanie wrote to ask for another meeting. Again, she had new information, and again, we hoped that meant she was closing the case. Instead, she said that she’d been able to talk to Michigan, and they had sent her all the emails they’d received.

“Emails?” I thought. We had assumed there was just one.

Melanie told us that she had put them in date order, and she would go through them and then we could talk. She sounded more tired than she had in our previous interviews, and I realized this was probably wearing her down too. The constant bombardment of information. The feeling that none of it made sense.

But she never said as much. It seemed clear she was beginning to believe us, but she also kept reminding us that she couldn’t close the investigation until she had “examined all of the information.” That included talking to Michigan; it included interviewing Marta’s students and colleagues, and mine as well; and now it also included an upcoming appointment to talk with “Jessica,” who had recently emailed that she was willing to meet with Melanie in person — but not until the following week.

“I assure you I’m doing all I can to wrap this up as quickly as possible,” Melanie had written to us when we once again asked her about the timeline. And perhaps in testament to that fact, she had asked us to come meet with her that day — and she had received permission from the university’s lawyers to share the stack of emails on the table before her.

The first few emails, she told us, had been sent from the same email address used to file the original accusation against Marta, the one ostensibly from a student named Rebecca James. Only this time, the author claimed to be a colleague of Marta’s named R. Orlich. She told the associate dean at Michigan that she was reaching out because she had heard that Marta was being considered for a spousal hire. “I wanted to make you aware, especially in this moment of reconciliation for folks who abuse their positions, that we are investigating three credible allegations against her putting students in sexually abusive and compromising situations.” The email was sent on March 6 — the day after J. first texted me about the job.

Less than a week later, “R. Orlich” emailed again to say that two new students had come forward. “ASU will likely settle the case quietly,” she wrote, “but you should be aware, I believe as someone who believes in the university as a safe space for people to learn and grow, that Marta’s behavior has been abhorrent and completely unacceptable.”

After that, the remaining emails came from “Jessica P. Newman,” Marta’s supposed graduate student. These emails were sent to the same department chair with whom I had been communicating about the job. “Dr. Cabrero should not be working with students, and I shudder at the thought that this problem will leap from university to university,” the first one read. “It is, I have now found out through a graduate colleague, why she left her previous university as well — the sexual manipulation of students under the guise of mentorship.”

Subsequent emails from “Jessica” included screenshots of the Reddit posts, a screenshot of a supposed email between Marta’s colleagues discussing her removal from a dissertation committee “given the recent investigation into Dr. Cabrero’s relationship with students in our program” and a warning that both The New York Times and The Chronicle of Higher Education would most likely be coming out with articles about Marta’s supposed history of abuse soon.

Rereading the emails later, I could see how they capitalized on real weaknesses in academia: the way that harassers are often passed on between institutions, the fact that graduate students have so few rights — and are so dependent on their faculty mentors — that they fear going public with stories of abuse and then all the other realities that have come to light with #MeToo, realities that have been lived experiences for both Marta and me, and for most women we know.

But at the time of that meeting with Melanie, as she read parts of each email aloud to us and waited for us to react, what I felt was stunned — at the audacity and expansiveness of this whole story that had been written, and believed, for weeks about Marta, and me, all without either of us ever knowing.

“The reason that I contacted you,” Melanie eventually said, “is because I got another email from Michigan today.” The email, she told us, was titled “Text Tonight,” and in it, “Jessica” wrote, “I am turning this over to the authorities and wanted your administration to have this text message from Marta as well.”

Melanie then read out loud what she said was a screenshot of a text between Marta and “Jessica”:

“Marta: Jessica, we need to talk

Jessica: Please stop contacting me. All communication needs to be processed through the Title IX coordinator, as you know.

Marta: We will ruin your career. I will make sure you never get a job once your dissertation is done. My wife and I are well-connected.”

Marta exhaled loudly. I held my breath.

“I know,” Melanie eventually said. “I understand.” She told us that she had checked several key facts and disproved them one by one: There is a Professor Orlich in Marta’s department, but she hadn’t sent any emails to Michigan. Marta’s colleagues also denied emailing about her and said she had never been taken off a dissertation committee. And not only was there not an A.S.U. graduate student named “Rebecca James,” there also wasn’t any named “Jessica P. Newman.”

I felt something tight in me release. “Does this mean,” I asked, “at this point you can actually close the investigation?”

But Melanie shook her head. “Jessica,” she reminded us, had scheduled that appointment with her to talk. And even though we now knew that “Jessica” didn’t exist, Melanie said she still had an obligation to see if she showed up for the appointment she’d made.

I took the girls to school that Thursday, and when I got back home, Marta was outside pacing. She’d been calling me for the past half-hour, but I hadn’t had my ringer on. “Melanie called again,” she said, her voice flat.

“Jessica,” it seemed, was now claiming that Marta had showed up at her apartment on Monday. “But we met with Melanie on Monday,” I said, as if that were the least believable part of the whole scenario.

“Melanie said it was in the afternoon,” Marta said. “We met with her in the morning, so now Melanie wants to know what I did that afternoon.” She was shaking. “Sarah,” she said. “I couldn’t remember. I said I thought I was home working, but I really can’t remember.”

My first thought — and I still can’t reckon with this — was doubt. We knew “Jessica” wasn’t real, but I couldn’t understand why Marta didn’t remember where she was on Monday afternoon. That was only three days earlier.

I felt the stick of my sweat from the morning heat. I tried not to say anything critical. “My phone!” Marta said, suddenly breaking the silence. She pulled out her iPhone quickly, and began scrolling through the GPS data. After a minute, she found a little blue dot proving that she had, in fact, been inside our house that whole afternoon. Until about 4:30 p.m., when she went to get the kids. I felt my chest release. But below that lay shame. Why did I believe her only once her phone told me she wasn’t lying?

What Marta didn’t tell me until later was that Melanie had also asked her about an email that “Jessica” claimed Marta had sent her that same week. Again, “Jessica” had sent a screenshot of the email instead of the email itself. “You wanted to sleep with us, or at least that is what your body was saying,” Marta supposedly wrote. “In Spain this would never happen. People understand their bodies and desires there.” It closed: “Be careful what you do. You need to text me back.”

“Why didn’t you tell me about that before?” I asked after Marta eventually summarized the email. My stomach tightened again. Marta shook her head. We were walking the dog before going to pick up the girls that afternoon. She had been on the couch all day, almost comatose. “There are just too many things,” she said.

On days like that — when I saw Marta destroyed or when I thought about all the real victims out there, afraid to come forward — I was angry at J. Other days I was scared of what he would do next. But I also worried about him too — even if everyone I knew told me I shouldn’t.

Before I blocked him on social media, J. had posted a lot about being unhappy. Friends kept me updated on what he was saying or doing, and at times he seemed to be getting worse. He posted that he had an ulcer, that he was taking a mental health day, that his father was sick. Sometimes I feared that once we had the proof we needed, once all the bricks came tumbling down around him, he might hurt himself. What I hadn’t remembered, though, is that sometimes when the house falls down, we move on and rebuild in other places, new structures made from the same materials but shaped to tell a different story.

Around the middle of April, J. learned about our lawsuit. That same day, he started telling people that he was being trolled online. Homophobic comments about him were posted on the subreddit for his university that afternoon, and an anonymous letter was sent to his university mailbox that read “Die fag professor” later that week. He even did a presentation about the harassment as part of a panel at his university on discrimination, subtext and the power of language. The audience was outraged and horrified.

“That’s a classic horror-movie move!” a friend of mine said when I told her what was happening. “The villain injures himself.”

If J. were the villain, though, that meant we were the victims — and at some point, I realized we were. Later, I wondered why it took me so long to recognize that.

One reason, I think now, is because at the beginning of this story, we were given the role of perpetrators. I spent so much time trying to prove we were innocent that I didn’t think to question the parameters of the narrative itself.

Once we began sharing what was happening to us with others, almost everyone we knew was aghast, horrified. They said they’d never heard of anything like this. But now I wonder how true that is. Think about so-called deepfakes, those women’s faces being fastened on the bodies of porn stars and passed around. Think about the trolling and doxxing of women online. Our story is more akin to those tales than anything that has to do with Title IX. But because the narrative got started one way, it was hard for us, and even harder for academic institutions — who “must investigate all allegations of discrimination, harassment and retaliation,” as an A.S.U. spokesman later told me — to change direction.

When I finally recognized that we were the ones being harassed, I wrote to Melanie and asked for help. She recommended that I contact the university’s victims’ advocate, who works with the police. I left a message explaining our situation and my fear. I never got a call back.

We also asked our lawyer about a restraining order, but he said we needed proof that the person we thought was harassing us really was harassing us. And we didn’t have that yet — we were still waiting for the results of the subpoenas.

Eventually, I wrote to the president of A.S.U. He had told us during our faculty orientation that we should always feel free to reach out directly to him, so I decided to take him at his word. I told him that someone had been using the university’s Title IX process to harass us, that this person had impersonated students and faculty members and had posted false statements about Marta on Reddit. I explained that there was no evidence that either Marta or I had done anything wrong, yet the Title IX office had told us that it could not close its investigation if emails kept coming in from this anonymous individual. “We are strong believers in the importance of Title IX protections,” I concluded, “but we also feel like there has to be a system in place to protect faculty and students from outsiders who might use that system to defame and harass.”

That afternoon, I received a response from the vice provost, who assured me that investigators were being urged to move expeditiously. “I know it can be frustrating to wait for findings,” she added, “but we are obligated to look into allegations that are brought to us.”

Two weeks passed. We met with Melanie and her supervisor and were told that, in the future, anonymous accusations would be fact-checked before new investigations were opened. Melanie told us she had started writing up her report, but she said she couldn’t give us a timeline for its completion. I wrote again to the vice provost. She said the report was now with the provost, and we could expect an answer soon.

The last weekend in April, we planned to drive up to the mountains again to camp with the girls. In the car that Friday evening, I checked my email from my phone and saw that the provost had written to us at 4:58 p.m. I read the email out loud to Marta as she drove. His determination letter found no credible evidence of a policy violation. “Respondents 1 and 2 are both highly regarded in their respective departments and both received much praise and adoration in their course evaluations from students,” the letter concluded. “Both credibly denied all of the allegations against them.”

Two days later, as we were rolling up our sleeping bags and folding the tent into neat triangles, I received the official offer letter from Michigan — two and a half months after that phone call telling me I had the job. We also got word that the job search for Marta had begun again. “It’s over,” I said.

“Or not,” Marta didn’t say. But she should have.

Our house was half packed when we received an email from our law firm with the first response to our subpoenas. It was for the email account used by both “Rebecca James” and “R. Orlich.” The released information was a mere three pages, and we first thought it held nothing important. But just as Marta was walking away, I noticed a line indicating that the account had been verified and listing a phone number. “Marta,” I said too loudly, “where’s my phone?”

I was shaking as I tried to call up J.’s last message. I was nervous I would accidentally call him. I felt as if I was doing something wrong. But then, there it was: an exact match.

The account had been opened the same day J. first texted me about the job. His phone had been used to verify the account. And the I.P. address, when we checked, was from the town where he was living at the time. “We’ve got him,” I said.

And for the smallest moment, it felt as if our story actually had come to an end. Because the way I wanted it all to end was like this: Marta would be offered a spousal hire at Michigan, and I would accept a dream job teaching creative nonfiction. We would find a cute Craftsman house in Ann Arbor in which to move the boxes that had been accumulating all around us. The kids would be happy, and so would we.

But also, J. would admit what he had done to us. He would pay our legal fees, and we would all agree to move on. Maybe he’d issue a public apology. Maybe there would be a moment of reckoning in which I could forgive him. Maybe he would even write a memoir about what an awful person he had been.

But we rarely get the stories we want, and so here is how this one ends. Marta was not offered a spousal hire. After waiting another month and a half while a dual-career coordinator tried to find something for her, after ordering two PODS containers in which to store the boxes of all our belongings while we waited, after telling day cares and schools and parents and friends and colleagues that we still didn’t know where we would be living the following year, Marta was eventually told that there was no job the University of Michigan could offer her. Delaying the search until after the end of the semester was part of the problem, but it was also possible that Michigan would never have been able to find something for her. In which case, if J. had just waited, he might have been offered the job anyway.

And so, at the end of June, I turned down a job I was offered four and a half months before.

We also named J. as a defendant in our suit. I worried at first about what he would do when he received the news, but as far as I know, J. did not try to harm himself. Instead, he began reporting that someone was trying to hurt him. Four days after he was served, J. posted that his university and private email accounts had been hacked. His colleagues started receiving emails from those accounts with messages calling him a faggot.

Five days after he was served, J. claimed he received an anonymous email from a so-called burner account. In that email, someone claiming to be his stalker wrote that he was in love with J. and that being rejected by him had caused “a mental break i cannot explain.”

“i began trolling you online, sent death threats, broke into your house when you were gone,” the person wrote. “i tried to [expletive] up your job applications by getting into your [work] email, i trolled a friend of yours in arizona…”

The confession read like the end of a “Scooby-Doo” episode, when the mask is pulled off and the criminal lays out his line of transgressions. It was the kind of confession I had once hoped J. would give us.

A week after J. was served, he emailed the police at his university to say that his stalker had thrown a rock through his car window. He attached a photo of the shattered glass, along with a handwritten note that read “STOP TRYING TO FIND ME.”

By the time a response was due from J. regarding our lawsuit, I already knew what he would say. All the bricks came tumbling down, but they had been rebuilt into enough of a structure that the only way to prove his story false would be to go to court. We had paid more than $10,000 in legal fees at that point. Our lawyer told us that taking the case to court could cost tens of thousands more. We thought about it. We argued about it. But in the end, we decided we weren’t willing to pay for more truth.

I think a lot about that scene of snow and two little girls on a bed, one with a loose tooth. How facts are like that. They tell different stories depending on who is picking them out and placing them in a narrative line. The most reliable way to find the truth in any moment is to have someone come clean, the way that little girl did when I entered the room. But I don’t believe J. will ever do that.

At the end of July, we settled our lawsuit. Per that agreement, we can write or say anything we want about what happened. We can tell the whole story, using any and all of the facts. But we made one major concession: We cannot use J.’s real name.

At the time, the concession seemed worth it if it meant ending a story we needed to stop. But in the weeks and months since, I’ve wondered if we made a mistake. I think about all the people — friends, colleagues, students — whom J. will most likely continue to fool. I think how we never really know who is behind anything we read. Unless we have a physical person to pin it to. But then I realized this story isn’t about J. It’s about us.

If I could return to that job interview from more than three years ago, to that moment when I was asked about my responsibility as a creative-nonfiction writer in the post-truth world, I know what I would say now: Our allegiance as nonfiction writers is not so much to truth as it is to honesty. Because truth can be spoken into a void, while honesty implies an audience, a reader, real people to whom you commit to tell your story as accurately and truthfully as you can so that they can then differentiate for themselves the facts from the lies, the truth from the fiction.

I’ve done that here. Now the story belongs to you.

Source: https://www.nytimes.com/2020/03/18/magazine/title-ix-sexual-harassment-accusations.html?action=click&module=Top%20Stories&pgtype=Homepage#commentsContainer

Categories
False Allegations

False Allegations Harm True Victims

False allegations have become a major barrier to victims of sexual assault getting the help they need. As trivial and false claims clog the system and consume scarce resources:

  • Victims are less likely to report the crime because they worry they won’t be believed
  • Police are less likely to investigate
  • Jurors are less likely to believe the victim
  • Shelters and other social services are forced to turn persons away

Now, a growing number of persons are speaking out on the problem of false allegations:

  • Rape is No Joke: “Enormous damages are done by making a false allegation of rape”
  • DA Hallie Dixon: “False reporting…can be detrimental to the prosecution of legitimate crimes.”
  • Judge Kevin Kilrane: False accusers do “tremendous damage to genuine victims of rape who are going to be undermined.”
  • Judge Stephen Hopkins: “Every false allegation of rape increases the plight of those women who are genuinely victims of rape.”
  • Justice Enriques: “False complaints of rape necessarily impact on the minds of jurors trying rape cases.”
  • Columnist Andrea Peyser: “This could present a huge problem for future rape victims.”
  • Columnist Myron Pitts: “Real victims of assault are never helped by phony claims. It is already difficult enough for women to report to police such a traumatic experience.”
Categories
Campus Sexual Assault Title IX

OCR Is About to Rock Our Worlds

ATIXA, the association of Title IX administrators I serve as president, anticipates publication of the final Title IX regulations in the Federal Register within the coming weeks. The federal government last issued Title IX regulations in 1975, so this is somewhat unprecedented. The proposed changes are far more sweeping than the 2011 Dear Colleague letter promulgated by the Office for Civil Rights (OCR). The changes coincide with a due process revolution occurring in some federal courts, as well, with respect to college and university disciplinary processes.

What Will These Changes Mean for Higher Education?

Perhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications. Many of the more controversial changes will probably be addressed by a future Congress or through litigation. Some of the proposed changes included in the draft that OCR shared publicly last November may not make it into the final rule.

Most of the changes revolve around due process, which protects all of us, regardless of our campus role or status. They include provisions requiring more substantive written notice to the respondent of the nature of sexual misconduct allegations, the right of the parties to review investigation materials prior to a final determination and the right to a written rationale for the outcome and any sanctions assigned. For the most part, these are rights you would want to protect you if you were accused — rightfully or wrongfully — of sexual misconduct.

What Do We Do Now?

We at ATIXA suggest that colleges and universities continue to honor “best practices” commonly adopted by the higher education field, while moving gradually toward implementing the changes that the regulations will require. Some changes, like equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for institutions to provide broad-based supports and resources to victims of sex discrimination, such as counseling services, academic accommodation and housing changes. Now, OCR is making clear its expectation that those supports and resources also be offered to respondents. Many colleges already do so, but OCR wants to ensure uniform provision of services by all funding recipients.

Similarly, colleges can act now to extend all VAWA Section 304 rights to parties in sexual harassment cases. In 2014, Congress enacted amendments to the Violence Against Women Act (VAWA), which now are incorporated into the federal Clery Act. These changes codified as law some provisions of Title IX that were previously only proffered as regulatory agency guidance and added many provisions requiring training and prevention by colleges. Oddly, the protections of VAWA Section 304 only extended to what have become known as the “big four” offenses of sexual violence, dating violence, domestic violence and stalking. That created an asymmetry because Title IX protections include not only these four offenses but also conduct like sexual harassment and disparate-treatment sex discrimination that VAWA does not. Institutions were left with two competing laws that did not fully parallel each other. OCR’s proposed regulation logically aligns VAWA and Title IX so that rights do not vary by the type of sex offense alleged.

Thus, institutions can take steps such as providing written notice of the outcome of an allegation to all parties, not just in the big four offenses, but for sexual harassment, too. Additionally, institutions can ensure equitable provision of advisers across all cases impacted by Title IX, not just for those involving the big four.

These kinds of changes will give administrators a head start on compliance before the regulations are even released. Once released, there will be an implementation grace period of perhaps 90 days to as much as 12 months from publication of the final rule to allow colleges and universities time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.

What Do We Do When the Regulations Are Published?

Higher education needs to move toward compliance or to decide to litigate the validity of the regulations against the U.S. Department of Education — or both. OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice-and-comment period. The pressure is on for OCR to make it clear in its responses that its rules are rationally related to the statute, especially with a U.S. Supreme Court that appears increasingly hostile philosophically to agency rules.

Once OCR publishes the final rule, it will expect good-faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, colleges and universities will need to become compliant.

It took the higher education field three to four years to fully implement the 2011 guidance, but that kind of lethargy won’t be an option with these new regulations. They will have the force of law behind them rather than simply serving as guidance. Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.

The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision. This rule will create a chilling effect on reporting parties and, it will be argued, is beyond the scope of OCR’s authority to enact under the statute. Similar arguments could be made to collaterally attack OCR’s proposed requirements for live hearings and cross-examination facilitated by the parties’ advisers. In fact, activists aren’t the only cohort likely to attack such provisions, as some private colleges are also planning to litigate any attempt to impose a live hearing requirement on them, and have already funded a significant war chest to do so.

Within this highly politicized crucible where any action or inaction will catalyze litigation, institutions need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed. Faculty grievance processes will be an issue that administrators will have to face and resolve now, if they didn’t back in 2011. OCR is forcing the issue, and Title IX offices are probably going to be between a rock and a hard place — with faculty members who advocate for additional protections, such as clear and convincing evidence as a standard of proof for those accused of sexual assault, while others strongly advocate for preponderance of the evidence.

What Do We Do If We Don’t Agree With Some Provisions Within the Regulations?

About 20 to 25 percent of the regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need as a field to find ways to work within those requirements, challenge them in court or find clever work-arounds. Proposed provisions on notice, mediation, mandated reporting, live hearings and cross-examination could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways.

Let’s drill down on each of these proposed provisions a bit. OCR seeks to limit the ways in which recipients are legally put on notice of sex discrimination. Institutions might see this as a welcome safe harbor, but why would colleges and universities want to make it harder to report and respond to incidents? The opening of access and “no wrong doors” approach to intake has been one of the most valuable and enduring legacies of the 2011 guidance, and it has resulted in substantial increases in reporting of incidents for most colleges.

OCR also now plans to remove the “soft ban” on mediation of sexual violence it implemented in 2011. The vast majority of sexual harassment claims can and should be resolved informally, but we need to be sure that the parties are participating voluntarily and not being pressured to minimize the severity of what has happened to them. And many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence. Lower-level sexual harassment is very amenable to resolution via mediation, but the data on whether the same is true for violent incidents is much less conclusive.

Live hearings and cross-examination are the most controversial provisions of the proposed regulations. Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges. It will take a strong person to be willing to go through a process where they will be subject to cross-examination by the other party’s lawyer. And, importantly, no research indicates that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct allegation a full and fair opportunity to review and contest all evidence prior to a final determination.

In light of all of this tumult, perhaps the healthiest mind-set is to view the regulations mostly as setting a floor for compliance and to institutionally commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside it, where we can.

What is clear is that the pendulum is about to swing too far, again. The regulations have the potential to create significant public backlash, especially if colleges are seen as institutionally deprioritizing Title IX compliance in the coming months and years. Potential victims need to see you strengthening your program, not backing down. They are likely to perceive barriers to coming forward in the new rules, and administrators need to do everything possible to reassure potential victims that the Title IX office is still here for them, and that you’ll do everything not prohibited by the regulations to make reporting easier, offer services and resources, establish a process that is transparent and user-friendly, and avoid revictimization.

Regardless, some activists may turn some of their frustration with OCR on you, and we encourage you to be sympathetic, to encourage their voices and to be thoughtful about the ways that remedies-only and informal resolutions may be used to ameliorate or exacerbate the effects of the changes that OCR is catalyzing.

One thing is for sure — defining and maintaining sex and gender equity programmatic excellence in an environment of regulatory change, politicization of Title IX and fervent litigation will be among the most pressing challenges facing colleges and universities in 2020 and for some time to come.

Source: https://www.insidehighered.com/views/2020/01/15/how-respond-new-federal-title-ix-regulations-being-published-soon-opinion

Categories
Campus Sexual Assault

Right to counsel, right to confrontation among due process rights afforded to Arizona students under 2018 legislation

In 2018, Arizona enacted HB 2563 (now Ariz. Rev. Stat. § 15-1866), a bill on campus free speech that FIRE criticized for missing the mark in some key respects. FIRE’s analysis of the bill focused exclusively on the aspects of the legislation that affected students’ free speech rights. We recently revisited the bill’s language and found that the final version, while still flawed on free speech grounds, greatly expanded the procedural safeguards guaranteed to students enrolled at public institutions of higher education who are accused of misconduct. So today, we are pleased to belatedly report on the robust procedural protections provided by the statute. The relevant language in the statute reads:

In all disciplinary proceedings involving students, including proceedings involving expressive conduct, a student is entitled to a disciplinary hearing under published procedures that include, at a minimum, all of the following:

(a) The right to receive advanced written notice of the allegations.

(b) The right to review the evidence in support of the allegations.

(c) The right to confront witnesses who testify against that student.

(d) The right to present a defense.

(e) The right to call witnesses.

(f) A decision by an impartial person or panel.

(g) The right to appeal.

(h) If either a suspension of more than thirty days or expulsion is a potential consequence of a disciplinary proceeding under this section, the right to active assistance of counsel.

The original text of the bill limited the above rights to only those situations where a student was facing campus discipline for allegedly disrupting a campus event. The final text, however, applies these rights “[i]n all disciplinary proceedings involving students.” This significant change means that any student at a public institution of higher education in Arizona now has all of the substantive rights listed in the statute, including the right to receive advanced notice of the allegations, the right to review evidence, the right to confront adverse witnesses, and other key rights. (The statute only requires the school to share the evidence that supports the charges, however. Unfortunately, it does not require disclosure of exculpatory evidence in the university’s possession.)

Perhaps most importantly, in cases that could result in a suspension of more than thirty days or an expulsion, the student is entitled to active assistance of counsel. This is an incredibly important development that Arizona students need to be aware of, so they can fully exercise their rights. While FIRE will continue to urge the legislature to amend the legislation to fix the free speech problems it presents, we are excited to get out the word about the strong due process provisions now in effect.

Source: https://www.thefire.org/right-to-counsel-right-to-confrontation-among-due-process-rights-afforded-to-arizona-students-under-2018-legislation/

Categories
Campus Department of Education Scholarships Title IX Equity Project

PR: The 85 Worst Universities in the Nation Offering Scholarships that Discriminate on the Basis of Sex

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

 The 85 Worst Universities in the Nation Offering Scholarships that Discriminate on the Basis of Sex

WASHINGTON / March 16, 2020 – The Title IX Equity Project today is releasing a list of 85 colleges and universities in the nation with severe violations of the federal Title IX law that bars sex discrimination in schools. These 85 institutions offer at least 10 more scholarships for female students, compared to the number of scholarships for male students. The 85 colleges are located in 34 states across the nation: AL, AZ, CA, CO, FL, GA, ID, IL, IN, IA, KS, KY, LA, MD, MA, MN, MS, MO, NV, NH, NJ, NM, NY, NC, ND, OR, PA, RI, SD, TN, TX, UT, VA, WA, WI, and WY.

One of the worst offenders in the country is the University of Missouri – Columbia, which offers 70 scholarships for female students, and one for male students. The 70 female-only scholarships address a broad range of academic fields, including medicine, education, journalism, art, and other areas. The sole scholarship for male students, the Eric G. Rowe Scholarship Fund, is reserved for “deserving farm boys” who plan to attend the university’s School of Agriculture (1).

On September 20, 2019 the SAVE Title IX Equity Project sent a letter to Chancellor Alexander Cartwright listing the discriminatory scholarships and requesting a substantive response. The University never replied. On January 28, 2020, the Title IX Equity Project filed a formal complaint with the federal Office for Civil Rights, alleging a willful breach of federal non-discrimination requirements. The decision whether to open a formal federal investigation is pending.

Such disparities not only violate federal law, they offend basic notions of fairness. At the University of Missouri – Columbia, female students outnumber males, 11,789 to 10,695 (2).  Nationwide, 56% of undergraduate students are female, and 44% are male (3).

The listing of all 85 universities is available online (4).  The federal Office for Civil Rights is currently investigating over 80 sex-discrimination complaints that were filed by parties alleging discrimination against male students (5).

University of Michigan-Flint professor Mark Perry has commented ironically, “universities would never tolerate any special preferences for men or discrimination against women, but on the other hand, they not only tolerate discrimination against men and special preferences for women, but they actively promote, fund and endorse illegal discrimination…The illegal discriminatory programs are not being corrected internally despite huge staffs of diversity officers.” (6)

Citations:

  1. https://endowedscholarships.missouri.edu/SelectAllSchoalrship.aspx?action=Y
  2. https://www.collegetuitioncompare.com/edu/178396/university-of-missouri-columbia/enrollment/#gender-block
  3. https://nces.ed.gov/fastfacts/display.asp?id=98
  4. http://www.saveservices.org/equity/scholarships/
  5. http://www.saveservices.org/equity/ocr-investigations/
  6. https://www.aei.org/carpe-diem/an-interview-about-my-title-ix-complaint-vs-uw-stout/