Author: saveadmin

Federal judge refuses to block campus sexual assault rules

Post author By saveadmin
Post date August 13, 2020

WASHINGTON — A federal judge on Wednesday allowed the Education Department to move forward with new rules governing how schools and universities respond to complaints of sexual assault.

The rules, which take effect Friday, expand the rights of the accused, narrow the definition of sexual harassment and reduce the scope of cases that schools are required to investigate, among other changes.

In a suit challenging the rules, attorneys general from 17 states and the District of Columbia argued that the policy would block schools from investigating certain sexual abuse complaints and would discourage students from reporting assaults.

“As a result, fewer sexual harassment complaints will be filed, and schools will be less well equipped to protect their students’ safety and rid their programs and activities of the pernicious effects of sex discrimination,” the suit said.

But US District Judge Carl. J. Nichols rejected those arguments.

“Plaintiffs are free to investigate and punish as violations of their codes of conduct or of state law behavior that does not meet the new definition of sexual harassment under the Final Rule,” Nichols wrote.

He also turned aside an argument that the rules would bring heavy costs for schools and limit their ability to respond to the coronavirus pandemic.

“The Court recognizes the obvious seriousness of the COVID-19 pandemic,” he wrote. “In fact, for these and other reasons, a later effective date might have been a preferable policy decision.”

Still, he said, the Education Department took the pandemic into account when it issued the new rules, and schools have long known that a new policy would be coming.

Education Secretary Betsy DeVos said the ruling is “yet another victory for students and reaffirms that students’ rights under Title IX go hand in hand with basic American principles of fairness and due process.”

DeVos issued her policy May 6 after rescinding earlier guidelines from the Obama administration in 2017. Victims’ advocates say the 2017 rules forced colleges to confront sexual abuse after ignoring it for years. But DeVos has said the guidelines turned campus disciplinary panels into “kangaroo courts” that were too quick to punish accused students.

DeVos’ rules, which carry the weight of law, tell schools how to implement Title IX, the 1972 law barring discrimination based on sex in education.

Under her overhaul, the definition of sexual harassment is narrowed to “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive” that it denies a person access to a school’s education programs or activity.

The policy will now require colleges to investigate claims only if they’re reported to certain officials, and schools can be held accountable for mishandling complaints only if they acted with “deliberate indifference.” Opponents also took exception with a provision allowing students to question one another through representatives at live hearings.

DeVos on Wednesday said the rules require schools “to act in meaningful ways to support survivors of sexual misconduct without sacrificing important safeguards to protect free speech and provide all students with a transparent, reliable process.”

The case challenging the rules was led by attorneys general in Pennsylvania, New Jersey and California, with backing from a total of 17 states and the District of Columbia.

The California and Pennsylvania attorneys general didn’t immediately respond to requests for comment.

The challenge was supported by the American Council on Education, an association of university presidents, along with 24 other higher education organizations. In a June legal brief, the groups said the policy ordered a “sea change” for colleges but gave them less than three months to implement it.

“In the best of times, that deadline would be unreasonable. But in light of the extraordinary burdens that have been placed on American colleges and universities in the wake of the COVID-19 global pandemic, that August 14 implementation deadline is problematic in the extreme,” the groups wrote.

Campus Discrimination Due Process False Allegations Rape-Culture Hysteria Sexual Assault Sexual Harassment Title IX Victims Violence

UNC Wants SCOTUS to Review Ruling Mandating Release of Sexual Assault Sanctions

Post author By saveadmin
Post date August 12, 2020

Updated August 8, 2020

By Joe Fisher, WRAL reporter

CHAPEL HILL, N.C. — The University of North Carolina at Chapel Hill intends to ask the United States Supreme Court to review a 4-3 decision by the Supreme Court of North Carolina that ordered the school to release the names of students found responsible and sanctioned for sexual misconduct.

After a nearly four-year legal fight, UNC released a list of 15 names in response to a request for all sanctions issued for sexual misconduct since 2007.

The release of the records comes three months after the state Supreme Court sided with a coalition of North Carolina media organizations that sued the university after it denied a 2016 public records request for the information. The coalition includes Capitol Broadcasting Co., WRAL’s parent company, as well as UNC-Chapel Hill’s student newspaper, The Daily Tar Heel.

“We, along with many advocates for  survivors  of sexual assault and interpersonal violence, still believe the release of these records will inevitably lead to an increased risk of the identification of  survivors  and key witnesses and  could discourage others from participating in the Title IX process,” said Joel Curran, vice chancellor of University Communications.

“Universities should not be forced to release student records that could identify sexual assault  survivors,” Curran said.

Annie Clark, a former student who has spent seven years advocating for more transparency about sexual assaults on campus, says the release of the names is a step in the right direction.

“We have a lot of survivor advocates and survivors themselves who want these names released, who want to have that vindication,” Clark said. “But you also have a lot of folks who don’t want that, who feel like, if their perpetrator’s or alleged perpetrator’s name is released, that it puts them in danger.”

Clark was one of five women who filed a complaint with the U.S. Department of Education in 2013 accusing UNC-Chapel Hill of underreporting sexual assault cases for 2010 in an annual report to the federal government on campus crime. It also alleged that campus officials allowed a hostile environment for students reporting sexual assault.

“It is very surprising that, over the course of years, that there are only 15 people who have been found responsible that the university released,” Clark said. “What we know is that one in four or one in five women, depending on the statistics used, are sexually assaulted before they graduate, drop out or leave college in another way.”

Clark wants UNC-Chapel Hill and other universities to release even more information, including how many total assaults are reported, how many are investigated and how many result in sanctions.

“There is a lot further to go,” she said. “I think we need to look beyond this one story of releasing names and look more towards why are people still doing, why are people are still getting away with and where are those aggregate numbers and where are people falling through the cracks.”

On UNC-Chapel Hill’s website for its Equal Opportunity Compliance office, sexual assault victims are encouraged to report criminal activity to law enforcement; however, accusers can choose to pursue a case through a university process that’s been kept completely confidential.

As for its internal process, Curran said, “The University’s Title IX policy and process are mandated by the federal government and are separate and distinct from any criminal process.”

“Sanctions are tailored to the unique facts and circumstances of each report, and the University’s Equal Opportunity and Compliance Office investigators and hearing panelists consider a variety of factors when determining the appropriate sanction,” said Leslie Minton, associate director of media relations. “Those factors are listed in the procedures associated with the Policy on Prohibited Discrimination, Harassment and Related Misconduct. This is an educational process focused on maximizing equal access to educational programs and activities and the safety and well-being of our students and campus community.

WRAL News has a team of reporters gathering more information on the students named and intends to share more information.

Source: https://www.wral.com/unc-wants-scotus-to-review-ruling-mandating-release-of-sexual-assault-sanctions/19225371/

Believe the Victim Campus Title IX Trauma Informed Victim-Centered Investigations

PR: Campus Administrators Need to Restore Impartial Investigations, or Face a Surge in Costly Lawsuits

Post author By saveadmin
Post date August 11, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Campus Administrators Need to Restore Impartial Investigations, or Face a Surge in Costly Lawsuits

WASHINGTON / August 11, 2020 – SAVE has published an analysis that documents a dramatic increase in judicial decisions against universities involving biased investigations of sexual assault allegations. In 2014-2016, the average number of lawsuits alleging faulty campus investigations averaged three decisions per year. In 2020, that number is projected to reach 30 judicial decisions against colleges and universities, a 10-fold increase in the span of a few years.

Such investigations go by a variety of names: “trauma-informed,” “Start By Believing,” and “victim-centered.” These investigative approaches discount the presumption of innocence and begin with the assumption that the complainant is being fully truthful. As a result, exculpatory evidence is often discounted or ignored.

Five examples illustrate the due process deficiencies that judges considered in the university lawsuits:

In Neal v. Colorado State University-Pueblo, the university opened an investigation into a male student after a classmate saw a hickey on that student’s girlfriend’s neck during class. The girlfriend swore to the university the sex was consensual, but the university decided to “investigate” anyway. The university gave the male student less than 24-hour notice to the hearing and refused to give him a copy of the investigative report.
In Doe v. Regents of University of California, a female student accused a male student of sexual assault without providing any witnesses or evidence. Without any investigation, the university put the male student on interim suspension and then did not allow him access to the investigative report once one was created.
In Doe v. Purdue University, the university withheld the investigative report, which included a made-up “confession” by the accused student.
In Doe v. Brandeis University, the institution refused to interview the accused student’s witnesses, refused to inform him of what he was being investigated for, and refused to allow him to review the investigative report.
In Doe v. Syracuse University, the accused student alleged that the university trained its investigators that “perpetrators of sexual assault are supposedly rational actors who plan, practice, and become habitual rapists and sexual predators… [and that] inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma.”

On May 6, the U.S. Department of Education issued a new regulation that would require campus investigations to be impartial and free of bias. In response, the State of New York filed a lawsuit requesting a Preliminary Injunction against the Title IX regulation (1). SAVE then filed an Amicus Brief highlighting the fact that, “The Regulations require that any coordinator, investigator, decision-maker, or any person designated to facilitate an informal resolution process be free from conflict of interest or bias.” (2) The SAVE Brief urged the Court to reject the New York complaint.

This past Sunday, Judge John Koeltl issued a ruling denying the State of New York request (3). In the opinion, the judge favorably quoted a key provision from the new regulation:

During an investigation of a formal complaint, the school must “[p]rovide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond.” (page 12)

The new Title IX regulation is slated to take effect this coming Friday, August 14 (4). SAVE urges campus administrators to carefully review investigative policies and procedures to assure compliance with the new regulation.

The SAVE analysis, “University Administrators Need to Assure Impartial and Fair Investigations, or Face Legal Consequences,” is available online (5).

Links:

Campus Investigations Start By Believing Title IX Trauma Informed

University Administrators Need to Assure Impartial and Fair Investigations, or Face Legal Consequences

Post author By saveadmin
Post date August 10, 2020

August 10, 2020

The past decade has witnessed a veritable explosion in accused-student Title IX litigation, with over 180 judicial decisions rendered to date that are unfavorable to the university. These lawsuits have exposed universities to costly settlements (and a judgment, in one case)[1], not to mention the attorneys’ fees that likely exceed $100,000 per case[2].

One of the most frequently litigated issues in these lawsuits is whether the investigation into alleged sexual misconduct was biased against the accused student. These guilt-presuming investigations are known by a variety of names, such as “trauma-informed,”[3] “Start By Believing,” or “victim-centered.”

An impartial investigation is in the interest of both the accused and accusing student. Hence the Department of Education’s Title IX regulations, scheduled to take effect on August 14, require, among other things, fair and impartial investigations:[4]

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.” [key words in italics]

SAVE hosts an Interactive Spreadsheet that provides a detailed analysis of 138 lawsuits against universities in which the accused student prevailed.[5] Among the 138 cases, the Spreadsheet lists 69 judicial decisions for which the university’s investigation was biased against the accused student – listed in reverse chronological order in the Appendix.

Almost all of the cases come from the trial court level. Of interest, roughly half — 39 — of these opinions involved private universities. There has been a substantial increase in judicial decisions involving biased investigations over the years, suggesting courts’ growing wariness of university procedures:

2014: 3 cases
2015: 2 cases
2016: 5 cases
2017: 14 cases
2018: 15 cases
2019: 15 cases
2020 (six months): 15 cases

At the current pace, the number of lawsuits decided against universities is projected to reach 30 by the end of 2020.

Five of these cases illustrate the often egregious due process violations that the judges considered:

In Neal v. Colorado State Univ.-Pueblo, No. 16-CV-873-RM-CBS, 2017 WL 633045 (D. Colo. Feb. 16, 2017), the university opened an investigation into a male student after a classmate saw a hickey on that student’s girlfriend’s neck during class. The girlfriend swore to the university the sex was consensual, but the university decided to “investigate” anyway. The university gave the male student less than 24-hour notice to the hearing and refused to give him a copy of the investigative report.
In Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 238 Cal. Rptr. 3d 843 (2018), a female student accused a male student of sexual assault without providing any witnesses or evidence. Without any investigation, the university put the male student on interim suspension and then did not allow him access to the investigative report once one was created.
In Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019), the university withheld the investigative report, which included a made-up confession by the accused student.
In Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016), the university refused to interview the accused student’s witnesses, refused to inform him of what he was being investigated for, and refused to allow him to review the investigative report.
In Doe v. Syracuse Univ., 440 F. Supp. 3d 158, 159 (N.D.N.Y. 2020), the accused student alleged that the university trained its investigators that “perpetrators of sexual assault are supposedly rational actors who plan, practice, and become habitual rapists and sexual predators… [and that] inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma” (internal quotations and citations omitted).

Universities that do not currently conduct impartial and objective investigations should promptly revise their policies and training procedures, both in order to be in compliance with the new Title IX regulation and to avoid costly litigation. Most importantly, they should provide these protections because it is the right thing to do.

++++++++++++++++++++++++++++++++

Appendix

Listing of Judicial Decisions Against Universities Involving Biased Investigations, 2014 to Mid-2020

No.	Case Caption	Citation/Case Number	Date of Opinion	Judge	Court
1	John Doe v. Oberlin College	No. 19-3342	29-Jun-20	Kethledge, Raymond	U.S. Court of Appeals, Sixth Circuit
2	John Doe v. Purdue University, et al.	2020 WL 2839177	1-Jun-20	Springmann, Theresa	U.S. District Court, Northern Dist. Indiana
3	John Doe v. University of the Sciences	2020 WL 2786840	29-May-20	Sanchez, Juan R.	U.S. Court of Appeals, Third Circuit
4	Tariq Venegas v. Carleton College	Case number: 19-cv-01878	1-May-20	Davis, Michael	U.S. District Court, Minnesota
5	John Doe v. Colgate University	2020 WL 2079439	30-Apr-20	Scullin, Frederick Jr.	U.S. District Court, Northern Dist. New York
6	John Doe v. Syracuse University	2020 WL 2079513	30-Apr-20	McAvoy, Thomas	U.S. District Court, Northern Dist. New York
7	J. Lee v. University of New Mexico, et al.	2020 WL 1515381	30-Mar-20	Browning, James	U.S. District Court, New Mexico
8	Hannah Rullo v. University of Pittsburgh	2020 WL 1472422	26-Mar-20	Kelly, Maureen	U.S. District Court, Western Dist. Pennsylvania
9	Jacob Doe v. Virginia Polytechnic Institute and State University	2020 WL 1309461	19-Mar-20	Dillon, Elizabeth	U.S. District Court, Western Dist. Virginia
10	John Doe v. Rollins College	Case number: 6:18-cv-01069	9-Mar-20	Dalton, Roy	U.S. District Court, Middle Dist. Florida
11	Kemari Averett v. Shirley Ann Hardy et al.	2020 WL 1033543	3-Mar-20	Hale, David	U.S. District Court, Western Dist. Kentucky
12	Feibleman v. Trustees of Columbia University in City of New York	2020 WL 882429	24-Feb-20	Caproni, Valerie	U.S. District Court, Southern Dist. New York
13	John Doe v. Syracuse University, et al.	2020 WL 871250	21-Feb-20	Sannes, Brenda K.	U.S. District Court, Northern Dist. New York
14	John Doe v. University of Maine System, et al.	2020 WL 981702	20-Feb-20	Torresen, Nancy	U.S. District Court, Maine
15	John Doe v. University of South Alabama, et al.	2020 WL 759895	14-Feb-20	Granade, Callie	U.S. District Court, Southern Dist. Alabama
16	Unknown Party v. Arizona Board of Regents	2019 WL 7282027	27-Dec-19	Lanza, Dominic W.	U.S. District Court, Arizona
17	John Doe v. Tracy Haas, et al.	427 F.Supp.3d 336	9-Dec-19	Hurley, Denis	U.S. District Court, Eastern Dist. New York
18	John Harnois v. UMass-Dartmouth, et al. (pro se)	2019 WL 5551743	28-Oct-19	Stearns, Richard	U.S. District Court, Massachusetts
19	John Doe v. Quinnipiac University, et al.	404 F.Supp.3d 643	10-Jul-19	Arterton, Janet Bond	U.S. District Court, Connecticut
20	John Doe v. Purdue University, et al.	928 F.3d 652	28-Jun-19	Barrett, Amy Coney	U.S. Court of Appeals, Seventh Circuit
21	John Doe v. California Institute of Technology	Case Number: BS171416	20-Jun-19	Strobel, Mary	Los Angeles (CA) Superior Court
22	John Doe v. Rhodes College	Case Number: 2:19-cv-02336	14-Jun-19	Fowlkes, John Jr.	U.S. District Court, Tennessee, Western Dist.
23	John Doe v. Northern Michigan University, et al.	2019 WL 2269721	28-May-19	Quist, Gordon	U.S. District Court, Michigan, Western Dist.
24	John Doe v. Syracuse University	2019 WL 2021026	8-May-19	Hurd, David	U.S. District Court, New York, Northern Dist.
25	John Doe v. Westmont College, et al.	34 Cal.App.5th 622	23-Apr-19	Tangeman, Martin	California Appeals Court, Second Dist., Div. Six
26	Jack Montague v. Yale University	Case Number: 3:16-cv-00885	29-Mar-19	Covello, Albert	U.S. District Court, Connecticut
27	William Norris v. University of Colorado	362 F.Supp.3d 1001	21-Feb-19	Babcock, Lewis	U.S. District Court, Colorado
28	David Jia v. University of Miami, et al.	Case Number: 1:17-cv-20018	12-Feb-19	Gayles, Darrin	U.S. District Court, Florida, Southern Dist.
29	Jacob Oliver v. University of Texas-Southwestern Medical School	2019 WL 536376	11-Feb-19	Boyle, Jane	U.S. District Court, Texas, Northern Dist.
30	John Doe v. Rollins College	352 F.Supp.3d 1205	16-Jan-19	Dalton, Roy	U.S. District Court, Middle District, Florida
31	John Doe v. University of South Florida St Petersburg	Case Number: 17-0028AP-88B	21-Dec-18	Day, Jack	Circuit Court, Sixth Judicial Circuit, Florida
32	Erik Powell v. Montana State University, et al.	2018 WL 6728061	21-Dec-18	Haddon, Sam	U.S. District Court, Montana
33	John Doe v. University of Southern Mississippi, et al.	Case Number: 2:18-cv-00153	26-Sep-18	Starrett, Keith	U.S. District Court, Mississippi, Southern Dist.
34	John Doe v. Brown University	327 F.Supp.3d 397	27-Aug-18	McConnell, John	U.S. District Court, Rhode Island
35	John Doe v. Ohio State University	323 F.Supp.3d 962	20-Aug-18	Smith, George	U.S. District Court, Southern Dist., Ohio
36	John Doe v. Johnson & Wales University	Case Number 1:18-cv-00106	24-May-18	McConnell, John	U.S. District Court, Rhode Island
37	Jane Roe v. Javaune Adams-Gaston, et al.	2018 WL 5306768	17-Apr-18	Sargus, Edmund Jr.	U.S. District Court, Southern Dist, Ohio
38	John Doe v. Regents of the University of California	Case Number: BS172217	5-Apr-18	Chalfant, James	Los Angeles (CA) Superior Court
39	John Doe v. University of Oregon, et al.	2018 WL 1474531	26-Mar-18	Aiken, Ann	U.S. District Court, Oregon
40	John Doe v. Marymount University, et al.	297 F.Supp.3d 573	14-Mar-18	Ellis, T.S. III	U.S. District Court, Eastern Dist., Virginia
41	Jason Schaumleffel v. Muskingum University, et al.	2018 WL 1173043	6-Mar-18	Smith, George	U.S. District Court, Southern District, Ohio
42	Tyler Gischel v. University of Cincinnati, et al.	302 F.Supp.3d 961	5-Feb-18	Dlott, Susan	U.S. District Court, Southern Dist., Ohio
43	John Doe v. Miami University	882 F.3d 579	2-Feb-18	Moore, Karen	U.S. Court of Appeals, Sixth Circuit
44	John Doe v. Rider University	2018 WL 466225	17-Jan-18	Martinotti, Brian	U.S. District Court, New Jersey
45	John Doe v. The Pennsylvania State University	2018 WL 317934	8-Jan-18	Brann, Matthew	U.S. District Court, Middle Dist. Pennsylvania
46	John Doe v. Regents of the University of California	Case Number: 17CV03053	22-Dec-17	Geck, Donna	Santa Barbara County (CA) Superior Court
47	Kathak Saravanan v. Drexel University	2017 WL 5659821	24-Nov-17	Kearney, Mark	U.S. District Court, Eastern Dist., Pennsylvania
48	Matthew Rolph v. Hobart and William Smith Colleges	271 F.Supp.3d 386	20-Sep-17	Wolford, Elizabeth	U.S. District Court, Western Dist., New York
49	John Doe v. The Trustees of the University of Pennsylvania	270 F.Supp.3d 799	13-Sep-17	Padova, John	U.S. District Court, Eastern Dist., Pennsylvania
50	John Doe v. Case Western Reserve University, et al.	2017 WL 3840418	1-Sep-17	Nugent, Donald	U.S. District Court, Northern Dist., Ohio
51	Frank Gulyas v. Appalachian State, et al.	2017 WL 3710083	28-Aug-17	Voorhees, Richard	U.S. District Court, West. District, North Carolina
52	John Nokes v. Miami University	2017 WL 3674910	25-Aug-17	Barrett, Michael	U.S. District Court, Southern Dist., Ohio
53	Cameron Jackson v. Liberty University, et al.	2017 WL 3326972	3-Aug-17	Moon, Norman	U.S. District Court, Western Dist. Virginia
54	Nicholas Mancini v. Rollins College	2017 WL 3088102	20-Jul-17	Dalton, Roy	U.S. District Court, Middle Dist. Florda
55	In the Matter of John Doe v. Skidmore College	59 N.Y.S.3d 509	13-Jul-17	Garry, Elizabeth	Appellate Division (NY) Third Department
56	Koh Tsuruta v. Augustana University	2017 WL 11318533	16-Jun-17	Schreier, Karen	U.S. District Court, South Dakota
57	John Doe v. University of Notre Dame	2017 WL 1836939	8-May-17	Simon, Philip	U.S. District Court, Northern Dist. Indiana
58	Grant Neal v. Colorado State University-Pueblo	2017 WL 633045	16-Feb-17	Schaffer, Craig	U.S. District Court, Colorado
59	John Doe v. Western New England University	228 F.Supp.3d 154	11-Jan-17	Ponsor, Michael	U.S. District Court, Massachusetts
60	John Doe v. Brown University	210 F.Supp.3d 310	28-Sep-16	Smith, William	U.S. District Court, Rhode Island
61	John Doe v. Columbia University	831 F.3d 46	29-Jul-16	Laval, Pierre	U.S. Court of Appeals, Second Circuit
62	John Doe v. Weill Cornell Medical College of Cornell University	Case Number: 16-cv-3531	20-May-16	Pauley, William	U.S. District Court, Southern Dist. New York
63	John Doe v. University of Southern California	246 Cal.App.4th 221	5-Apr-16	Collins, Aubrey	CA Court of Appeals Second District, Division Four
64	John Doe v. Brown University	166 F.Supp.3d 177	22-Feb-16	Smith, William	U.S. District Court, Rhode Island
65	John Doe v. Washington and Lee University	2015 WL 4647996	5-Aug-15	Moon, Norman	U.S. District Court, Western Dist. Virginia
66	Drew Sterrett v. Heather Cowan, et al.	85 F.Supp.3d 916	4-Feb-15	Hood, Denise	U.S. District Court, Eastern Dist. Michigan
67	Abrar Faiaz v. Colgate University	64 F.Supp.3d 336	24-Nov-14	Baxter, Andrew	U.S. District Court, Northern Dist. New York
68	Benjamin King v. DePauw University	2014 WL 4197507	22-Aug-14	Lawrence, William	U.S. District Court, Southern Dist. Indiana
69	Dezmine Wells v. Xavier University	7 F.Supp.3d 746	12-Mar-14	Spiegel, Arthur	U.S. District Court, Southern Dist. Ohio

[1] https://www.insidehighered.com/news/2019/09/25/jury-sides-former-boston-college-student-accused-sexual-assault

[2] https://www.insidehighered.com/news/2019/10/03/students-look-federal-courts-challenge-title-ix-proceedings

[3] https://www.mindingthecampus.org/2019/09/20/fake-claims-of-rape-due-to-trauma-under-scrutiny/

[4] 34 CFR §106.45(b)(1)

[5] http://www.saveservices.org/sexual-assault/complaints-and-lawsuits/lawsuit-analysis/

Campus Civil Rights Department of Education Department of Justice Due Process False Allegations Sexual Assault Title IX

Can Lockdown Learning Liberate Male Students?

Post author By saveadmin
Post date August 5, 2020

The COVID-19 cloud hanging over North American universities may contain a ray of sunlight. It may ease what is called “the boy problem” in education—a significantly reduced number of male students and of male achievement in colleges. As bleak as isolated learning may seem to some, it may be more male friendly than many campuses.

Critics denounce off-campus learning as a lesser service being offered at full price. Certainly, the college experience can be enhanced by direct interaction with professors, other students, and organizations. But a radical left ideology dominates the university system, and it is sustained by an army of administrators who implement policies of social control, from speech codes to sexual mores. This often leads to stifled opinions, preferential treatment of some classes of student, accusations of misconduct, speech police, campus hearings with no due process, and punishment with no appeal. There can be advantages to a stripped-down version of learning without the social justice and social control that turns the benefits of interaction into cruel dangers.

An October 2018 article in the New York Times, “Think Professors Are Liberal? Try School Administrators,” complained,

The ideological bent of those overseeing collegiate life is having the biggest impact on campus culture…I received a disconcerting email this year from a senior staff member in the Office of Diversity and Campus Engagement at Sarah Lawrence College, where I teach. The email was soliciting ideas…for a conference, open to all of us, titled “Our Liberation Summit.” The conference would touch on such progressive topics as liberation spaces on campus, Black Lives Matter and justice for women as well as for lesbian, gay, bisexual, transgender, queer, intersex, asexual and allied people.

The conservative professor objected to the political polarization of this campus conference and the power of the administrator. Those who reject any tax-funded conference can sympathize, not because of the politics involved but because of the taxes. The fact that “those overseeing collegiate life” push their own orthodoxy is insult added to injury.

The silver lining of at-home learning: students who attend class in pajamas have little occasion to encounter social justice warrior (SJW) bureaucrats. In on-campus life, they seem to be everywhere.

In 2017, Todd J. Zywicki and Christopher Koopman of George Mason University published a study entitled “The Changing of the Guard: The Political Economy of Administrative Bloat in American Higher Education.” They found,

Universities have increased spending, but very little of that increased spending has been related to classroom instruction; rather, it is being directed toward non-classroom costs. As a result, there has been a growth in academic bureaucracies, as universities focus on hiring employees to manage or administer people, programs, and regulations. Between 2001 and 2011, these sorts of hires have increased 50% faster than the number of classroom instructors. This trend…has become ubiquitous in…American higher education. (p.2). [Data draws on WSJ article “Deans List: Hiring Spree Fattens College Bureaucracy—And Tuition.”]

Focusing on a narrow field of administrators offers a glimpse of the harm these bureaucrats inflict. Consider the impact of one branch on one student population: Title IX on male students, who have been called “the new minority” at colleges. This is particularly true of males from low-income families.

Jim Shelley, the manager of the Men’s Resource Center at Lakeland Community College in Ohio, explains one reason why; campuses feel hostile to them. They feel that college is geared toward protecting and promoting females.

“Not only are there not programs like ours [on other campuses] that are supportive of male students, but at most college campuses the attitude is that men are the problem.…I’ve had male students tell me that their first week in college they were made to feel like potential rapists.”

A great deal of attention in the last decade has been directed to “the boy problem” in education. A few examples include:

Higher Ed Live: Missing Men: Addressing the College Gender Gap
Stanford Professor Postings: Where the Guys Are: Males in Higher Education
Inside Higher Education: The Other Gender Gap
College Stats: Why Men Are Falling Behind in Higher Ed

Logically, administrators seem to be ideally placed to ensure that campuses are welcoming to and not hostile environments for males. In reality, they do the opposite. Just one example are sex specific scholarships that overwhelmingly favor female applicants—often prohibiting male ones—even though Title IX’s implementing regulation, 34 CFR 106, prohibits federally tax-supported scholarships that, “On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate.”

A broader overview reveals how badly administrators may be failing or actively harming male students. The overview involves taking universities at their word and examining the makeup of staff, such as Title IX administrators. A popular campus idea is that only another member of a specific gender or race understands the experience of that gender or race; only blacks understand the black experience, etc.

This argument is used to push for a so-called diversity of hiring that gives female students access to female counselors and mentors, for example. Again, this approach leads to preferential hiring based on gender or race—that is, quotas—which are anathema to any system of merit. Nevertheless, socially engineered quotas are normal at universities. If applied even handedly, this should result in a population of administrators that roughly mirrors the population of students. This seems especially important for Title IX administrators who are supposed to ensure non-discrimination based on sex.

What is the gender mix of the student populations? It varies from campus to campus, of course, but an October 2019 article entitled “The Degrees of Separation Between the Genders in College “ in the Washington Post renders a fair sense of it. The article states, “Fifty years ago, 58 percent of U.S. college students were men. Today, 56 percent are women, Education Department estimates show.” This is a commonly cited statistic.

Capture One would expect Title IX administrators, therefore, to be half-female and half-male, or something roughly close to this ratio. A review of the websites of the largest public university in each state, however, reveals a huge gender gap in Title iX staff. In the 51 universities, there were 168 female staffers to 48 male, or 3.5 times more females.

If this gap resulted from free market factors, then it would be an interesting and harmless anomaly that probably reflects how employment preferences differ between the genders. No solution would be required because no problem would exist. But universities are socially engineered institutions. They receive Title IX funding and other federal benefits on the specific condition of non-discrimination. If blacks constituted 44 percent of a student body while 3.5 times more whites than blacks occupied highly paid positions of authority, there would be a cry of “racism!” No one cries out for male students.

Administrators will not give up their positions easily, simply because they are highly paid and bring status. According to the 2012-13 “Administrators in Higher Education Salary Survey” by the College and University Professional Association for Human Resources, the average annual salary of a “Chief Executive Officer of a System” in a two-year institution was $291,132; in a four-year institution, $370,470; in a doctoral context, $431,575. By contrast, a 2015-16 report from the American Association of University Professors (AAUP) found the average salary of a tenured professor at a public college was $78,762. Again, this is not a hard comparison, but it renders a good general sense of the scope of the problem and why the administrators will not easily cede their authority.

Ultimately, the solution is to privatize colleges and run them as businesses in which owners make decisions, usually according to market feedback. In the absence of this and the presence of tax-funding, however, it is blatantly wrong to privilege one class of human being and discriminate against another class in employment and opportunity. It is especially hypocritical to do so within a program that allegedly champions non-discrimination.

If the lockdown of universities loosens the death grip that anti-male administrators have on college campuses, then at least one benefit will come from it. If SJW social justice bureaucrats are shown to be irrelevant, perhaps cash-strapped universities will consider a return to academia and cease to be petri dishes of social experimentation.

https://libertarianinstitute.org/articles/can-lockdown-learning-liberate-male-students/

Campus Department of Education Title IX Trauma Informed

Why TIX and Trauma-Informed Investigations Don’t Mix

Post author By saveadmin
Post date August 5, 2020

As Universities put finishing touches on their Title IX policies, SAVE is advising university counsel to assure Title IX investigations do not rely on methods that are victim-centered, where investigators are encouraged to “Start By Believing”.

When investigators start by believing the accusing party, in effect, they are disbelieving the responding party. This leaves no room for
Presumption of Innocence in campus adjudications.

These trauma-informed methods are inadvisable for four reasons:

• The Final Rule requires all Title IX administrators are trained on…how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias…”

• Recent judicial decisions rule against trauma-informed investigations. In a decision against Syracuse University, a federal judge noted: “Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account. . .becomes evidence that her testimony is truthful”.

• A lack of scientific basis noted in several peer-reviewed articles surrounds trauma-informed investigations. Journalist Emily Yoffe has described these methods as “junk science”.

• Leading Title IX Groups, such as ATIXA, FACE, and SAVE have been critical of these types of investigations, noting lack of fairness and due process for all parties. In addition, 158 professors and legal experts endorsed an Open Letter critical of the use of trauma-informed methods.

SAVE notes “trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable.

SAVE encourages you to contact the provost at your alma mater or local college and encourage their oversight to assure the university does not include trauma-informed investigations for their TIX proceedings.

Campus Investigations Sexual Assault Sexual Harassment Title IX Trauma Informed

PR: Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

Post author By saveadmin
Post date August 3, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

WASHINGTON / August 3, 2020 – With less than two weeks remaining before the effective date of the new Title IX regulation, SAVE is advising university counsel to review institutional polices to assure Title IX investigations do not rely on flawed “trauma-informed” methods. The use of such investigative approaches, sometimes referred to as “victim-centered” or “Start By Believing,” is inadvisable for four reasons:

Regulatory Requirements: “Trauma-informed” means the investigator presumes that the complainant has experienced significant physical and psychological trauma, and interprets the complainant’s statements through that lens. This presumption is inconsistent with the text of the new Title IX regulation, which reads:

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.” [key words in italics] (1)

Case Law: In a growing number of lawsuits, judges have issued rulings against universities because of their use of trauma-informed investigations. In a recent judicial decision against Syracuse University, the federal judge noted: “Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account . . . becomes evidence that her testimony is truthful” (2).

Brooklyn College professor KC Johnson has summarized a number of these cases (3): “In a lawsuit against Penn, the court cited the university’s trauma-informed training as a key reason why the complaint survived a motion to dismiss. During the Brown university bench trial, the decisive vote in the adjudication panel testified that she ignored exculpatory text messages because of the training she had received. Ole Miss’ trauma-informed training suggested that an accuser lying could be seen as a sign of the accused student’s guilt. And at Johnson & Wales, the university was so disinclined to make public the contents of its training that it refused a request by the accused student’s lawyer to see it before the hearing.”

Lack of a Scientific Basis: Several peer-reviewed articles have discredited the scientific basis of trauma-informed investigations: Deborah Davis and Elizabeth Loftus: “Title IX and “Trauma-Focused” Investigations: The Good, the Bad, and the Ugly” (4); Sonja Brubacher and Martine Powell: “Best-Practice Interviewing Spans Many Contexts” (5); and Christian Meissner and Adrienne Lyles: “The summary of Training Investigators in Evidence-Based Approaches to Interviewing.” (6)

Journalist Emily Yaffe has described trauma-informed methods as “junk science.” (7) A compilation of other scientific critiques of trauma-informed is available online (8).

Criticized by Leading Title IX Groups: Several organizations have issued reports and statements that are critical of trauma-informed investigations: ATIXA: “ Trauma-Informed Training and the Neurobiology of Trauma;” (9) FACE: “Trauma-Informed Theories Disguised as Evidence”(10) SAVE: “Believe the Victim: The Transformation of Justice;” (11) In addition, 158 professors and legal experts endorsed an Open Letter that is critical of the use of trauma-informed methods (12).

A UCLA working group appointed by former California governor Jerry Brown concluded, “The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent.” (13)

“Trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable.

Links:

Campus Civil Rights Department of Education Due Process Fair Campus Act Investigations Title IX

To cripple the abusive campus ‘sex bureaucracy,’ rein in the Title IX coordinators

Post author By saveadmin
Post date August 2, 2020

If you want to entrench a government policy, make sure someone’s job depends on enforcing it. Even if that person isn’t a true believer in the program initially, she will be by the time her first paycheck arrives – and increasingly after that. That’s certainly the case with the education system’s Title IX coordinators, who are charged with overseeing schools’ compliance with federal sex discrimination statutes and questionable regulatory dictates.

What do Title IX coordinators do? Their core job duty, at least in theory, is to monitor their institution’s compliance with Title IX of the Education Amendments of 1972, which helps ensure that institutions receiving federal money do not tolerate sexual harassment that effectively bars the victim’s access to educational opportunity.

However, regulators’ zeal for stamping out sexual harassment has warped enforcement in ways that violate students’ free speech and due process rights. That’s all thanks to the Office of Civil Rights (OCR) within the Department of Education, which under the Obama administration issued widely criticized guidance documents elaborating on – and often unreasonably expanding the interpretation of – what counts as harassment. These documents imposed new duties on regulated schools based on a serious misreading of the law, and were instituted without following the appropriate procedures for public notice and comment.

Fortunately, the Trump administration has withdrawn some of the worst guidance documents and issued binding regulations that should discourage schools from curtailing students’ fundamental rights. However, there is at least one more problematic Obama-era Title IX guidance remaining on the books. It describes, at length, the procedures that federal funding recipients must follow in employing Title IX coordinators.

The term “coordinator” appears nowhere in Title IX itself. The requirement originates from a 1975 regulation (34 C.F.R. 106.8) that told funding recipients they had to designate a responsible employee to handle Title IX compliance. The requirement prompted almost no public comment at the time, probably because it was seen as the kind of modest measure that agencies routinely take to carry out a statute, such as telling recipients what color paper they must use in correspondence with an agency.

Yet onto this slender bureaucratic reed, the Obama administration engrafted a complex regulatory regime that essentially created privately administered “sex bureaucracies” within every funding recipient’s management.

Under pressure from this guidance, many colleges and universities expanded their Title IX offices. Harvard University has by my count 58 compliance staff members. Yale University has 22. Even tiny liberal arts colleges have significant Title IX offices: Middlebury has one main Title IX coordinator and six deputies; Amherst has one coordinator and six deputies; Haverford has one and eight deputies.

As these offices have grown, staff duties have expanded to include work going beyond ensuring compliance with the law and instead promoting the “spirit” of Title IX. One Swarthmore coordinator noted to the media that these “jobs are really not just about compliance anymore, but also about campus climate.”

What are these offices doing to promote Title IX’s spirit? As Jeannie Suk and Jacob Gersen discuss in a 2016 California Law Review article, “The Sex Bureaucracy,” many have gone beyond preventing unlawful sex discrimination and instead have expanded into lecturing students on what used to be seen as highly personal decisions about pursuing “healthy” or “safe” romantic and sexual relationships. Most of us learned foundational relationship skills such as “Always use ‘I’ statements” and “Don’t interrupt your partner” from partners, friends, clergy, or private therapists. Yet Title IX coordinators at Swarthmore and the University of Illinois have taken it upon themselves to propound such advice to students

“Is bureaucracy the antonym of desire?” Suk and Gersen ask. Certainly many of us would think so. Are bureaucrats hired to enforce a nondiscrimination statute really well-equipped to serve also as essentially relationship therapists? Much of their advice may be noncontroversial, but some may be less so, especially to students who hold traditional or religious values. Is it infantilizing to young adults to treat them as needing this kind of hectoring? Because of the pandemic-related economic downturn, many universities are in a particularly tight financial situation right now. Wouldn’t it make sense for regulators to give them some more flexibility in this area?

The Trump administration has made a priority of restoring the rule of law and stopping agency abuse of guidance documents: an executive order lays out procedures for transparency in issuance of guidance documents and restricts executive agencies’ unlawful issuance of guidance documents, and Associate Attorney General Rachel Brand issued a memo prohibiting Department of Justice components from issuing guidance documents that effectively bind the public.

The Trump administration should follow through on its commitment to pull back overreaching guidance and repeal this problematic document, in order to rein in the Title IX coordinators and their abusive sex bureaucracy.

Alison Somin is a legal fellow at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow her on Twitter @AlisonSomin.

Accountability Campus Civil Rights Department of Education Discrimination Due Process False Allegations Investigations Office for Civil Rights Press Release Sex Education Sexual Assault Sexual Harassment Title IX Training Victims Violence

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

Post author By saveadmin
Post date July 28, 2020

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

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

WASHINGTON / July 28, 2020 – SAVE recently released a study that shows black male students face a type of “double jeopardy” by virtue of being male and black. (1) Analyses show although black male students are far outnumbered on college campuses, they are four times more likely than white students to file lawsuits alleging their rights were violated in Title IX proceedings (2), and at one university OCR investigated for racial discrimination, black male students were accused of 50% of the sexual violence reported to the university yet they comprised only 4.2% of the student population. (3)

In 2015, Harvard Law Professor Janet Halley raised an alarm to the U.S. Senate HELP committee that, “the rate of complaints and sanctions against male students of color is unreasonably high.” (4) She advised school administrators to, “not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.” (5)

Her powerful words were ignored. Over the past 5 years numerous black males have been caught up in campus Title IX proceedings. Their lawsuits often claim a lack of due process in the procedures.

Grant Neal, a black student athlete, was suspended by Colorado State University – Pueblo for a rape his white partner denied ever happened. (6) Two black males students accused of sexually assaulting a fellow student recently settled a lawsuit against University of Findlay for racial, gender and ethnic discrimination. (7) Nikki Yovino was sentenced to a year in prison for making false rape accusations against two black Sacred Heart University football players whose lives were ruined by her accusations. (8) These are just a few examples.

Wheaton College in suburban Chicago, a major stop along the Underground Railroad, recently dismissed Chaplain Tim Blackmon, its first nonwhite chaplain in its 155-year history. Blackmon claims Wheaton’s Title IX office failed to investigate a previous Title IX complaint against him in a “clear misuse of the Title IX investigative process,” and he was “completely blind-sided by this Title IX investigation.” Blackmon’s attorney believes the professor’s race heavily factored into his firing, and that Wheaton was looking for an excuse to sever its relationship with its first African American chaplain and return to being a predominantly white educational institution. (9)

The impact to black male students and faculty could be even greater than any data or media reports imply since only those who can afford a costly litigation file lawsuits and make the news. More data is needed, but anecdotally black males are disproportionately harmed in campus Title IX proceedings.

SAVE recently spoke with Republican and Democrat offices in the House and Senate regarding this issue. Virtually all staffers agreed members of Congress are concerned about harm to black students and supportive of ways to offer protections to all students, including those of color.

The new Title IX regulation offers necessary due process protections that black students need. By complying with the regulation, college administrators will protect the rights of all students and address the serious problem that black men are accused and punished at unreasonably high rates. At a time when activists on college campuses are clamoring that Black Lives Matter, college administrators should assure they are doing everything they can to help their black students.

Citations:

SAVE is leading the policy movement for fairness and due process on campus: http://www.saveservices.org/

Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

Supreme Court Asked to Review Title IX ‘Circuit Split’

Post author By saveadmin
Post date July 24, 2020

The petition to the Supreme Court, made by Emily Kollaritsch and other women who say they were raped by the same male student while attending Michigan State, asks the justices to solve a “circuit split” between appellate courts across the country. Several courts disagree on how colleges should be held liable when sexual harassment complainants experience further harm after filing complaints. The petition calls on the justices to decide whether colleges can be held responsible for failing to address students’ “vulnerability” to sexual misconduct, or if preventable sexual misconduct must actually occur for colleges to be found in violation of Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination at federally funded institutions.

The case is centered on Kollaritsch and argues that Michigan State failed to protect her from being further harassed by a male student after the university found him responsible for sexually harassing her in 2011. The university issued a no-contact order and Kollaritsch said the male student broke it, but Michigan State could not prove he had. Kollaritsch also said she suffered panic attacks as a result of seeing the male student on campus, which she said indicated that Michigan State was “deliberately indifferent” to her sexual harassment. She said she suffered further harm by the male students’ presence on campus.

The 2019 opinion issued in the United States Sixth Circuit Court of Appeals said Michigan State could not be held liable because Kollaritsch could only prove she experienced mental health challenges from seeing the male student and not “further actionable sexual harassment” by him. The case was sent back to the district court for dismissal.

The Sixth Circuit opinion deepened a split in how different appellate courts interpret a 1999 Supreme Court case that found colleges can be held liable for “deliberate indifference” to sexual misconduct on campus under Title IX. Some circuit courts maintain that if a victimized student is merely vulnerable to harassment, even if it does not actually occur, then the institution is failing to provide an equal educational environment and could be held liable. The Eighth and Sixth Circuits hold that alleged victims must “prove additional, post-notice sexual harassment in order to state a claim for damages under Title IX,” according to Kollaritsch’s petition.

The petition was filed on July 2. On July 23, the court approved an extension requested by Michigan State to move the deadline for when the university’s lawyers must file a response. Michigan State will respond to the petition by Sept. 9, the case’s docket says.

Source: https://www.insidehighered.com/quicktakes/2020/07/24/supreme-court-asked-review-title-ix-%E2%80%98circuit-split%E2%80%99