Category: Campus

The Nomination of Catherine Lhamon: An Oxymoronic Injustice

SAVE, a non-profit, non-partisan organization, is a long-standing national leader in the area of campus fairness and civil rights. SAVE supports the interests and rights of both complainants and the accused.

SAVE was surprised by recent news about the nomination of Catherine Lhamon to become the Assistant Secretary for Civil Rights at the Department of Education’s Office for Civil Rights. We believe this is a serious mistake. It would be an oxymoronic injustice for a person with Lhamon’s long-standing record of determined opposition to “civil rights” to be confirmed to head up a federal “Office for Civil Rights.”

As a result of Lhamon’s aggressive enforcement of the flawed 2011 Dear Colleague Letter and the wrongful campus determinations that followed, numerous appellate court decisions have been handed down upholding due process protections for the accused – see SAVE’s recent Special Report, “Appellate Court Decisions for Allegations of Campus Due Process Violations, 2013-2020.”

More recently, numerous statements in support of campus due process have been issued. The statements by lawmakers and leading newspapers have been issued from approximately equal numbers of liberal and conservative sources – see listing below.

SAVE urges senators to oppose the nomination of Catherine Lhamon to the Office for Civil Rights.

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RECENT STATEMENTS MADE IN SUPPORT OF CAMPUS DUE PROCESS

Lawmakers:

1. Michael Bloomberg: Bring Better Justice to U.S. Universities
2. Sen. Richard Burr and Rep. Virginia Foxx: Letter to Department of Education Miguel Cardona
3. Virginia Lt. Gov. Justin Fairfax: Statement of April 7

Newspaper Editorial Boards:

1. Detroit News: Keep Title IX sex assault rules constitutional
2. Los Angeles Times: Betsy DeVos’s campus sex-assault rules need a tweak, not an overhaul
3. Washington Post: Biden has a chance to restore balance to  the rules on campus sexual assault

Organizations:

1. SAVE:
   • 115 Lawmakers Call for Return to Failed Campus Policy
   • Vast Majority of NY Times Readers Support Campus Due Process
2. Eugene/Springfield, Oregon Chapter of the NAACP
3. National Association of Scholars:
   • Rolling Back Title IX Due Process Protections is Wrong
   • Biden’s ‘Comprehensive Review’ of Title IX: A Stealth Attempt to Gut Due Process
4. Independent Women’s Forum: IWF and Independent Women’s Law Center Urge Biden Administration To Maintain Due Process Protections
5. FIRE: More than 100 members of Congress to new Education Secretary: Abandon Title IX rules.

Individuals:

1. David Golub: How Will Title IX Policies Affect Autistic Students?
2. Raul Jauregui: Removing or Weakening the Presumption of Innocence in Title IX Proceedings Would Institutionalize ‘Cancel Culture’
3. Wendy McElroy: Due Process on Campus Keeps Justice on the Streets
4. Andrew Miltenberg and Kristen Mohr: Princeton must consider due process in sexual misconduct policies
5. Natanya DeWeese: Guilty Until Proven Innocent: The Devastating Impact of the Pre-2020 Title IX Regulations on College Students Accused of Title IX Violations.
6. Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses
7. Edward Bartlett and Linda Chavez: The Future of Title IX Implementation (podcast)
8. Buddy Ullman: Biden’s Enigmatic Executive Order on Sex Discrimination
9. Jennifer Braceras: Attempts To Roll Back Due Process On Campus Hurt Students (radio interview)
10. James Baresel: Biden, Title IX, and the Dangers Behind “Vague Positives”
11. KC Johnson: On Title IX, Dems Move to Restore Obama-Era Unfairness
12. Andrew Sullivan: Emily Yoffe On Due Process and Campus Rape
13. Just the News: Biden’s plans for campus sexual misconduct regulations leave lawyers puzzled
14. Justin Dillon and Candice Jackson: Why Does Joe Biden Hate Due Process?
15. Paul Falanga: Title IX: A Professor’s Premonition Becomes a Disastrous Reality
16. Jacob Sullum: Biden Threatens to Revive Kangaroo Courts in College Sexual Assault Cases
17. Cynthia Ward: New Title IX regulations restored fair process — why try to overturn them?
18. James Baresel: Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems
19. Alison Somin: Biden executive order will lead to due process deficits on campus
20. Daily Wire: Schow On Fox: Everyone Loses When Due Process Is Rolled Back
21. Teresa Manning: Biden Title IX bid to ‘believe all women’ will meet its match on campuses
22. David Harsanyi: Biden Prepares to Strip College Students of Due-Process Rights
23. Campus Reform: Biden signs executive order in move toward revoking rule aimed at preserving due process
24. Jordan Davidson: Biden Wars Against Biological Sex And Due Process With Two New Executive Orders
25. Washington Examiner: A conversation with Brooklyn College professor KC Johnson

How Will Title IX Policies Affect Autistic Students?

By David Golub

May 9, 2021

Dating and relationships can be a challenging aspect for life for many people, but this is especially true for those who are on the autism spectrum.  In addition to the uncertainties that all people face, autistic individuals must confront certain additional questions: Will anyone want to date an unusual person like myself?  How will the physical aspects of a romantic relationship interplay with my sensory integration issues, and will my partner be understanding of any special needs that I may have?  Will she still love me when she learns that I’m autistic?

When the Department of Education’s 2011 “Dear Colleague” letter interpreted Title IX to require that schools investigate and adjudicate allegations of sexual assault, many expressed concern that innocent men had been placed at greater risk of being punished for crimes that they did not commit.  For those of us concerned with issues relating to autism, this begs the question of whether autistic students are disproportionately affected.  While no research has yet been done on this question, there is nonetheless good reason to believe that autistic students are at greater risk than their neurotypical counterparts.

There is one case documented in the press where an autistic student was punished inappropriately.[1]  In 2015, Brian Ferguson, then a student at Navarro College in Texas, saw a woman whom he mistakenly believed to be his friend, even though she was in fact a stranger.  He hugged her and kissed the top of her head.  The school treated this as a sexual assault and kicked him out.

Those unfamiliar with autism will likely not recognize what appears to have happened in this case.  Many autistic people have a neurological deficit known as prosopagnosia in which a person’s ability to recognize and remember the faces of others is severely impaired or, in the most extreme cases, completely missing.  It is not the fault of a person with prosopagnosia if they fail to recognize someone or mistakenly believe that a stranger is someone that they know.  This case should have been treated as an innocent misunderstanding, not as a violent crime.  The school’s failure to do so had the effect of discriminating against Ferguson on the basis of his disability.

There is also good reason for concern that the affirmative consent policies used by many academic institutions may have a disparate impact on autistic students.  Under these policies, both parties must explicitly express their consent prior to any sexual act in order for it to not be held to constitute sexual assault.  While the exact definition of affirmative consent may vary from institution to institution, many policies require that consent must be “enthusiastic”[2][3] in order to be valid or contain provisions that a verbal “yes” does not constitute valid consent if it is contradicted by nonverbal cues.[4]  While supporters of affirmative consent often call it “Yes Means Yes,” this label is highly misleading as “yes” may actually mean “no” if the nonverbal communication does not match.  Sexual consent educator Jaclyn Friedman asserts that “men (and women!) are perfectly capable of understanding social cues, even ones where someone is saying ‘no’ without using that actual word.”[5]

The problem is that this claim simply does not hold for many people on the autism spectrum.  Autistic individuals often have impairments in various forms of nonverbal communication such as facial expressions, tone of voice, and body language.  The semantic and pragmatic aspects of language, sometimes known more informally as “reading between the lines,” are also often an area of challenge.  As such, if a woman says “yes” but signals nonverbally or through the context that she really means “no,” an autistic man may not be able to tell the difference and may genuinely believe that he has consent.  To treat him as guilty of sexual assault in such cases is an injustice.

In seeking to ensure that autistic students are treated fairly under Title IX, it is important to recognize that not all people on the autism spectrum are diagnosed.  While the stereotypical image of autism is a child with a severe developmental disability, often one who is unable to talk, many autistic people are high-functioning and do not receive a diagnosis until adulthood, sometimes many years or even decades into adulthood.[6]

Prosopagnosia, the face recognition deficit discussed above, is not unique to autistic people.  Research has found that as many as 1 in 50 people are born with this deficit, and the overwhelming majority remain undiagnosed.[7]  As such, if we wish to ensure that people with these disabilities are not thrown under the bus, relying on special treatment on the basis of a diagnosis simply won’t cut it.  Our Title IX policies that are used across the board should be designed in a way that won’t subject individuals to being treated as criminals on account of autistic traits.

The Department of Education has initiated a rulemaking process to modify the regulations promulgated under the prior administration.  These regulations substantially improved due process protections, and it is feared that that the changes will bring back many of the unfair policies that were in use under “Dear Colleague” letter.  If so, these changes would be to the detriment of autistic students.

If we are serious about ensuring that all students have equal opportunity to learn, then the needs of autistic students must be taken into account.  This will be best accomplished by further strengthening due process protections.  Schools should be prohibited from using the affirmative consent standard, and they should be required to use a definition of sexual assault that is narrow enough to distinguish between a violent crime and an innocent mistake.  Returning to the failed policies of the past would be a huge step backward.

Citations:

[1] https://www.nbcdfw.com/news/local/student-with-autism-kicked-out-of-college/2101622/

[2] https://uhs.berkeley.edu/sites/default/files/hp-consentdiscussionguide.pdf

[3] https://health.columbia.edu/content/consent

[4] https://www.wcsu.edu/womenscenter/definition/got-consent/

[5] https://www.vox.com/first-person/2018/1/19/16907246/sexual-consent-educator-aziz-ansari

[6] https://www.cnn.com/2008/HEALTH/conditions/03/28/autism.essay/index.html

[7] https://news.harvard.edu/gazette/story/2006/06/face-blindness-disorder-may-not-be-so-rare/

Removing or Weakening the Presumption of Innocence in Title IX Proceedings Would Institutionalize ‘Cancel Culture’

Raul Jauregui, Esq.

May 5, 2021

The presumption of innocence, currently enshrined in US law when we face an accusation, makes it fair for everyone because we can state our defense.  This includes any victims, be they man or woman.  In the case of the “DeVos Title IX rules” (Rules), that fairness currently means that when a woman accuses a man of sexual misconduct, and then the man turns around and tells the school “not so, it was actually she who did to my body things I did not permit,” both the woman and the man stand on equal footing to prove their story.  Under the Rules both man and woman can investigate, evaluate, and tell their side of the story because they are both presumed innocent.  That is precious.

But President Biden’s possible rollback of the Rules seeks to take away from all students, be they man or woman, black or white, gay or straight, that precious fairness by assuming guilt according to who accused whom first, that is, by writing “cancel culture” into the law.  That is wrong.  Cancel culture is a private act: People can stop talking to each other in protest all they want, but we cannot pass a law that prevents anyone to tell their side of the story to a school.  Incorporating cancel culture into the Title IX rules by assuming guilt formally silences only one side.  If we do that we engage in discrimination.

I present this fictional scenario, based on my experiences as a Title IX lawyer. to illustrate the risk that cancel culture’s institutionalization of the assumption of guilt would pose for educational fairness:

Because of a sordid history of childhood sexual abuse, Carmela Otolumbi, suffers from Dissociative Identity Disorder (DID) (1) and still got admitted to Seaside State University.  But her school’s Title IX staff and classmates do not know she has DID—they only see “Carmela” the 19 year old overachiever, not her DID twin, “Carmela2.0” the 19 year old cruel punisher.  So when Carmela2.0 accuses Pedro Juarez, another student at Seaside, of sexual assault, everyone believes her and Pedro ends up back home, angry, and suspended.  Classic for DID patients, Carmela, the overachiever, suddenly thrives in the attention she receives from everyone.  DID overachievers, after all, deserve what Carmela now has and did not get as a child: #survivor status, special school funding, secure housing of her choice, and the respect of all the women on campus. #respect. Pedro, meanwhile, has gone from pre-med student to car washer.  His life is over. Carmela starts public speaking about her assault experience, about her #seasiderapist (she baptizes him that, hashtag and all), and about how she experiences daily triggers that re-traumatize her, particularly because Pedro remains active on social media.

Carmela2.0, the cruel punisher one, in a classic DID way, cannot stand Pedro’s Insta photos in Cancun.  So she takes her rage to Tiktok and starts a campaign to cancel Pedro. #whodidyourapeinCancun?  Carmela2.0 goes nuclear in her attempt to expel Pedro from Seaside and to, while she is at it, get everyone at Seaside State fired.  #Seasideenoughrape. Carmela2.0, in a DID attack, starts on-line fund raising, publishes her sad fiction on Medium, receives over $10,540.00 for her legal fund, has a rally which she live streams on Instagram, blogs, and makes TikTok cameos.  She’s #woke. Carmela 2.0 does everything she can to cancel Pedro.  And she expects Title IX to do the same: Carmela2.0, as any DID punisher would, demands that everyone believe her word that Pedro is guilty and that this is #theT9law to protect a #TitleIXsurvivor.  Of course, Carmela2.0 never shares as part of her cancel campaign, that Pedro says she raped him, or that she suffers from DID.  Cancel culture is so powerful, though, that Carmela2.0 grins from ear to ear as her followers on Insta explode, #ally and as more and more students at Seaside call out the culture of tolerance that led to her “exploitation” and sign on-line petitions to expel Pedro #expelCarmela’srapist, and to fire everyone in Seaside’s staff.  Why not?!  I mean, #metoo.

Both Carmelas have now cancelled Pedro’s life at Seaside State.  On line, both Carmelas have done away with Pedro’s presumption of innocence.  Because #Seasiderapist brings up Pedro’s Cancun photos, Google tags him, so he moves to a secret home.  Pedro has been found guilty and convicted on social media.  All his friends block him on Insta.  His Tweeter feed is overwhelmed with slurs.  Year-long Snaps with ex friends suddenly end.  Pedro’s Seaside roommate and best witness also drops out of every single chat group and snap because cancel culture makes him the #Seasiderapist #enabler—he, the kid studying religion.  And Seaside State does nothing to cure Pedro’s on–line re-victimization even though Pedro and his girlfriend complain to Seaside State’s administrators, and to the local district attorney, that this is Carmela2.0’s conspiracy to violate their civil rights.  Twitter refuses to suspend Carmela’s @Seasiderapesurvivor.

Emboldened, both Carmelas become Title IX activists.  They blog and Tiktok as hard as they can that “their #survivor experience” demands that the Rules must be changed to assume that Pedro is guilty, and that Seaside State has not punished him enough.  This time the Carmelas start fund raising on line, to sue to change the Rules.

What Pedro, his roommate, his girlfriend, and some Seaside State employees just experienced from both the Carmelas, “cancel culture” “is a modern form of ostracism in which someone is thrust out of social or professional circles – whether it be online, on social media, or in person. (2). Cancel culture turns off the light and makes it all dark.  But most importantly, cancel culture is a private choice—akin to shopping on Amazon or not, and not a public rule—akin to you must have a driver’s license or you can’t drive. This private/public distinction is why what the Carmelas now want, to incorporate cancel culture into the Title IX rules, is unfair: It transforms cancel culture, a private, harsh remedy, into an unconstitutional governmental act.  That is absurd.  Yet, sadly, cancel culture’s most direct impact on the Title IX rollback activism can be seen on real, Carmela-like calls to eliminate the Rules’ presumption of innocence.  That is, in our example, to pass a law that takes away Pedro’s ability show the evidence, tell his story, and rescue his name from cancellation, to then regain his career, and his life.

Cancel culture’s call to stop the presumption of innocence takes away the Title IX guarantee that everyone has the right to an education that is free from sexual hostility.  Incorporating cancel culture into the Rules has many fatal flaws:  It assumes that all men are indeed guilty. (They are not).  It makes no room for mistakes, revenges, confusions and staff ineptitude. (These happen all the time).  It rushes to judgment in a way no different from the summary trials of any authoritarian dictatorship.  Cancel culture as privately applied to the virtual reality world in which students facing sexual misconduct are shamed, makes them guilty, ON THE INTERNET.  But to then take that insolence and make it law, which eliminates the precious presumption of innocence so natural to life in the US, violates our social norms.  Cancel culture takes the worst tool of authoritarianism—coercion—and, should it be incorporated into the Rules, as the Carmelas want, would use this coercion to replace one of the best attributes of our democracy—the presumption of innocence.

Even through this fiction that I just wrote out for you, in an environment limited to Carmela’s mental illness and her smart phone’s screen,  you see how cancel culture brings up the worst in us.  What Carmela has not yet grasped is that in canceling Pedro, she raped him.  What we all need to agree on is that under the Rules for Title IX Pedro, while innocent to begin with, is presumed innocent as a matter of law.  To change or weaken that guarantee in the form Rules that institutionalize “cancel culture” by rejecting the assumption of innocence, by granting complainants the power to brand their respondents “guilty” just because that’s the #staywoke thing to do, turns the United States higher education scene into a Gulag, it lets the inmates run the insane asylum, and puts everyone—including vulnerable gay students and students of color at risk.

The current Title IX regulation only barely makes the process fair for respondents of allegations of sexual misconduct.  To take away the fairness in those rules by presuming guilt makes “cancel culture,” a private remedy, the official standard for education law in the US.  That is wrong.

Footnotes:

• DID is no joke. “She is among a surprising 1 percent of the population with this psychiatric condition, formerly called multiple personality disorder, which was famously portrayed decades ago in films like “The Three Faces of Eve” and “” It mostly affects women.”  Jane E. Brody, A Documentary Explores Dissociative Identity Disorder, The New York Times, March 22, 2021 available at:  https://www.nytimes.com/2021/03/22/well/mind/dissociative-identity-disorder-busy-inside.html
• Those who are subject to this ostracism are said to have been “cancelled”. The expression “cancel culture” has mostly negative connotations and is commonly used in debates on free speech and censorship”.

Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses

April 21, 2021

“Victim-centered” philosophy has become widely utilized by campus adjudication panels across the country (1).  “Victim-centered” ideology presumes that the accuser is always telling the truth, and any inconsistencies in his or her testimony are taken as actual proof of the putative traumatization. Of course, this assumption precludes the possibility that her memory was affected by excessive alcohol intake, or that she may be recounting a well-embellished falsehood.

Recently the New York Supreme Court ruled on a case in which a female student from the State University of New York – Purchase claimed she was a victim of PTSD, which she said precluded her from giving consent to sexual intercourse.

According to a recent commentary, the New York State affirmative consent policy states students “must obtain consent at every escalation of sexual activity through words or actions. In practice, schools have punished students after accusers claim they didn’t give constant consent, like a continuous question-and-answer session. As I have previously reported, there simply is no way for an accused student to prove they obtained affirmative consent under current, draconian policies.” (2)

According to Doe, he and a female Purchase College — State University of New York student were watching a movie one evening with some other students at Doe’s dorm suite. When Doe decided to attend another party, the woman asked, and was permitted to stay at the dorm suite with the other students.

When Doe later returned to the dormitory, the female asked another student to leave so the two students could be alone. She then asked Doe if she could stay the night and requested a pair of Doe’s pajamas to change into. The woman then got into Doe’s bed. The two students began to kiss, and the woman assisted Doe in removing her pajama bottoms. After some initial sexual activity, Complainant took the initiative to request Doe to use a condom. The encounter then progressed to sexual intercourse.

The following day, Doe attempted to contact the female student in a friendly, everyday manner. Three days later she reported the encounter as a sexual assault. A Title IX investigation concluded with Doe being charged with a violation of the Student Code of Conduct, which prohibits any sexual act without consent or sexual intercourse with someone considered to be physically helpless.

The school Hearing Board determined that statements by the woman (now the “Complainant”) about giving consent were conflicting and unreliable. The Board stated it was “concerned that some of [Complainant’s] statements after her initial report were tainted by reading the supports of other witnesses and parties.” This assessment was largely due to the woman’s accounts changing from what she said to the University Police and Title IX Investigator, compared to how she testified during the hearing.

For example, the Complainant told the Police that she was not fearful of Doe.  But the woman later told the Hearing Board that she did not ask Doe to stop because she was fearful of him. Additionally, the student changed the reasons for her inability to give consent: First it was fear, then incapacitation due to alcohol, finally it was an anxiety attack.

In contrast, Doe testified that the Complainant was of sound mind throughout the interaction and believed there was clear-cut consent, based on her actions. Nevertheless, the Hearing Board concluded that while the kissing and removal of the Complainant’s pants were consented to, the remainder of the sexual activity was not. The SUNY Purchase’s Appeals Board found that Doe violated the Student Code of Conduct and suspended him for one year.

Doe then filed an Article 78 appeal to ask the New York Supreme Court to review SUNY Purchase’s determination that he violated code C.8 of the SUNY Purchase Student Code of Conduct.

The Court noted that its review of the case was limited to whether SUNY Purchase’s decision was based on substantial evidence. Substantial evidence is relevant proof that would lead a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

The Court cited Education Law § 6441(1), which states that “consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.” The Court noted that the college Hearing Board had reported Complainant’s testimony lacked credibility. The Court concluded that the SUNY Purchase’s decision to punish Doe “was not supported by substantial evidence,” and that the alleged absence of consent amounted to mere conjecture and speculation.

On March 31, 2021 the Court issued a ruling that annulled SUNY Purchase’s decision and dismissed the charge that Doe violated the Student Code of Conduct. Additionally, the Court vacated all penalties against Doe and ordered the expungement of any references to such findings from his academic record (3).

Kimberly Lau (4), counsel to the accused student, explained, “John Doe was found responsible of sexual assault despite the Hearing Board’s determination that the complainant’s testimony on consent was ‘unreliable and conflicting.’ SUNY Purchase’s disciplinary decision was illogical and in violation of NY State law and its own policies on consent. I’m pleased the Court unanimously agreed.”

OCR Review

Ironically, just three weeks before the Court issued its ruling, President Joe Biden issued an Executive Order calling for the Department of Education to consider “suspending, revising, or rescinding” the newly implemented Title IX regulation (5).

The Biden Order is relevant to the New York case because the new regulation requires that complainants and respondents be treated “equitably,” which means “impartial investigations and adjudications,” including “an objective evaluation of all relevant evidence,” according to the language of the regulation (6).

Clearly, the SUNY Purchase adjudication process was not impartial, objective, or equitable.

So as the Office for Civil Rights moves forward with its review of the Title IX regulation, the Office needs to pay attention to the findings of the New York Supreme Court. Specifically, the OCR needs to consider revising the existing regulation to discourage colleges’ reliance on biased “victim-centered” methods, and improve the specificity of its requirements for impartial, objective, and equitable adjudications.

Links:

1. https://www.saveservices.org/sexual-assault/investigations/ 
2. https://www.dailywire.com/news/university-said-accuser-was-conflicting-and-unreliable-but-still-found-accused-student-guilty-a-court-just-overturned-the-schools-finding?fbclid=IwAR004lJwvFtCT3jEN82daxDcgb7pMS5NSSm9c920BXbrCGxQkCRzmjQihdA 
3. http://www.nycourts.gov/courts/AD2/Handdowns/2021/Decisions/D66100.pdf 
4. https://www.collegedisciplinelaw.com/Kimberly-Lau 
5. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/
6. Section 106.45 (b)(1).  https://www.saveservices.org/2020/05/new-title-ix-regulatory-text-34-cfr-106/

Tulane U: COVID-19 sidelines sexual misconduct procedures

It is no secret that Tulane Univerity has a systemic sexual violence problem. According to the 2017 Climate Survey, 77% of all student survey respondents report being victims of sexual assault and 71.4% report being subjected to unwanted sexual contact. 75.6% of these perpetrators were Tulane students and 51.8% of the reported instances occurred on campus. This year is no different as “The pandemic did not end sexual violence—or sexual harassment or sexual discrimination—on this campus,” Meredith Smith, Tulane University sexual misconduct response/Title IX coordinator, said. According to the breakdown of student disclosures in the fall of 2020, disclosure rates of sexual misconduct exceeded those from fall 2019 until students were sent home due to COVID-19. These numbers paint a harrowing picture of the failure of Tulane’s conduct system and the inescapable reality of sexual misconduct for students, unchanged since the Climate Survey’s publication and, if anything, overshadowed by COVID-19.

To best understand the priority imbalance between COVID-19 conduct violations and those related to Title IX, an overview of the external legal factors is required. In May of 2020, Title IX statutes around the U.S. changed dramatically. The new regulations redefined what constitutes sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Further, the new Title IX issues important changes to the trial process: an individual accused of sexual misconduct has the right to cross-exam their accuser, and universities have the option to use a more difficult standard of proof by requiring “clear and convincing” evidence.

The majority of sexual misconduct reports at Tulane are outside of these newly defined parameters, but the university pledged to treat all sexual misconduct that was previously a violation of Title IX as eligible for an administrative procedure. Tulane also does not opt to use a stricter standard of proof in formal administrative hearings. Instead, to be found in violation of the Tulane University Code of Student Conduct, there must be a preponderance of evidence, or, in layman’s terms, that it is more likely than not a violation occurred.

Regardless of changing statutes, the sexual misconduct epidemic at Tulane has not disappeared and was rather pushed into the shadows and out of the mind of the administration. Since Tulanians’ return to campus this fall, the university has promptly investigated and prosecuted violators of the university’s COVID-19 guidelines. From expulsions, suspensions, fines and administrative threats, Tulane spares no expense regarding the consequences of public health rule flouting.

When it comes to COVID-19 related offenses, a picture of maskless students standing in a group, sent to the conduct office anonymously without context, is taken at face value and serves as sufficient grounds for swift administrative action. In instances of Title IX violations, all parties are subject to an inefficient and traumatizing investigation and trial that, if anything, dissuades future victims from coming forward and allows perpetrators to remain unscathed. The discrepancy in investigation times illustrate a startling reality in which formal conduct investigations, despite being labeled as equally pressing, are not treated with equal importance.

The lack of administrative ferocity surrounding instances of sexual misconduct prior to COVID-19 demonstrates a pattern. According to the Climate Survey, 84% of both male and female respondents claimed Tulane did or would actively support them with formal or informal resources if they reported sexual misconduct. Despite this figure, in 2017, there were only 205 reported cases at Tulane of sexual misconduct and, of that group, only 16 had disciplinary proceedings, and only 8 resulted in disciplinary action. This trend still exists, and few reports of sexual misconduct proceed to formal conduct hearings. Although the Office of University Sexual Misconduct Response and Title IX Administration supports victims to the best of their abilities, the formal conduct system fails them at their weakest hour. This is unacceptable.

This conundrum is not unique to Tulane. In September 2020, New York University’s newspaper published an article regarding the deprioritization of Title IX during COVID-19. Similar to circumstances at Tulane, NYU suspended multiple students for violating COVID-19 guidelines and sent numerous reminders to students surrounding the administration’s willingness to act immediately and aggressively against those flouting the rules. Yet, according to NYU student Nicole Chiarella, NYU’s administration addresses Title IX with a startling nonchalance amidst a pandemic. “NYU’s continual passivity showcases how without a financial incentive — such as the one provided by reopening campus amid a pandemic — sexual assault will remain as a mere administrative afterthought, subsequently harming survivors … Its persistent disregard for survivors of sexual assault fosters a toxic campus environment that safeguards the accused and ostracizes the very students NYU claims to protect,” Chiarella said.

At Tulane, students’ email inboxes are constantly filled with reminders from the Office of the Vice President of Student Affairs to be respectful citizens and practice proper COVID-19 protocols, yet the administration remains silent on issues of rape, harassment and nonconsensual sexual behavior. How can a university aggressively combat systemic sexual misconduct when victims and non-victims alike lack procedural transparency, a constant influx of information and a feeling of safety when disclosing their experiences? The simple answer is they cannot.

The American Civil Liberties Union estimates that 95% of campus rapes in the U.S. go unreported. One of the primary reasons students do not come forward is a fear that their institution will not believe them. Although, in theory, Tulane mitigates this difficulty by not adopting scrutinous standards of proof, submitting sexual violence victims to lengthy investigation processes, not applied with the same intensity to COVID-19 related offenses, places an undue burden on procedures claiming to be of equal conditions.

The Code of Student Conduct, in addressing Title IX procedures, promises the university will “promptly and equitably respond to all reports of discrimination and harassment in order to eliminate prohibited conduct, prevent its recurrence, and address its effects on an individual or the community.” Similarly, the Office of Student Conduct, tasked with investigating Title IX and all other conduct violations, claims that the university attempts to conclude their investigations within 60 days of an issuance of the notice of investigation, barring special circumstances. With Tulane hyperfocused on tracking down those guilty of crimes against the COVID-19 guidelines, perpetrators of sexual violence have the luxury of time and administrative apathy, as the conduct system pushes all non-pandemic related issues to the side.

Delays in Title IX cases during the COVID-19 pandemic have numerous adverse effects on survivors. Accused perpetrators are able to use a public health crisis to further restrict victims’ rights access to an education or in some cases to see justice served. Prior to the May 2020 Title IX changes, Title IX complaints were required to be handled in a timely manner. Although Tulane promises this, including provisions for special circumstances allows the conduct system to revise the timeline of Title IX cases at their own discretion.

It is illogical to assume the administration was unaware of the possible COVID-19 delays in sexual misconduct procedures. Tulane had ample time to create an action plan, but the administration chose not to prioritize this pervasive issue. Various organizations published information directed at academic institutions upon the onset of the pandemic, including that “for students who are survivors of sexual assault, navigating resources and reporting may be more challenging due to COVID-19,” The Rape, Abuse & Incest National Network, the nation’s largest anti-sexual violence organization, said. Equal Rights Advocates, in an article counseling schools on how to navigate Title IX hearings during the pandemic, urged universities to move forward with investigations and hearing without unreasonable delays because students have a fundamental right to “a prompt and equitable resolution of sexual misconduct claims.” Further, the article explains that delays in these procedures force survivors to remain traumatized and uncertain, preventing them from finding closure and potentially leading to institutional betrayal.

Rates of sexual misconduct at Tulane are substantially higher than the national average and the pervasiveness of Title IX violations on campus severely diminish students’ feeling of safety and community. That being said, if the Office of Student Conduct promises to “foster a safe and healthy community in which academic success can occur” how can they push Title IX issues to the side which effectively deny victims a right to their education? The administration has shown it can act swiftly to punish violators of COVID-19 guidelines, build temporary outdoor classrooms, and enforce mask and testing mandates. Yet, this enthusiasm disappears when it comes down to tackling the pre-existing and well-documented sexual misconduct problem on campus.

To address the administrative difficulties of addressing sexual misconduct, “Let’s start with admitting that the system is hard, even if it works perfectly, and so to dedicate ourselves to unpack each step and possibility in the investigation and adjudication and put as much care and support as we can into a system that is processing so much pain,” Smith said. Tulane cannot continue to treat cases of sexual misconduct with apprehensiveness and lanquidity; it must address these procedures with the same intensity and order as it does with violations of COVID-19 guidelines.

Source: https://tulanehullabaloo.com/56435/views/opinion-covid-19-sidelines-sexual-misconduct-procedures/