Category: Campus

University suspended black student for a year because drunk white girl kissed him: lawsuit

Post author By saveadmin
Post date September 21, 2020

She told three different stories – and the last one can be falsified

Long Island University punished a black student for sexual assault despite his white accuser’s constantly changing story and several witnesses who either contradicted or couldn’t corroborate her claims, according to a lawsuit filed last week against the private university in Brookville, New York.

“John Doe” accused LIU of Title IX and Title VI violations, saying “gender bias was a motivating factor” in the “erroneous outcome” of his proceeding and racial bias explains the “differential treatment” he received compared to “Jane Roe.”

The university also violated his due process rights under New York law and committed breach of contract, including by failing to use the “preponderance of evidence” standard outlined in its disciplinary code, the suit claims.

Jane had drunkenly kissed John, “an active and well-respected member of his church,” without his affirmative consent “in front of many witnesses” in a dorm room. (As a football player on LIU’s team, John had also resolved not to drink during the season.) Later that night she panicked that her public behavior could harm her “committed relationship” with another man.

The next day she filed a complaint against John, claiming that the night before he had forced her to perform oral sex on him. He also “pulled” her into another room where he held her down and continued kissing her, Jane claimed. In the final version of her story, she made a factual assertion that could be vetted: John assaulted her behind a “wall” of dressers in the room, which is furnished by LIU.

Despite the fact that Jane’s story held no water with witnesses and she was never alone with John, LIU found her more credible in a “deficient and hasty investigation.” Having found him guilty of sexual assault, the university then inexplicably invited John to reapply to LIU for the next fall semester, the suit says.

That invitation may have been a ruse: John would learn from his coach several months later that the guilty finding had nullified his full-ride athletic scholarship, which “effectively expelled” him from LIU.

Title IX Coordinator Jean Anne Smith (below), also associate dean of students, wore several mutually exclusive hats in the proceeding, the suit claims. She represented herself to both John and Jane as each student’s “advocate,” investigated the allegations, judged John guilty and then picked his sanctions.

Smith and the other investigator, Nicole Thomas, repeatedly withheld information from John, including his right to present witnesses, he argues. Their own interviews with witnesses were “cursory and brief,” ignoring “key inconsistencies and contradictions.”

They also gave no reason for siding with Jane’s story over John’s – that she initiated nonconsensual contact with the kiss – and didn’t even let him hear her testimony, much less cross-examine witnesses, the suit claims. John says neither LIU nor Jane ever reported her allegations to police.

Rights limited to ‘reporting individuals’ – not those accused

LIU’s bias is institutionalized in its Sexual Violence and Harassment Policy’s Students’ Bill of Rights, which “shockingly” limits protections to only “reporting individuals” – those who allege violations, according to the suit.

This is despite the policy’s explicit promise of several rights for “all” students, including the presumption of innocence for accused students, “right to make an impact statement” on the cusp of sanctions and “equal opportunity” to present witnesses and evidence. John claims he was afforded none of these.

The policy does, however, reflect New York’s affirmative consent law: “both evince a surface-level refusal to recognize uniform rights for the accuser and the accused.” Signed into law by Gov. Andrew Cuomo, the statute has an “inherent bias” because it requires colleges to predetermine that any accuser “is at fault … or should have acted in a different manner to avoid” violations that have not been proven, John says.

Jane twice offered John drinks that he declined over the course of the night of Sept. 2, 2017, which started at the party and then moved into a dorm room. He says he didn’t know who she was until he learned she had accused him of sexual assault.

She “unexpectedly kissed” him for “a few seconds” even though he told her he had a girlfriend. Later, when he stopped to say hello to his football team captain on the way home, John saw Jane in that room as well, but she “appeared dramatically more intoxicated” than when she had kissed him.

He rushed back from his own dorm after a teammate called to say Jane was telling people he had “forced himself” on her. His own teammates – all white – were too drunk to tell him what she was saying, and no one else he recognized from the party knew who had accused him, or of what, according to the suit.

‘Objectively’ false claim about room configuration hiding the assault

Public safety officers told him the next day he had to leave campus immediately, having been accused of sexual assault. He was not told at the investigation’s outset that Jane had accused him of forcible oral sex and “dragg[ing]” her into her room, where Jane’s roommate allegedly pulled him off her.

Not only was the date of the incident wrong in the report, but it included no “single factual allegation” or specific code violation, he says, alleging it violated New York law.

Smith, the Title IX coordinator, was “masquerading” as John’s advocate when investigator Thomas interviewed him, before he knew Jane’s allegations or that Smith was also representing Jane. Neither told him he could pick his own advisor, conveyed “the significance of an advisor in the context of a Title IX investigation” or told him his other rights, the suit says.

By John’s count, Smith had “surreptitiously assum[ed]” four “conflicting simultaneous roles” – advisor to John and Jane, Title IX investigator and “sole party responsible” for adjudicating Jane’s complaint. He characterized the Sept. 5 interview as “unlawful.”

John never did get notice that the university was deliberating sanctions against him, with Smith telling John’s mother in a phone call Sept. 11 that she was going to “represent” him in “the best light possible” so he could return to school, he claims. He never received evidence either.

The guilty finding and one-year suspension did not describe the evidence or “the rationale underpinning the determination.” It wasn’t until he had asked for them several times that the university finally gave him a “one-paragraph response letter” more than a month later.

It vaguely and falsely claimed that the investigation had corroborated Jane’s story “in important respects” through “other evidence,” while John’s account “was inconsistent” with evidence, the suit claims.

This is despite the fact that she accused him of forcing her to perform “oral sex in a well-lit room in the presence of many people,” none of which was corroborated, “and the room objectively did not have dressers in the middle” that obscured the alleged assault “a few feet away” from others, as Jane claimed in her third account of the night.

Chose to ‘railroad a young Black man with no history of misconduct’

Jane’s friends also contradicted her story about being “dragged” down the hallway by John, saying they were walking “one-behind-the-other,” and her roommate denied he was on top of Jane in their room. “Roe’s claims remain completely unsubstantiated to this day”:

This decision was obviously contrary to the preponderance of evidence standard and demonstrated a dramatic bias in favor of the female accuser, even when that accuser’s claims constituted facially-implausible allegations that she had been subjected to two separate and consecutive instances of public sexual assault in front of dozens of peers and somehow none of those witnesses saw any of it happen.

LIU’s treatment of John versus Jane is so disparate as to suggest “strong” sex- and race-based bias in the proceeding, from flipping the burden of proof on him to yanking his scholarship without notice, he claims. It also failed to give a rationale when it rejected his appeal, “doubl[ing]-down on their choice to railroad a young Black man with no history of misconduct on a full scholarship to their institution.”

He and Jane were “similarly situated” parties because each accused the other of initiating sexual contact without affirmative consent, meaning both should be “equally credited” as alleged violations LIU policy. The university showed its “pattern or practice of racial bias” against John by claiming it could find no “negative motivat[ion]” for Jane to accuse him, despite her observed panic that the public kiss could harm her other relationship.

John’s racial bias claim also extends to LIU’s treatment of a white teammate who assaulted his girlfriend the same week Jane accused John. The university did not put the teammate through the same ordeal as John’s, instead holding “a meeting with their athletic teams about sexual assault.”

https://www.thecollegefix.com/believe-the-survivor-heres-11-times-young-black-men-were-railroaded-by-campus-sexual-assault-claims/

Campus Sexual Assault Sexual Harassment Title IX

Dual Track Adjudications: Recipe for Legal Disaster

Post author By saveadmin
Post date September 16, 2020

One month has now passed since the new Title IX regulation took effect on August 14, 2020.[1] According to this historic civil rights regulation, schools receiving federal funding must now provide students with, among other procedural protections, live hearings and the opportunity for real-time cross examination through an advisor. The Office for Civil Rights (OCR) has stated that the regulation only will be enforced as to conduct that occurs after the effective date,[2] and that schools are free to handle “non-Title IX” misconduct on their own terms.[3]

Some schools, as discussed by Teresa Manning at National Review, “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.”[4] Princeton and Tulane, for example, have created multiple disciplinary tracks where the regulation’s procedural protections are afforded for some types of sexual misconduct but not for others.[5] This is an attempt to defy the regulatory intent to restore due process protections on campus.

Unfortunately for these recalcitrant universities, there is another branch of government that vigorously enforces due process rights: the judiciary. Students often go to court if they believe they have been victims of Title IX discrimination, due process violations, or breach of contract. (Private universities are not subject to the Due Process Clause as they are not arms of the state. In many jurisdictions, however, the student handbook or code of conduct is a contract between the university and the student, and private universities can be sued for violating the procedures in those contracts.)

In these lawsuits, OCR’s limited regulatory definition of what is and what is not “Title IX Conduct” simply does not apply. Rather, schools are held liable if they discriminate “on the basis of sex.”[6] Indeed, whether the court uses the Yusuf framework of “erroneous outcome” and “selective enforcement,”[7] or the Purdue “plausible inference” standard to evaluate the allegation at the motion to dismiss stage, the fundamental question is whether the university discriminated on the basis of sex, not in which artificial “track” the discrimination occurred.

To this end, universities need to consider a string of milestone federal circuit court decisions issued in the last several months that were favorable to accused students.

First, the Third,[8] Eighth,[9] and Ninth[10] Circuits have now adopted the Seventh Circuit’s Purdue plausible inference pleading standard, which means that in four of the 12 regional circuits across the country, accused students now have a much easier time suing for Title IX discrimination. This is a dramatic change in the law; this easier standard did not even exist as of June 2019. Now, roughly a third of the nation’s federal courts have adopted it.

Second, the Sixth Circuit in Oberlin was the first circuit court to hold that the outcome of a disciplinary proceeding itself can be used as evidence of discrimination for purposes of Title IX.[11] This means that for the vast majority of students that do not have direct evidence of discrimination pre-discovery (because the university typically wants to keep its email communications secret), students in the Sixth Circuit can use their adverse outcome as a way to get to the discovery phase, allowing access to internal university communications, provided that the student is able to cast “grave doubt” upon the outcome.[12]

The bottom line is this: While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices. It will be better for universities to employ the procedural protections the regulation requires for all allegations of sexual misconduct, thereby limiting their liability exposure to costly and embarrassing lawsuits.

Citations:

[1] 34 CFR §106 et seq.

[2] https://www2.ed.gov/about/offices/list/ocr/blog/20200805.html

[3] Pennsylvania v. DeVos, No. 1:20-CV-01468 (CJN), 2020 WL 4673413, at *11 (D.D.C. Aug. 12, 2020).

[4] Teresa Manning, Title IX and Targeting the Two-Track Approach, NAT’L. REV., Aug. 24, 2020, https://www.nationalreview.com/2020/08/title-ix-universities-use-two-track-approach-to-avoid-new-rules/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-08-24&utm_term=NRDaily-Smart.

[5] Id.

[6] See, e.g. Doe v. Purdue Univ., 928 F.3d 652, 667-8 (7th Cir. 2019).

[7] Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994).

[8] Doe v. Univ. of Scis., 961 F.3d 203 (3d Cir. 2020)

[9] Doe v. Univ. of Arkansas – Fayetteville, No. 19-1842, 2020 WL 5268514 (8th Cir. Sept. 4, 2020)

[10] Schwake v. Arizona Bd. of Regents, 967 F.3d 940 (9th Cir. 2020)

[11] Doe v. Oberlin Coll., 963 F.3d 580 (6th Cir. 2020)

[12] Id. at 588.

Campus Sexual Assault Sexual Harassment Title IX

PR: Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

Post author By saveadmin
Post date September 16, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

WASHINGTON / September 17, 2020 – One month after a historic civil rights policy took effect at colleges across the nation, legal experts are warning administrators about the legal pitfalls of “dual-track” adjudications. Dual-track adjudications are employed by colleges when students or faculty are accused of a type of sexual misconduct that falls outside the strict definitions found in the new Title IX regulation.

Yesterday, SAVE issued a report titled, “Dual Track Adjudications: Recipe for Legal Disaster.” The Commentary notes that apart from the requirements of the new federal policy, “there is another branch of government that vigorously enforces due process rights: the judiciary.” The analysis cites recent decisions by the Third, Sixth, Eighth, and Ninth Circuit Courts that make it easier for an accused student to prevail in a legal action charging the university with sex discrimination (1).

The article concludes, “While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices.”

The SAVE Commentary echoes concerns recently expressed by a number of legal experts:

Last week, Samantha Harris and Michael Allen published an editorial titled, “Universities Circumvent New Title IX Regulations.” The attorneys reveal, “Things were supposed to change in August, when the new Title IX regulations took effect, with robust free speech and due process protections. Now it appears that many campuses are fighting to ensure these protections remain illusory. It’s not that institutions aren’t changing their policies. Rather, they are doing so to comply superficially while claiming increased authority to subject students and faculty to processes that provide few, if any, of the protections that the regulations require.” (2)

In an August 24 editorial, attorney Teresa Manning voiced concerns that schools “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.” For example, Princeton University’s dual-track policy does not require in-person questioning of parties, even though legal scholars believe that live cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” (3)

Addressing the issue more broadly, legal commentator KC Johnson identifies three themes reflected in the four recent appeals court decisions: officials’ indifference to innocence, widespread procedural irregularities, and institutions that bowed to political pressures to find more accused persons guilty. In his September 15 article, Johnson warns of the specter of continued litigation: “In theory, the new federal Title IX regulations, which require colleges to use fairer procedures, will protect against the injustices identified in the recent appellate decisions. But political, legal, and university opposition to the regulations cloud their future. It may be that federal courts will need to continue to correct campus processes that too often seem indifferent to justice.” (4)

If college administrators decide to create “dual-track” adjudications, SAVE urges that these systems assure the same level of due process protections as campus Title IX adjudications.

Links:

Campus Sexual Assault Sexual Harassment Title IX Equity Project Training

PR: Many Universities Not Compliant with New Title IX Requirement to Post Training Materials

Post author By saveadmin
Post date September 8, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Many Universities Not Compliant with New Title IX Requirement to Post Training Materials

WASHINGTON / September 8, 2020 – A review of the websites of 50 colleges and universities across the nation reveals that 65% are out of compliance with the Title IX regulation’s requirement to post all Title IX training materials. This past week, SAVE filed complaints with Office for Civil Rights against several of these non-compliant schools.

The Title IX implementing regulation, 34 CFR 106, has new provisions, which went into effect on August 14, 2020, that require the posting of Title IX training materials. The regulation calls on schools to post on their websites, “All materials used to train Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process.” §106.45(b)(10)(D)

On May 18, the Office for Civil Rights issued detailed guidance on the topic: https://www2.ed.gov/about/offices/list/ocr/blog/20200518.html. The guidance states, “All materials used to train Title IX personnel…Must be publicly available on the school’s website.” [emphasis in the original].

The guidance goes on to explain:

“Section 106.45(b)(10)(D) does not permit a school to choose whether to post the training materials or offer a public inspection option. Rather, if a school has a website, the school must post the training materials on its website.

A school must post on its website: “All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.” Posting anything less than “all materials” on the website in insufficient. Accordingly, merely listing topics covered by the school’s training of Title IX personnel, or merely summarizing such training materials is not the same as posting “all materials.” [emphasis in the original]

Many institutions, such as Princeton University (1), posted training materials geared toward students and faculty, or webinars provided by the Department of Education, but did not post the training materials used for Title IX staff. The federal regulation states that all materials used to train Title IX personnel must be posted. Training materials that are protected by a student ID number or password are also out of compliance, as the federal regulation states the material must be made publicly available.

In contrast, many schools are in compliance with the federal regulation’s posting requirement. Examples of such schools are Amherst College (2) and the University of Colorado-Boulder (3). The University of Vermont even posted a YouTube video of the actual training program that their staff attended (4).

SAVE has filed complaints with the Office for Civil Rights against 10 schools that are out of compliance with the federal regulation. More OCR complaints will be filed as SAVE continues its review of school websites.

The SAVE Title IX Equity Project has found that Title IX violations are widespread at schools across the country. These violations pertain to sex-specific scholarships, sex-specific programs, and due process procedures in campus adjudications. The number of open OCR investigations of such violations currently exceeds 200 cases, and continues to increase (5).

Citations:

https://sexualmisconduct.princeton.edu/reports
https://www.amherst.edu/offices/title-ix/title-ix-policy
https://www.colorado.edu/oiec/policies
https://www.uvm.edu/aaeo/title-9-sexual-misconduct
http://www.saveservices.org/equity/ocr-investigations/

Campus Title IX

PR: Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government

Post author By saveadmin
Post date August 27, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government; SAVE Urges Delay on Vote

WASHINGTON / August 27, 2020 – State senator Hannah Beth Jackson has inserted language into a Higher Education bill, SB-493, that would force California colleges to defy a new federal regulation designed to assure fairness during campus adjudications of sexual harassment. The federal rule, which recently took effect on August 14, requires that the school convene a live hearing where each party’s advisor (but not the student) is allowed to pose relevant questions to the other party.

Question-asking is viewed as essential to clarify the facts of the case and assess the credibility of each party. Such measures are necessary to identify allegations that are exaggerated or false.

Sen. Jackson’s language directly contradicts the federal requirements in two respects:

Would make the hearing optional: “They shall provide that the institution shall decide whether or not a hearing is necessary to determine whether any sexual violence more likely than not occurred.” (1)
Prohibits an advisor from posing any questions: “Any cross-examination of either party or any witness shall not be conducted directly by a party or a party’s advisor.”

Jackson’s provisions also ignore the findings of three recent judicial decisions:

In Doe v. California Institute of Technology, the court required the university to provide “an opportunity for the Committee to assess [accuser] Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by [accused student] John or the Committee itself. That opportunity did not exist here.” (2)

In Doe v. Allee (University of Southern California), the judge ruled, “When a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing).” (3)

In Doe v. Regents of the University of California (Santa Barbara) the court found that the campus committee denied the Plaintiff the opportunity to cross-examine the complainant on the effects of an antidepressant she was taking, leading the court to conclude that “[t]he Committee reached a significant finding based on nothing more than speculation.” (4)

The new Rule has been praised by a wide range of stakeholders, including the National Association of Criminal Defense Attorneys (5), Harvard law professor Jeannie Suk Gersen (6), former ACLU president Nadine Strossen (7), former Virginia governor Douglas Wilder (8), and others (9).

A survey of California voters found that many view false allegations of campus sexual assault to be a problem. 44.0% of respondents believe that such false allegations are a “big problem.” Only 14.4% viewed false allegations as “not much of a problem.” (10)

Links:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB493
Super. Ct. July 9, 2019
30 Cal. App. 5th 1036 (Cal. Ct. App. 2019)
28 Cal. App. 5th 44 (Cal. Ct. App. 2018)
https://www.nacdl.org/newsrelease/NewTitleIXRegulationsDueProcess
https://www.chronicle.com/article/The-Sex-Bureaucracy-Meets-the/248849
https://ricochet.com/podcast/q-and-a/nadine-strossen-the-aclu-and-betsy-devos/
https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html
http://www.saveservices.org/2020/08/numerous-groups-and-individuals-applaud-new-title-ix-regulation/
http://www.saveservices.org/sexual-assault/opinion-polls/

Campus Sexual Assault Sexual Harassment Title IX Victims

PR: Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

Post author By saveadmin
Post date August 18, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

WASHINGTON / August 18, 2020 – Sexual assault survivors, accused students, and faculty members are welcoming the new Title IX regulation, which took effect this past Friday on college campuses across the nation. Title IX is the federal law that bans sex discrimination at schools receiving federal funds. The new regulation replaces a 2011 Department of Education policy that sparked national controversy, hundreds of lawsuits, and thousands of federal complaints.

Sexual assault survivors are applauding the new regulation because it provides a detailed and legally enforceable framework for colleges to investigate and adjudicate allegations of sexual assault. Under the old policy, some victims reported the ‘brush-off’ treatment they received was more traumatic than the original assault (1).

Many of these victims complained to the federal Office for Civil Rights. As a result, the number of sex discrimination complaints increased over four-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). (2) Male victims of sexual assault are anticipating that their complaints also will taken more seriously by campus administrators.

Accused students will benefit from a restoration of fundamental due process rights, which include the right to an impartial investigation and an unbiased adjudication. Over the years, hundreds of wrongfully accused students have sued their universities. On July 29, for example, a federal appeals court reversed a lower court decision and reinstated sex discrimination charges brought by David Schwake against Arizona State University (3). The Schwake decision brings the number of judicial decisions in favor of students accused of sexual misconduct to 184. (4)

Faculty members, who found their free speech rights curtailed by expansive definitions of sexual assault, welcomed the new Rule, as well. The National Association of Scholars decried how faculty members had been “denied the chance to respond to complaints, the right to confront and question witnesses, and even the right to be presumed innocent.” (5)

On August 9, Judge John Koeltl issued a ruling that allowed the regulation to be implemented as planned on August 14. Highlighting the long-awaited improvements for all parties, the Judge noted the regulations will “benefit both complainants and respondents by providing procedural guidance for grievance procedures,” and promised complainants “greater assurance” that decisions “will not be overturned because the process did not comply with due process.” (6)

The new Rule has been praised by a wide range of stakeholders, including the Independent Women’s Forum (7), National Association of Criminal Defense Attorneys (8), Harvard law professor Jeannie Suk Gersen (9), former ACLU president Nadine Strossen (10), former Virginia governor Douglas Wilder (11), and others (12).

Staci Sleigh-Layman, Title IX Coordinator at Central Washington University, explains, “These new changes give a lot of credibility and due process and equal kind of attention to the person accused as well as the person coming forward… they put in place a process that seeks to provide due process for both sides.” (13)

Links:

Campus Civil Rights False Allegations Sexual Assault Sexual Harassment Victims

The New Title IX Regulation: Historic Civil Rights Victory

Post author By saveadmin
Post date August 14, 2020

“Victory belongs to those that believe in it the most and believe in it the longest.” – Randall Wallace

It is not common in one’s lifetime to experience a Civil Rights victory as historical as the one we celebrate today.

Today, August 14, 2020, the new Title IX regulation implementing rules for sexual harassment goes into effect at schools across America. SAVE celebrates this victory for our nation, our students, and faculty, many of whom have been subjected to unfair campus disciplinary hearings over the past nine years.

Since 2011, when the controversial Dear Colleague Letter on sexual violence was released, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with “expulsion” or “suspension”, and countless professors have been fired or censured. There is no limit to the trauma and emotional abuse these persons have experienced.

Many of these persons complained. As a result, the Department of Education reported that following release of the DCL, the number of Title IX complaints to the OCR increased nearly 5-fold, from 17,724 (2000-2010) to 80,739 (2011-2020).

Today we turn the page.

Margaret Thatcher famously said, “You may have to fight a battle more than once to win it.” Secretary of Education Betsy DeVos, her staff, and individual civil rights advocates and groups, well understand the numerous battles that were fought to get to where we are today. Let’s highlight some of these efforts:

2011-2013:

SAVE, the Foundation of Individual Rights in Education (FIRE), and the American Association of University Professors sent communications to the OCR calling for the withdrawal of its unlawful policy.
Families Advocating for Campus Equality (FACE) was established to engage in family support, education, and advocacy.
293 articles and editorials were published critical of the OCR policy.

2014-2016:

The Department of Justice reported the annual rate of sexual assault among college age females was 1/1000 women, refuting the widely disseminated one-in-five number.
Title IX for All was established, which offers a Database of OCR Resolution Letters and a Legal Database of lawsuits against universities.
A group of Harvard University Law Professors issued the statement, Rethink Harvard’s Sexual Harassment Policy.
A group of Penn Law faculty members issued their Open Letter, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities
The American Association of University Professors issued a report, The History, Uses, and Abuses of Title IX
Professors from around the country issued Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault
SAVE sent a letter calling on Congress to Rescind and Replace the Dear Colleague Letter (April 4), issued a Special Report, “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases;” and held meetings with staffers in 60 offices in the Senate and House of Representatives to discuss problems with the OCR policy. Over subsequent years, SAVE representatives would hold over 1,000 meetings with legislative staffers.
2,239 articles and editorials were published critical of the OCR policy.

2017-2019:

Five national organizations issued reports critical of the 2011 OCR policy:
- SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
- American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
- American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
- Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It
- National Association of Scholars: OCR’s New Sexual Harassment Guidelines Threaten Academic Freedom, Due Process
SAVE launched its State Legislative Initiative to prevent the passage of state-level laws that aimed to codify policies based on the Dear Colleague Letter.
On September 22, 2017, the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence. The same day, the OCR released a new Q and A on Campus Sexual Misconduct guidance document.
On November 29, 2018, the Department of Education released its proposed Title IX regulation.

2020:

On May 6, 2020 the Department of Education issued its final rule.
Four lawsuits were filed opposing the Rule, and amicus briefs were filed by SAVE, FACE, and FIRE.
- Attorneys General lawsuit (Request for Preliminary Injunction denied on 8/12/20)
- ACLU lawsuit (Pending)
- National Women’s Law Center lawsuit (Pending)
- State of New York lawsuit (Request for Preliminary Injunction denied on 8/9/20)

Today, August 14, 2020 the Final Rule is being implemented on college campuses and K-12 schools across America.

This has been an incredible journey ending in a momentous victory, but one that is not over. The letter of the law was penned by our U.S. Department of Education, and now the spirit of the law must be carried out to ensure our students and faculty receive every protection the Title IX law provides.

Campus Department of Education Title IX

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: