Category: Campus

The Weaponization of Title IX at Oregon Health and Science University

Post author By saveadmin
Post date March 27, 2020

My name is Buddy Ullman. I am a retired Professor of Biochemistry and Molecular Biology from The Oregon Health & Science University (OHSU) in Portland, Oregon. As a faculty member at OHSU, I headed a research program in molecular parasitology for which I was continuously funded (for 34 years) by the National Institutes of Health. I was also a major contributor to the medical education program for 29 years for which I was accorded 51 teaching awards and honors. At OHSU, I was widely perceived as a faculty leader because of my vocal advocacy for aggrieved students and faculty and for my oppositional views to some of the academic policies in the School of Medicine.

This brought me into occasional conflict with some of the Associate Deans, particularly those in the medical education program. Politically, I am a liberal democrat and an ardent supporter of Title IX. I also had the misfortune of being a Title IX respondent, and, per full disclosure, am an enthusiastic advocate for DeVos’s proposed new Title IX guidelines, although I have a few concerns that I conveyed to the Department of Education using the Federal eRulemaking Portal.

My Title IX Experience

My Title IX ordeal involved five investigations over three years and resulted in the destruction of my professional career and job termination. The details of these investigations are myriad, convoluted, and complex, and therefore, I only present the skeletal outline of the adversities that I faced. There is documentation for everything that I assert, much of which is or was in possession of the Office for Civil Rights, Seattle Branch, in the Department of Education (OCR Reference No. 10152256). The original purpose for these investigations was to deny me access to the educational programs of the university, which seems counterintuitive to Title IX’s purpose, but these multiple inquiries eventually morphed into a mechanism to destroy my very successful, externally funded research career and to fire me.

The seminal and initial investigation for which I was respondent was a sexual harassment complaint that was launched on May 16^th, 2014 by the Associate Dean of Undergraduate Medical Education, ostensibly on behalf of a first-year female medical student who had failed the medical school course that I directed and, therefore, faced a remediation examination and potential expulsion from the medical school program and who, like the Associate Dean, had ample motive to retaliate against me. The student had falsely claimed in an email to the Associate Dean written earlier on May 16^th, 2014 that I had kissed her on the forehead in my office, an expanded definition of sexual harassment to say the least, and that I had made a harassing and “pseudo-predatory” comment on a Facebook photo in which she was not pictured. The alleged kiss was a fabrication, and the Facebook comment, although warm and affectionate as many Facebook posts are, was neither lascivious nor of a sexual nature.

The student was named the complainant by a civil rights investigator in OHSU’s Affirmative Action and Equal Opportunity (AAEO) Office although she was not involved in the genesis of the AAEO complaint, i.e., this was a third-party endeavor. By the next business day, the Associate Dean’s administrative superior, the Senior Associate Dean of Education, had weighed in and expanded the scope of the investigation, and multiple emails in my possession substantiate collusion between the Dean’s and AAEO Offices at the inception of the investigation.

I first learned about the existence of the complaint on August 14^th, 2014, three months after the investigation had been initiated. I was not informed of the specifics of the allegations at that time (or throughout the investigation, see below). I met with the investigator for 90 minutes on September 5^th, 2014, the same date that the investigation was closed (without my knowledge). When I met with the investigator, I was, obviously, completely unprepared, and she harangued me with salacious questions and seethed with hostility. As an aside, the sexual harassment complaint was considered by the AAEO Office, not the Title IX Office, as there was no Title IX Office at OHSU in 2014.

Below I describe the salient features of this investigation:

Per the previous paragraph, the complaint was initiated by a third-party surrogate.
There was no formal or written complaint. I did request to view the formal complaint multiple times and was not told that there was no formal complaint.
The scope of the complaint shifted throughout the investigation.
I was not permitted to have any knowledge of the allegations against me. This precluded any possibility of a realistic defense. I only learned of the nature of the specific charges ten months after the case against me was closed.
Related to the previous point, not only did I not know the nature of the accusations, but the specific complaints weren’t even discussed in my presence.
I was not allowed to know the identities of the named complainant or the witnesses, e.g., the Associate Deans, because they wanted to make their (false) accusations under anonymity for understandable reasons and also because I would have immediately recognized the predatory and retaliatory nature of the Associate Deans’ involvement and the retaliatory intention of the student complainant’s allegations. I also only learned the names of the complainant(s) and the witnesses ten months after the case was concluded.
I was not given any opportunity to present evidence on my behalf, while the complainants were given four months to collect and submit evidence. The preponderance of evidence standard for substantiating any claim against me was, therefore, simplified since all the evidence considered was provided by the complainant side.
I was not offered an occasion to bring forth witnesses of which I would have had thousands. The complainant side had four witnesses: the two Associate Deans and the complainant’s two best friends/housemates, each of whom had come up with their own allegations, one preposterous, one untruthful.
Witness testimony was taken over the telephone, precluding any assessment of witness demeanor.
All exculpatory evidence collected by the AAEO investigator was withheld from me.
The presumed inculpatory evidence that was shown to me was did not involve wrongdoing and was, without exception, absurd.
The Closure Memo, effectively the investigative report, that summarized the investigator’s findings and ultimately informed the investigator’s conclusions was not afforded to me for analysis. I only became aware of the Closure Memo’s existence ten months after the case against me was concluded, and it was replete with falsehoods, fabrications, distortions, exaggerations, and mistakes and lacked context throughout. There was no opportunity afforded to rebut The Closure Memo.
I was not informed in a timely matter about any aspect of the investigation against me. Every step of the investigation took me by surprise.
I was muzzled throughout the proceedings (and presumably afterwards). This gag order (or orders) prevented me from recruiting witnesses, getting help within the institution, and organizing a defense.
I was continually threatened with job loss throughout the process. This was intimidating to say the least.
The outcome of the so-called “investigation” was, obviously, predetermined and not evidence-based.

I received a summary of the investigator’s findings, designated the Letter of Closure (different from the Closure Memo) on November 25, 2014. The Letter of Closure was farcical and suffered from all the failings of the Closure Memo (see point 12 above). The investigator, who fundamentally functioned as a prosecutor, concluded that I had engaged in sexual harassment of female medical students (apparently for the entire 29 years during which I taught). This was the first time, six months after the case against me had been instigated, that I had any inkling that my case was even about sexual harassment.

This revelation was flabbergasting since there had never been any sexual harassment, and categorically no behavior of a sexual nature on my part while a member of the OHSU for 32 years. The investigator also found that I had engaged in gender discrimination and inappropriate, unprofessional, and disrespectful behavior toward female medical students in order to ensure that I had been found in violation of almost every single institutional policy that supports Title IX including the institutional Code of Conduct, which I apparently violated multiple times with abandon. There was also no gender discrimination and no inappropriate, unprofessional, or disrespectful behavior toward female medical students, or for that matter toward anybody else.

The Dean of the School of Medicine, stated in his Letter of Caution to me, also dated November 25, 2014, that I had “violated OHSU’s Code of Conduct (Section G), the Equal Opportunity Policy (No. 03-05-030), and the Sexual Harassment Policy (No. 03-05-035) through unwelcome hugging, wrist-grabbing, as well as cheek and forehead kissing of female students.” There was no unwelcome hugging, wrist-grabbing, cheek kissing, or forehead kissing of female students, however, and these conclusions were all news to me because no unwelcome behaviors were ever alleged in my presence during the investigation. All the conclusions by the AAEO investigator and Dean were made-up. I was, of course, punished, and there was never any effort on the part of the institution to stop, interfere with, or modify any of my behavior, as outlined by institutional policies and federal statute.

The investigation was a sham, neither fair, impartial, nor reliable, and it was most certainly not well-intentioned. Not only had the investigator functioned as a prosecutor throughout the inquiry, but she also served the roles of detective, plaintiff (it was she who made the sexual harassment accusation), judge, jury, and executioner. Because I was innocent of all “transgressions” (there is not one iota of truth to any of the investigator’s or Dean’s conclusions), I believe that the administration, acting maliciously, basically hijacked Title IX in order to retaliate against me for my activities and views that the administration didn’t like. The assortment of shortcomings in the AAEO investigation that I identified above was not an accident. Title IX was employed as a weapon, a strategic one that the Dean’s Office later employed to clobber other faculty.

Devos’ new proposed guidelines for Title IX enforcement on college/university campuses address every single one of the investigative shortcomings in my case, and, as I mentioned in the first paragraph, I support the DeVos regulations with enthusiasm, although with a few caveats. The new regulations do not, however, address the intrinsic competence and integrity of the investigators nor the ability of “bad actors” to endeavor to manipulate the outcome of Title IX proceedings.

My subsequent request for an appeal was denied, but I was granted an internal grievance procedure that was distorted almost beyond recognition and stage-managed by OHSU’s general counsel, a person who also had a prominent role in the original AAEO investigation described above. The grievance panel concluded that due process considerations had not been violated because I could have presented a defense after my case was closed (to whom?!?!) and that I didn’t need to have been informed about the specifics of the allegations because I should have been able to figure them out by the line of questioning, even though the alleged misconduct never occurred!!

I then appealed to the Office for Civil Rights (OCR), Seattle branch. The OCR took the case, investigated OHSU’s AAEO office, and apparently compelled substantial changes (the AAEO Director was subsequently fired), but concluded that OHSU had adhered sufficiently to the Obama-era Title IX guidelines and thus, took no further action on my OCR complaint. The OCR decision was terribly disappointing and left me exposed to retribution, which was forthcoming.

Once the OCR had completed its review of OHSU’s AAEO Office and Title IX compliance, the administration, blasting through any OCR whistleblower protections, retaliated against me repeatedly. The administration filed at least five more frivolous charges against me, most of which were Title IX related but on which the Title IX Office punted (this is called deliberate indifference), and launched two new sham investigations, the fourth and fifth overall, for which the outcomes were, predictably, preordained. The first of these latter two investigations concluded that I violated the institutional Code of Conduct in multiple ways because, according to the investigator, I used the word “Yuck” in an email to a colleague/friend, while the second resolved that I had engaged in retaliation, which I most certainly did not.

The administration continued to retaliate me in other ways as well. I was banished from the medical school classroom on three separate occasions, thereby denying me access to the institution’s educational activities, made the subject of a nasty, disparaging email sent by the aforementioned Associate Deans to the entire medical student body in response to a satirical vignette that I was asked to give at the Medical Student Follies, and then placed on administrative leave, exiled from campus although I was no safety threat to anybody, and had my email disabled and my access to my work computer switched off. These actions effectively terminated my 47-year career in biomedical research.

Furthermore, when the Dean of the School of Medicine and the Vice President of Human Resources placed me on administrative leave and deported me from campus, not only did they not tell me why (I asked) but they told me that they themselves didn’t even know all the reasons why!! I was fired several months later, while on administrative leave, after the last (and fifth) investigation against me concluded. I am now retired and hope, through my experience, that I can bring some wisdom to the Title IX guideline debate and to other Title IX victims.

I refrained from a lawsuit for a myriad of reasons. First, I am not litigious and don’t crave money. Second, I am 69 years old and was close to retirement anyway and didn’t want to be at the university any longer because of the way I was (mis)treated. Third, I signed a termination agreement, clearly under duress, that would provide me with a salary equivalent and insurance for another nine months if I promised not to sue them. Fourth, I already had had two expensive lawyers: the first whom I hired for the first investigation was unhelpful and wanted me to roll over and play dead; and the second whom I consulted during the fifth investigation and who really gave appropriate advice and thought it would be best for me to retire and not go through yet another investigation. Fifth, I am a pensioner on a fixed income, and I would be taking on a ~$3,000,000,000 corrupt organization with effectively unlimited resources. Sixth, OHSU would have fought me tooth and nail since the entire administration all the way up to the top of the university was locked in on me and would have been implicated in wrongdoing. And finally, I was exhausted. After three years of continuous harassment and discrimination by OHSU administrators, no way to achieve justice internally, and concerning blood pressure measurements, continuing as a faculty member at OHSU was untenable.

I am very happy to be gone and healthy again.

Campus

Overcoming a Climate of Fear on Campus: SAVE Statement on the Coronavirus Threat

Post author By saveadmin
Post date March 25, 2020

On November 17, the first case of coronavirus was reported in Wuhan, China. The virus began to spread in China and then internationally. A mere four months later, most college campuses in the United States are physically closed. Many states have shut down non-essential businesses. Americans are fearful for their own health, the well-being of their family members, and the state of the economy.

Through all of this, SAVE continues to push forward to end campus “Kangaroo Courts” and to restore fairness and due process. We cannot dissipate the momentum that we have all worked so hard to achieve.

The current untenable situation can be traced back to 2011 when the Department of Education issued its unlawful “Dear Colleague Letter” on campus violence. Campus activists used the new policy to marginalize the criminal justice system and to impose a new regimen of “Peoples’ Justice” that lacked the rudiments of fairness, both to complainants and the accused.

As a result, female students, caught up in a growing moral panic, feared that they would become victims of sexual assault. Male students became fearful of being falsely accused and expelled. Faculty became fearful that a stray comment would be misconstrued as “sexual harassment,” curtailing their career opportunities. College attorneys worried about the expanding climate of litigiousness. And administrators feared loss of federal funding.

Seeking to stop this cycle of fear, the Department of Education rescinded the Dear Colleague Letter and issued proposed new regulations, which are expected to be finalized soon. In response, SAVE is developing a detailed plan to support the implementation of new regulations, including media, legislative, outreach, and regulatory compliance efforts.

SAVE is confident that we will succeed in overcoming fear, both on college campuses and in ending the coronavirus threat. Our best wishes are with you during these uncertain times. We are grateful for your continuing support.

Sincerely,

E. Everett Bartlett, PhD

President

SAVE: Stop Abusive and Violent Environments

P.O. Box 1221

Rockville, MD 20849

T: 301-801-0608

www.saveservices.org

Campus Sexual Assault Trauma Informed

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

Post author By saveadmin
Post date March 24, 2020

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

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

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

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

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

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

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

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

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

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

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

Citations:

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

Campus Sexual Assault Title IX

OCR Is About to Rock Our Worlds

Post author By saveadmin
Post date March 17, 2020

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

What Will These Changes Mean for Higher Education?

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

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

What Do We Do Now?

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

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

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

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

What Do We Do When the Regulations Are Published?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Campus Sexual Assault

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

Post author By saveadmin
Post date March 17, 2020

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

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

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

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

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

(d) The right to present a defense.

(e) The right to call witnesses.

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

(g) The right to appeal.

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

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

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

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

Campus Department of Education Scholarships Title IX Equity Project

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

Post author By saveadmin
Post date March 16, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

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

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

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

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

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

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

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

Citations:

Campus Sexual Assault

SAVE Testimony in Opposition to Connecticut Bill SB 19

Post author By saveadmin
Post date February 18, 2020

Good afternoon, my name is Susan Stewart and I am the Director, State Legislative Initiative for SAVE: Stop Abusive and Violent Environments. SAVE is a national organization working at both the federal and state level for fairness and due process on college campuses. I am testifying in opposition to SB 19.

Since the 2011 Dear Colleague Letter was issued by the federal Department of Education, SAVE has found there has been an explosion of both complaints by identified victims and lawsuits by accused students. For example, one University of Alabama student named Shannon said, “The assault was bad, but the way my school has treated me has created more trauma than the original assault did.” In the past nine years, over 550 lawsuits have been filed against universities for their alleged mishandling of these cases.

SAVE created a list of the Top 25 Worst Colleges in the Nation for Campus Due Process. Shockingly, two universities in Connecticut made our list: Quinnipiac University and Yale University.

In Doe v Quinnipiac, Doe claimed Quinnipiac opened a complaint against him “on behalf” of a student who herself did not file a complaint, destroyed evidence and subjected him to a 7-hour hearing where they banned exculpatory witnesses.

In Montague v Yale: Jack Montague claimed Yale violated its own procedures, committed fraud when administrators tried to convince the woman to file a formal complaint, and allowed the administrator who had tried to convince the woman, to chair the hearing board.

In fact, Connecticut may be the worst state in the nation for campus fairness. There are also these other compelling cases: the Nikki Yovino Sacred Heart University case, the case against Yale by Saif Kahn who is now suing Yale for $110 million and most recently two damning judicial decisions against UConn for violating students’ constitutional rights. District Judge Michael Shea wrote, “UConn’s procedures for investigating alleged misconduct and imposing discipline are so one-sided that the accused was denied an opportunity to present a meaningful defense.”

I oppose SB 19 for the following reasons: First, SB 19 includes an immunity clause for drinking and drug use which states “a student …who reports or discloses the alleged assault…shall not be subject to disciplinary actions for violation of a policy of the institution… if the report or disclosure was made in good faith..” This wording encourages false allegations. What happens when the institution determines that the report was not made in good faith?

Second, SB 19 establishes a Council on Sexual Misconduct Climate Survey, which includes 16 members and not one member represents students who have been accused of sexual misconduct. It calls for three representatives of victims of sexual assault, and not one representative of accused students. Why not?

Third, SB 19 requires the development of a sexual misconduct climate survey. Climate surveys are known to be expensive, difficult to administer, yield unreliable statistics and have fundamental problems. They do not lead to safer campuses. For example, in 2017 the results of one climate survey showed a shocking 41% of undergraduate women reported experiencing sexual assault since enrolling at the university. If that were true, what parents in their right minds would send their daughter to that school? Climate surveys are used to argue for policy change that potentially impedes on students’ due process rights.

For these reasons, I oppose SB 19. Connecticut lawmakers continue to propose or pass legislation that encourages false allegations or ultimately impedes students’ due process rights. Universities follow these laws resulting in mistreatment of both alleged victims and accused students with the ultimate outcome of more lawsuits against the universities!

SB 19 would trample on fairness, and perpetuate campus Kangaroo Courts. It is not the answer to a serious issue plaguing Connecticut’s higher educational system.

Thank you for your time and attention.

Campus Sexual Assault

Hartford Sex Hearing Marred by Actions of Lawmakers and Staffers

Post author By saveadmin
Post date February 18, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Recalling Campus Kangaroo Courts,

Hartford Sex Hearing Marred by Actions of Lawmakers and Staffers

WASHINGTON / February 18, 2020 – A February 13 hearing designed to elicit public comment on a bill regarding campus sexual assault was marred by unprofessional behavior exhibited by several lawmakers and staffers. Convened by the Higher Education and Employment Advancement Committee, the hearing aimed to obtain public input into the proposed Act Concerning Sexual Misconduct on College Campuses, SB 19 (1).

Several representatives of Connecticut colleges testified in opposition to the bill, saying it duplicated existing university policies and removed their flexibility to address unique circumstances (2).

The SAVE witness highlighted recent judicial decisions against Yale, Quinnipiac, Sacred Heart, and the University of Connecticut, suggesting that “Connecticut may be the worst state in the nation for campus fairness.” SAVE noted the opinion of federal Judge Michael Shea who wrote, “UConn’s procedures for investigating alleged misconduct and imposing discipline are so one-sided that the accused was denied an opportunity to present a meaningful defense.”

The SAVE representative acknowledged that sexual misconduct is a major problem on Connecticut campuses but concluded, “SB 19 would trample on fairness, and perpetuate campus Kangaroo Courts. It is not the answer to a serious issue plaguing Connecticut’s higher educational system.”

Although she was one of the first to sign up to testify, when she was finally allowed to deliver her testimony, only 30% of the Committee members were present. During the allotted 3-minute period, the timer prematurely sounded at roughly two minutes, distracting the presentation.

Upon completion of the testimony, one Committee member wondered out loud if the SAVE presenter represented a “misogynistic” group, a comment that was implausible on the surface since the SAVE witness was female.

In contrast, seeking a constructive bi-partisan solution to address campus sexual assault, a third Committee member posed thoughtful questions how Connecticut lawmakers can “get this right” as they propose legislation around this issue.

SAVE’s full testimony is available online (3). A video of the testimony is also available online, beginning at 2:31:10.

SAVE urges Connecticut legislators to assure future hearings are conducted in a professional and impartial manner, and to work so both identified victims and accused students are treated in a respectful and professional manner in campus proceedings.

Citations:

SAVE – Stop Abusive and Violent Environments – is leading the national policy movement for campus fairness, due process, and the presumption of innocence.

Campus DED Sexual Assault Directive Due Process Sexual Assault

PR: Urgent Need for Lawmakers to Stop Campus ‘Kangaroo Courts’

Post author By saveadmin
Post date February 3, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Urgent Need for Lawmakers to Stop Campus ‘Kangaroo Courts’

WASHINGTON / February 3, 2020 – As evidence continues to mount of inept campus administrators and biased adjudications, SAVE urges lawmakers to take prompt steps to reform college sex tribunals, sometimes referred to derisively as “kangaroo courts.”

The federal Department of Education issued in 2011 a policy directing campus disciplinary committees to handle all allegations of sexual assault, including felony-level incidents (1). But problems with the new approach became immediately obvious, as the number of complaints to the federal Office for Civil Rights soon increased by more than five-fold (2).

Three recent incidents again illustrate the urgent need for reform:

On January 23, it was reported that the University of Idaho agreed to a $160,000 payment to Mairin Jameson. When Jameson had been sexually harassed and assaulted by a member of the school’s football team, school officials told her the school had no authority to act (3).

Two days later, federal Judge Michael Shea ordered the University of Connecticut to reinstate a male student who had been subjected to a biased campus hearing. The judge found the campus disciplinary committee denied the male student “the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe’s witnesses on whose statements the hearing officers chose to rely.” (4)

Then on January 26, Columbia University in New York was in the news when campus adjudicators failed to consider as evidence a 30-minute audio recording suggesting the female was the perpetrator, not the victim, of a sexual assault. Former student Ben Feibleman is now suing Columbia U. for $25 million (5).

The Dept. of Education is expected to issue a new sexual assault regulation in the near future. The Independent Women’s Forum recently announced its support of the new policy, saying, “Campuses have a legal and moral obligation to investigate and address claims of sexual harassment and assault; but they also have an obligation to investigate claims objectively, without presuming the guilt of the accused, and with respect for due process.” (6)

This week, SAVE is launching a month-long campaign designed to raise awareness among lawmakers, campus administrators, and the public about the serious injustices confronting college students. The campaign hashtag is #StopKangarooCourts.

Citations:

SAVE – Stop Abusive and Violent Environments — is leading the national policy movement to restore due process, stop false allegations, and protect all victims.

Campus Due Process Sexual Assault

End to the Campus Kangaroo: Department of Education Needs to Promptly Implement New Title IX Regulation

Post author By saveadmin
Post date January 12, 2020

Constitutionally rooted due process is one of the foundations of American society, because it protects individuals from government over-reach and from false allegations.

In 1975, Judge Henry Friendly identified key due process procedures.[1]

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and the reasons for its decision.

In 2011 the Office for Civil Rights (OCR) pre-emptively issued a Dear Colleague Letter on campus sexual assault.[2] The document was unlawful in the sense that it violated the procedural requirements of the Administrative Procedure Act, and it severely weakened constitutionally-rooted due process protections for the accused.

On August 4, 2011, SAVE sent a letter to the OCR expressing concern over the new requirement for use of the “preponderance of evidence” standard, and calling for the Dear Colleague Letter to be rescinded.[3] The OCR did not respond to the substance of the request or even acknowledge receipt of the correspondence.

It wasn’t until six years later that SAVE’s request was fulfilled. 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.[4]

Last year SAVE published a Special Report, Appellate Court Decisions for Allegations of Campus Sexual Misconduct, 2013-2018.[5] The report analyzes the 14 appellate cases decided in favor of the accused student involving campus sexual assault. These were the most common due process violations identified in the Judicial Findings, in descending order:

Insufficient hearing process
Lack of cross-examination/Inadequate credibility assessment
Insufficient notice
Inadequate investigation
Conflicting roles of college officials
Improper use or exclusion of witness testimony
Potential sex bias
Misuse of affirmative consent policy

These eight violations closely track the due process procedures that Judge Friendly identified 45 years before.

Sexual assault complainants are unhappy with the current state of affairs, as well. SAVE has identified examples of persons who said their mistreatment at the hands of inept college officials was more traumatic than the original sexual assault. A recent CBS News documentary highlighted victims who complained that the current system is not working for them.[6]

In short, the current campus “Kangaroo Courts” represent a failed response to the problem of campus sexual assault.

On November 29, 2018 the Department of Education released its proposed Title IX regulations.[7] Among other things, the proposed regulation will restore a series of due process procedures on college campuses:[8]

A presumption of innocence for the respondent throughout the grievance process;
The school must objectively evaluate all relevant evidence including inculpatory and exculpatory evidence;
All Title IX Coordinators, investigators and decision-makers must not have conflicts of interest or bias for or against complainants or respondents;
Training materials for Title IX Coordinators, investigators and decision-makers must foster impartial determinations without relying on sex stereotypes;
A respondent cannot face discipline without due process protections;
Ensure the burden of proof and burden of gathering evidence rest on the school, not on the parties;
Provide equal opportunity for both parties to present witnesses and evidence;
Not restrict the ability of either party to discuss the allegations or gather relevant evidence (e.g., no “gag orders”);
Provide the parties with the same opportunity to be accompanied at all phases of the grievance process by an advisor of the party’s choice (who may be an attorney);
Give written notice of any interview, meeting, or hearing at which a party is invited or expected to participate;
Provide equal access to review all the evidence that the school investigator has collected, including the investigative report, giving each party equal opportunity to respond to that evidence before a determination is made;
For colleges and universities, a final determination must be made at a live hearing, and cross-examination must be allowed (with rape shield protections against asking about a complainant’s sexual history) and must be conducted by each party’s advisor (i.e., no personal confrontation allowed).
After investigation, a written determination must be sent to both parties explaining for each allegation whether the respondent is responsible or not responsible including the facts and evidence on which the conclusion is based. The determination must be made by a decisionmaker who is not the same person as the Title IX Coordinator or investigator
Where a finding of responsibility is made against the respondent, the written determination must describe what remedies the school will provide to the survivor to restore or preserve equal access to the school’s education program or activity, and any sanctions imposed on the respondent.

Nine years after the Department of Education issued its Dear Colleague Letter, the debate has been resolved. Neither identified victims nor accused students are being well served by the new campus regime. The current system is broken. SAVE urges the Office of Management and Budget to publish the new Title IX regulations promptly, and calls upon the Department of Education to vigorously enforce the new requirements.

[1] https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5317&context=penn_law_review

[2] http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html

[3] http://www.saveservices.org/wp-content/uploads/OCRLetter.pdf

[4] https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf

[5] http://www.saveservices.org/wp-content/uploads/Appellate-Court-Cases-Report.pdf

[6] https://www.cbsnews.com/news/title-ix-sexual-misconduct-on-campus-cbsn-documentary/

[7] https://www.regulations.gov/document?D=ED-2018-OCR-0064-0001

[8] https://www2.ed.gov/about/offices/list/ocr/docs/background-summary-proposed-ttle-ix-regulation.pdf