Category: Department of Education

Judicial Bias Rewarded?

Post author By Edward Bartlett
Post date November 4, 2023

Judicial Bias Rewarded?

Philip A. Byler

November 4, 2023

In this disturbing period of our country’s history, the last thing we need are judges who are promoted to a U.S. Court of Appeals judgeship for having greatly tilted the scales of justice in a case in favor of a big institutional litigant against an individual seeking to vindicate due process and federal non-discrimination rights. But that is precisely what appears to be happening with respect to Northern District of Indiana U.S. Magistrate Judge Joshua Kolar and Plaintiff John Doe (“John Doe”) in Doe v. Purdue.

Significance of Judge (now Justice) Barrett’s Opinion in Doe v. Purdue.

On June 28, 2019, the Seventh Circuit, in an opinion written by then Judge (now Justice) Amy Coney Barrett, upheld an action brought by John Doe claiming due process violations and Title IX discrimination by Purdue when it suspended John Doe for alleged sexual misconduct with an ex-girlfriend. Doe v. Purdue, 928 F.3d 652 (7^th Cir. 2019). The national importance of the due process rulings of then Judge (now Justice) Barrett in Doe v. Purdue, 928 F.3d at 661-664, 667, cannot be understated, holding: (i) that John Doe had pleaded a stigma-plus liberty interest; (ii) that Purdue’s disciplinary process was woefully deficient and did not provide due process, citing among other things not giving John Doe the investigation report and not holding a real hearing (“Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension”); and (iii) that the District Court on remand was to consider the expungement of the disciplinary file (“we instruct the court to address the issue of expungement on remand”).

When then Education Secretary DeVos announced on May 6, 2020, what would be the current due process Title IX regulations, she pointed to three cases that were particularly instructive, one of which was the Seventh Circuit’s decision in Doe v. Purdue. “Secretary DeVos Announces New Title IX Regulation,” https://www.youtube.com/watch?v=hTb3yfMNGuA; U.S. Department of Education Press Release, “Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students,” May 6, 2020; 34 C.F.R. 106.45. Secretary DeVos noted that it was a three-woman panel with then Circuit Judge Amy Coney Barrett as the author of the opinion. “Secretary DeVos Announces New Title IX Regulation” https://www.youtube.com/watch?v=hTb3yfMNGuA.

When Judge Barrett was nominated for the U.S. Supreme Court, her Doe v. Purdue opinion was a subject of attention. Defending Judge Barrett’s opinion in the Wall Street Journal was K.C. Johnson, “Sex, Due Process and Amy Coney Barrett,” Wall Street Journal, Oct. 1, 2020. Purdue responded with its defiant defense, “Purdue Responds on Judge Amy Coney Barrett’s Title IX Opinion,” Wall Street Journal, Oct. 12, 2020. Judge Barrett’s opinion has been a thorn in Purdue’s side, and Purdue has not wanted to live in accordance with it.

Magistrate Judge Kolar’s Biased Treatment of Doe v. Purdue On Remand and the Circumstances of John Doe’s Seventh Circuit Stay Motion.

So, here it is November 2023, 4½ years after Doe v. Purdue was issued, and where are we? In that time, we have been before U.S. Magistrate Judge Joshua Kolar, who has been acting as the judge for all purposes and who in July 2023 was finally subjected to a motion to recuse for pervasive bias by John Doe because Magistrate Judge Kolar “has made common cause with Purdue counsel to frustrate John Doe’s effort to vindicate his due process and Title IX rights and to undermine and eviscerate [current U.S. Supreme Court] Justice Barrett’s opinion in this case” (Byler Decl., Dist. Ct. DE 257-1 p. 2). Strong language, yes, but the truth.

The latest development is that John Doe has moved in the U.S. Court of Appeals for the Seventh Circuit to stay proceedings in the District Court, invoking the interests of judicial integrity and safeguarding the fairness of a trial in this case, given the extraordinary circumstances in the case. Magistrate Judge Kolar was subject to a motion to recuse for pervasive bias for Purdue made by John Doe on July 9, 2023, and is subject to a still pending appeal to the Seventh Circuit filed on September 7, 2023, of Magistrate Judge Kolar’s denial of recusal for bias. Magistrate Judge Kolar, with four years’ experience as a Magistrate Judge and none as an Article III District Judge, was nominated on July 27, 2023, to be a judge on the Seventh Circuit by the Biden Administration. When Magistrate Judge Kolar denied the recusal for bias motion on August 14, 2023, he did not disclose the fact that he was nominated to be a judge on the Seventh Circuit. When Magistrate Judge Kolar appeared on September 6, 2023, before a Senate Committee, he did not disclose that he had been subject to a motion to recuse for pervasive bias favoring Purdue.

John Doe and his counsel first learned of Magistrate Judge Kolar’s nomination to be a judge on this Court when the Northern District of Indiana federal court announced in a press release on October 11, 2023, that there would be an anticipated opening for a Magistrate Judge position given Magistrate Judge Kolar’s nomination to be a judge on this Court; and (vi) Magistrate Judge Kolar continues on insisting that he be the trial judge in this case and has scheduled a trial date.

John Doe’s Stay Motion to the Seventh Circuit

The stay motion to the Seventh Circuit submitted three key documents concerning Magistrate Judge Kolar’s bias.

Exhibit A to the stay motion was the 33-page Declaration of John Doe’s lawyer [Dist.Ct. DE 257-1] that was submitted in support of the motion to recuse Magistrate Judge Kolar for pervasive bias favoring Purdue and that details the bias case against Magistrate Judge Kolar. Importantly, the Byler Declaration states [DE 257-1, pp. 6-7]:

Plaintiff is not relying upon the mere fact of adverse rulings but upon the manifestations of “judicial predispositions that go beyond what is normal and acceptable,” and show a case of “pervasive bias.” Liteky v. United States, 510 U.S. at 551. In particular, Magistrate Judge Kolar’s July 2, 2021, August 11, 2022 and February 14, 2023 opinions mishandled the law in a way an impartial judge would not do, misstate the factual record in a way an impartial judge would not do, and do so all to Purdue’s benefit, establishing Magistrate Judge Kolar won’t be impartial due to pervasive bias.

In the July 2, 2021 opinion, Magistrate Judge Kolar found spoliation over 11 Snapchat personal photographs and short videos that were made well after John Doe’s suspension at Purdue and that were inadvertently deleted when John Doe cleared memory on his cell phone. Magistrate Judge Kolar acknowledged the Snapchat posts not to be prejudicial (“there is nothing in the record to indicate whether the files were in fact adverse to Plaintiff’s case” (DE168, p. 29)), but Magistrate Judge Kolar still speculated that “it was not inconceivable” the 11 Snapchat personal posts might be potentially relevant to John Doe’s desired Navy career — without giving an explanation how it was conceivable, much less actually relevant (DE168, p. 16), which a glance at the Snapchat listing showed it wasn’t. Magistrate Judge Kolar nevertheless lambasted John Doe for the deletion, ordered payment of Purdue’s attorney fees (which were claimed to be $30,000 and which would wrongly burden John Doe’s effort to vindicate his due process and Title IX rights), and outlined jury instructions regarding what were irrelevant documents [Dist Ct. DE168], even though adverse inference instructions require intentional destruction and relevance. Crabtree v. Nat’l Steel Corp., 261 F.3d at 721; Keller v. United States, 58 F.3d 1194 (7th Cir.1995). What’s worse, the spoliation order was made in the background of John Doe’s full compliance with Purdue’s scorched earth discovery.

In the August 11, 2022 opinion, the Magistrate Judge Kolar essentially reversed Judge (now Justice) Barrett’s opinion on due process. Before the Seventh Circuit in 2019, Purdue had argued that Plaintiff John Doe had engaged in self-defamation by authorizing the release of the university disciplinary files to the Navy. That argument then was premised on the NROTC only learning of John’s disciplinary case because of John’s authorization of disclosure to the Navy ROTC. Judge Barrett stated in her opinion Purdue’s position: “The university maintains that it has not and will not divulge John’s disciplinary record without his permission. The Navy knows about it only because John signed a form authorizing the disclosure after the investigation began.” 928 F.3d at 661. Purdue cited Olivieri v. Rodriguez, 122 F.3d 406 (7th Cir.1997), where a voluntary disclosure was the reason for an employment discharge in a situation that the Seventh Circuit considered speculative whether the disclosure would ever be called for. Judge Barrett, however, rejected Purdue’s argument (928 F.3d at 652): “John’s case is different. He does not claim simply that he might someday have to self-publish the guilty finding to future employers. Instead, John says that he had an obligation to authorize Purdue to disclose the proceedings to the Navy.”

In fact, the discovery record, which only made John Doe’s case stronger, made Purdue’s argument and Magistrate Judge Kolar’s ruling about self-defamation wholly untenable. Indisputably: (i) the NROTC knew about the disciplinary proceeding well before the May 24, 2016 authorization because on April 4, 2016, Jane Doe first went to the NROTC to make her accusations; (ii) Purdue first learned of Jane Doe’s accusations from the NROTC; and (iii) according to the NROTC Commander, the NROTC was looking to the Purdue investigation from the start. According to Plaintiff John Doe, the Navy wanted “in the loop” (DE183-5, tr 21-22) and he was in no position to refuse the authorization” (DE208-1 ¶ 7). Magistrate Judge Kolar’s derision, as speculative, military realities framing John Doe’s obligation to disclose only underscores how Magistrate Judge Kolar was willing to kowtow to Purdue in essentially reversing Judge (now Justice) Barrett’s opinion.

Additionally, the August 14, 2022 opinion with respect to Magistrate Judge Kolar’s proof of falsity requirement to establish a stigma plus liberty interest, which the Seventh Circuit has never adopted, gave a purported review of triable issues that did not reflect the factual discovery record (which made John Doe’s case stronger) but that contributed significantly to the August 11 Opinion being a propaganda piece for Purdue. Magistrate Judge Kolar, in a partisan slip, repeated what were the allegations of Jane Doe when in fact she never testified, which was in distinct contrast to John Doe who repeatedly testified. Magistrate Judge Kolar referred to what were 133 pages of John Doe-Jane Doe texts in accordance with Purdue’s jaundiced misreading as admissions of guilt (which they weren’t) based on Purdue’s misleading excerpting without discussing John Doe’s testimony on the texts that he alone had provided. There was also no good impartial reason for Magistrate Judge Kolar to ignore that: (i) John Doe was not provided an opportunity to review the investigation report during the disciplinary case, (ii) the investigation report included only short portions of 7 pages of the 133 pages of texts (the selected portions did not include texts showing an ongoing relationship after Jane Doe’s claims), and (iii) Vice President Rollock and Dean Sermersheim did not know that there were 133 pages of texts submitted by John Doe to the investigators. Magistrate Judge Kolar further did not address the fact that the three-person panel of the Advisory Committee on Equity and Dean Sermersheim, never met and never heard any direct testimony from Jane Doe and did not have the opportunity to ask any questions of Jane Doe.

In the February 14, 2023 opinion, Magistrate Judge Kolar ignored the Navy Regulations for Officer Development (“ROD”) which clearly substantiated that John Doe could not properly refuse authorization of disclosing the Purdue disciplinary documents to the Navy. The Navy ROD compelled giving authorization, would make John subject to sanction upon refusing authorization, and required disclosure upon re-application due to a permanent federal record (DE208-3) – which even the Magistrate Judge Kolar’s August 11 opinion indicated would make summary judgment inappropriate (DE206, pp. 16-17) but which Magistrate Judge Kolar avoided on reconsideration, so much lacking in impartiality Magistrate Judge Kolar had become. Instead, Magistrate Judge Kolar essentially adopted Purdue’s dismissal of the Navy ROD as “a set of internal Navy rules, not law” and Purdue’s denial that the Navy ROD had the force of law to compel executing the authorization (DE221, p. 12). That, however, leads to the absurd, erroneous result that a Navy ROTC midshipman who acts per the requests of his Navy superiors and the obligations reflected in the Navy ROD has no due process rights. Purdue’s position that whether Purdue’s disciplinary process complied with Fourteenth Amendment due process is “immaterial” (DE213, p. 12) and the Magistrate Judge Kolar ’s effective adoption of that position reflects how much at odds Purdue and Magistrate Judge Kolar are with Justice Barrett’s Doe v. Purdue opinion.

Exhibit B to the stay motion was Magistrate Judge Kolar’s opinion denying the recusal for bias motion without disclosing the fact that he was nominated to the Seventh Circuit Court. [Dist. Ct. DE 261.] Magistrate Judge Kolar’s opinion avoided the actual reasons establishing the pervasive bias in this case presented and certified in the Byler Declaration [Dist. Ct. DE 257-1], and instead gave rationalizations and inapposite general propositions to justify his functioning as a biased trial judge in an important case. Magistrate Judge Kolar’s failure to disclose avoided the nomination to the Seventh Circuit being identified as the extra-judicial source of bias favoring Purdue documented in the Byler Declaration.

Exhibit C to the stay motion was John Doe’s Notice of Appeal [Dist. Ct. DE 267] that from pages 1 to 5 invoked the Seventh Circuit case law establishing the jurisdiction of the Seventh Court for the appeal of what is often called a collateral order and from pages 7 to 38 dissected Magistrate Judge Kolar’s opinion denying the recusal for bias and demonstrates that Magistrate Judge Kolar yet again avoided the actual reasons establishing the pervasive bias in this case presented in the Byler Declaration and has no real answers to the bias case against him.

Chronology of Events

The chronology of pertinent events helps show Magistrate Judge Kolar’s bias in Doe v. Purdue and his nomination to the Seventh Circuit:

July 9, 2023: John Doe moves to recuse Magistrate Judge Kolar for bias, submitting Declarations by John Doe and his lawyer. [Dist. Ct. DE 257, 257-1, 257-2.]

July 19, 2023: Purdue submitted a short Response to the recusal for bias motion that did not take on the facts presented and analysis in the Byler Declaration. [Dist. Ct. DE 258.]

July 25, 2023: John Doe submitted a Reply in further support of the motion to recuse Magistrate Judge Kolar for bias, replying to the few arguments of Purdue. [Dist. Ct, DE 260.]

July 27, 2023: The White House Briefing Room announces in a White House Statement and Release, “President Biden Announces Thirty-Sixth Round of Judicial Nominees” (July 27, 2023), that Magistrate Judge Kolar is nominated to the Seventh Circuit.

August 14, 2023: Magistrate Judge Kolar issues an opinion denying John Doe’s motion to recuse Magistrate Judge Kolar for bias. In that opinion, Magistrate Judge Kolar does not disclose that he has been nominated to be a judge on the Seventh Circuit. [Dist. Ct. DE 261] Magistrate Judge Kolar sets a trial date of November 28, 2023. (Dist. Ct. DE 262.]

September 6, 2023: Magistrate Judge Kolar appears before a Senate Judiciary Committee and does not disclose he had been subject to a motion to recuse for bias favoring Purdue in a case he had been overseeing for four years. YouTube: Circuit Court Judge Nominees Face Senate Judiciary Committee – YouTube.

September 7, 2023: John Doe files a Notice of Appeal of Magistrate Judge Kolar’s opinion denying John Doe’s motion to recuse Magistrate Judge Kolar for bias. [Dist. Ct. DE 267.]

September 11, 2023: John Doe’s appeal of Magistrate Judge Kolar’s denial of the motion to recuse for bias is assigned Seventh Circuit Court of Appeals Case Number 23-2764.

September 13, 2023: Magistrate Judge Kolar issues an order requesting the parties to submit status reports whether the Court retains jurisdiction over the case in light of John Doe’s Notice of Appeal. [Dist. Ct. DE 270.] This Court issues an Order requesting John Doe to submit a “Jurisdictional Memorandum” by September 26, 2023.

September 21, 2023: Purdue files a report in the District Court taking the positions that Magistrate Judge Kolar should await whether the Seventh Circuit accepts jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764 [Dist Ct. DE 271] and that Magistrate Judge Kolar should proceed with pretrial motions anyway based on inapposite interlocutory cases (not collateral order cases).

September 26, 2023: John Doe files in the Seventh Circuit the requested “Jurisdictional Memorandum” showing this Court has jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764. John Doe also files in the District Court the requested report showing that Magistrate Judge Kolar does not have jurisdiction of the case if the Seventh Circuit has jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764, but if the Seventh Circuit has jurisdiction, Magistrate Judge Kolar should not take any action as urged by Purdue, which would have Magistrate Judge Kolar proceed to decide pretrial issues critical to the fairness of a trial, particularly the motion in limime, while the Seventh Circuit is deciding whether Magistrate Judge Kolar has demonstrated bias and a lack of impartiality such that Magistrate Judge Kolar should be recused from deciding pretrial and overseeing the trial. [Dist. Ct. DE 272.]

October 11, 2023: John Doe and his counsel first learn of Magistrate Judge Kolar’s nomination to be a judge on the Seventh Circuit when the Northern District of Indiana federal court announced in a press release on October 11, 2023, that there would be an anticipated opening for a Magistrate Judge position given Magistrate Judge Kolar’s nomination to be a judge on the Seventh Circuit.

October 27, 2023: Magistrate Judge Kolar holds a status conference during which he announces that the trial set to begin November 28, 2023, is still on subject to whether the Seventh Circuit has jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764. [Dist. Ct. DE 277.] During the teleconference, Magistrate Judge Kolar again failed to address his nomination to be a Judge to the Seventh Circuit, even though counsel for John Doe in a pre-teleconference email inquired what the subjects of the teleconference would be given Magistrate Juge Kolar’s highly relevant nomination.

Magistrate Judge Kolar’s Bias and Nomination to the Seventh Circuit

Magistrate Judge Kolar failed to disclose his own nomination to be a judge on the Seventh Circuit when denying John Doe’s motion to recuse for bias favoring Purdue. Magistrate Judge Kolar’s nomination to be a judge to the Seventh Circuit, with four years’ experience as a Magistrate Judge and none as an Article III District Judge, has more than just the appearance of being the extra-judicial source of bias favoring Purdue; applying res ipsa loquitur, the nomination establishes the extra-judicial source of bias favoring Purdue.

Phil Byler was the lawyer for Plaintiff John Doe in Doe v. Purdue. Mr. Byler is a 1976 graduate of the Harvard Law School, who then clerked for two years to the Hon. John W. Peck of the U.S. Court of Appeals for the Sixth Circuit before entering the private practice of law. Mr. Byler briefed and orally argued: Immuno A.G. v. Dr. Jan Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (Kaye, J.), cert denied, 500 U.S. 954 (1991); Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016) (Leval, J.); Doe v. Purdue, 928 F.3d 652 (7th Cir. 2019) (Barrett, J.); Doe v. MIT, 46 F.4th 61 (1st Cir. 2022) (Selya, J.); and Mesnard v. Campagnolo, 47 Ariz. Cases Dig. 21, 489 P.3d 1184 (2021).

Department of Education Office for Civil Rights Title IX

Following Sage Blair Lawsuit, 67 Groups Call on DOE Officials Suzanne Goldberg and Catherine Lhamon to Resign

Post author By Edward Bartlett
Post date October 31, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

Following Sage Blair Lawsuit, 67 Groups Call on DOE Officials Suzanne Goldberg and Catherine Lhamon to Resign

WASHINGTON / November 1, 2023 – Seeking to fulfil Joe Biden’s campaign promise (1), acting director Suzanne Goldberg at the Department of Education commenced work on a Title IX regulation that would redefine “sex” to include “gender identity.” Less than six months after Joe Biden took office – and sidestepping legal requirements for public review-and-comment — the new regulation was issued on June 22, 2021. (2)

Just weeks after the unlawful policy took effect, Sage Blair informed officials at Appomattox County High School in Virginia that she had decided to identify as a male. Her plan to be referred to with a new gender pronoun and use the boys’ bathroom was met with skepticism. Sadly, Sage’s parents were not informed of these developments until weeks later.

Sage, 14, had experienced mental health problems as a child, and her condition now took a turn for the worse. Sage dropped out of school and left her home. Her life turned into a nightmare as she was drugged, sex trafficked, and repeatedly raped (3).

After Sage was rescued, her parents filed a lawsuit against the high school, charging:

“All of this could have been prevented if Sage’s parents had been fully apprised of her mental state and given the opportunity to provide the necessary mental health counseling when she first began questioning her identity. Instead, both the school district and public defender’s office decided they knew better than the parents. As a result of their arrogance, Sage was victimized multiple times over.”

When Goldberg began to draft the new regulation, serious safety concerns about medical services for transgender youth already had been documented in Finland, Sweden, and elsewhere (4). In England, the High Court ruled that youth under the age of 16 were unlikely to be mature enough to give informed consent to take puberty blockers (5). But Goldberg and her boss, Catherine Lhamon, blithely pushed ahead.

On October 24, House Education and the Workforce Committee Chairwoman Virginia Foxx rapped the knuckles of the Department of Education for subverting the “constitutional authority vested in Congress.” (6)

One week later, 67 organizations endorsed a letter calling for the resignation of Suzanne Goldberg and Catherine Lhamon:

“Encouraging hundreds of thousands of children and youth to transition to a different sex represents a radical medical experiment…These violations of the Administrative Procedure Act are unlawful, willful, and utterly contrary to the public interest. We call on you to immediately resign your positions at the U.S. Department of Education.”

The letter, signed by 67 national and state organizations, is available online: https://www.saveservices.org/wp-content/uploads/2023/10/Suzanne-Goldberg-and-Catherine-Lhamon-Coalition-letter-11.1.2023.pdf

Citations:

Department of Education Gender Agenda Gender Identity Office for Civil Rights Press Release Title IX

Federal Transgender Policy Has Turned Nation’s Youth into Unwitting Guinea Pigs

Post author By Edward Bartlett
Post date October 22, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

Federal Transgender Policy Has Turned Nation’s Youth into Unwitting Guinea Pigs

WASHINGTON / October 23, 2023 – About 300,000 American youth ages 13-17 currently identify as transgender. This represents a doubling of their numbers in the past five years (1). These persons are now serving as guinea pigs in a nationwide medical experiment.

These 300,000 youth are undergoing the process of “gender transitioning,” a life-altering transformation that involves three steps (2):

Social Transitioning: Assuming a new name, accepting new gender pronouns, and using bathrooms of the opposite sex.
Medical Transitioning: Taking hormones to create the physical characteristics of the opposite sex, affecting muscle growth, facial hair, and more.
Surgical Transitioning: Undergoing procedures such as breast removal or augmentation, penile inversion vaginoplasty, phalloplasty, hysterectomy, and more.

The safety and effectiveness of these procedures are hotly debated. One recent article, Current Concerns About Gender-Affirming Therapy in Adolescents, concluded that among youth transitioners, “every quality systematic review…has failed to find credible benefits.” (3)

Other studies have reached the opposite conclusion, that gender transitioning can improve a person’s quality of life and mental health, at least in the short run (4).

The obvious way to reconcile these confusing findings would for a child who is considering a gender transition to consult with their personal physician, along with his or her parents, to weigh the pros and cons of the various courses of action.

Unfortunately, school districts in 38 states — AL, AZ, CA, CO, CT, DE, DC, HI, ID, IL, IN, IA, KS, ME, MD, MA, MI, MN, MO, NE, NV, NH, NJ, NM, NY, NC, ND, OH, OR, PA, RI, TX, UT, VT, VA, WA, WI, and WY – currently have policies that say school personnel can or should keep a student’s transgender status a secret from the parents. By recent count, 10.7 million students across the country are now attending schools with such policies in place (5).

Obviously, if parents are not informed that their child is contemplating a change of genders, they will not be able to provide counsel, advice, or support. And the child is left to his or her own devices to sort through a welter of contradictory studies to reach a life-altering decision that is truly “informed.”

Later, youth who transition may run away from the family home, placing them at risk of becoming a victim of sex trafficking (6).

Thanks to the Department of Education’s unlawful decision to expand the definition of sex to include “gender identity” – masterminded by DOE officials Suzanne Goldberg and Catherine Lhamon (7) — a Mengelesque medical experiment has been unleashed across the land (8).

And innocent children and youth are serving as its unwitting guinea pigs.

Citations:

Department of Education Legal Office for Civil Rights Title IX

Department of Education Made a Mockery of APA Law to Fast-Track Lethal Transgender Policy

Post author By Edward Bartlett
Post date October 17, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

Department of Education Made a Mockery of APA Law to Fast-Track Lethal Transgender Policy

WASHINGTON / October 18, 2023 – During his presidential campaign, Joe Biden promised a “quick end” to the Trump Administration’s Title IX rule (1). From the first day of the Biden Administration, Suzanne Goldberg took over the helm at the Department of Education’s Office for Civil Rights (OCR). Goldberg served in that capacity until November 17, 2021, when Catherine Lhamon took over as the new Assistant Secretary for Education.

Little did members of the American public suspect that they were about to witness a flagrant abuse of the federal law known as the Administrative Procedure Act (APA). (2) The law requires federal agencies to publish an advance version of any proposed regulation, so persons are able to express their views on the proposed Rule (3).

On June 22, 2021, without advance warning or notice, the OCR issued a new Title IX Rule (4). The regulation warned schools that OCR would “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities.” The new policy took effect on the same day.

The new Rule represented a violation of all three APA requirements:

No prior notice.
No opportunity for public review and comment.
No agency response to public comments, since no comments had been solicited.

In response, on August 30, 2021 the Attorneys General from 20 states — AL, AK, AZ, AR, GA, ID, IN, KS, KY, LA, MS, MO, MT, NE, OH, OK, SC, SD, TN, and WV — brought a 14-count lawsuit against the DOE, alleging the Title IX Rule was procedurally and substantively unlawful under the Administrative Procedure Act (5). Nearly one year later, on July 15, 2022, the District Court of Tennessee issued a Temporary Injunction against the directive (6). But the Temporary Injunction only applies to the 20 states that had filed the lawsuit.

But the damage had been done. Educators across the country had been warned of the dire consequences of not enforcing the new transgender policy. By recent count, 10.7 million students are now attending schools with policies stating personnel can or should keep a student’s transgender status hidden from parents (7).

Now, about 300,000 American youth ages 13-17 identify as transgender, representing a doubling of their numbers in the past five years (8). And 18% of LGBTQ youth attempted suicide in the past year (9).

Encouraging hundreds of thousands of children and youth to transition to a different sex represents a radical medical experiment. In the words of ethicist Ryan Anderson, “Doctors are conducting a giant experiment that does not come close to the ethical standards demanded in other areas of medicine.” (10)

In short, OCR leaders Suzanne Goldberg and Catherine Lhamon simply ignored the Administrative Procedure Act in order to bow to Joe Biden’s campaign promise. The abuses were so calculated, flagrant, and contrary to the public interest that Suzanne Goldberg and Catherine Lhamon must now resign their positions at the U.S. Department of Education.

Send email to: alejandro.reyes@ed.gov

Citations:

Department of Education Due Process False Allegations Free Speech Gender Identity Office for Civil Rights Press Release Title IX

Candidates Are Invited to Sign ‘Pledge to Protect Schools, Children, and Families from Federal Title IX Plan’

Post author By Edward Bartlett
Post date October 5, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

Candidates Are Invited to Sign ‘Pledge to Protect Schools, Children, and Families from Federal Title IX Plan’

WASHINGTON / October 5, 2023 – The U.S. Department of Education is proposing to redefine the meaning of sex to include “gender identity” as part of the Title IX law (1). This change would have transformative effects on schools, children, families, and American society at large (2).

In response, SAVE is inviting candidates for federal, state, or local office to sign a “Candidate Pledge to Protect Schools, Children, and Families from the Federal Title IX Plan.” The Pledge states,

When elected to office, I pledge to work to assure that:

Schools and other organizations shall utilize the traditional binary definition of “sex.”
Schools shall obtain prior consent from parents for any use of gender pronouns, or gender-dysphoria counseling or treatments.
Parents shall have the right to examine and opt their children out of any school curricula dealing with sexuality and gender identity.
Schools shall only allow biological females to participate in women’s sports, enter women’s locker rooms, and use women’s bathrooms.
Schools shall adhere to Constitutional due process procedures to protect falsely accused males from Title IX complaints.
Schools and other institutions shall fully uphold Constitutional free speech guarantees.

The Candidate Pledge can be viewed online (3). Candidates can indicate their support for the Pledge by sending a confirmatory email to: rthompson@saveservices.org

Even though the Pledge was not publicly announced until October 5, lawmakers in Alabama, Idaho, Iowa, Vermont, Virginia, and West Virginia already have signed on to the statement (4).

The Biden Title IX proposal has faced stiff criticism from numerous federal and state lawmakers and attorneys general (5). In addition, five Republican presidential candidates are now calling for the abolition of the Department of Education (6).

Candidates for school boards also are invited to sign the Pledge. At last count, 1,045 school districts around the country have implemented policies stating that school personnel can or should keep a student’s transgender status hidden from parents (7).

Candidates are welcome to display the signed Pledge on their campaign websites and at campaign events.

Citations:

Department of Education Gender Agenda Gender Identity Office for Civil Rights Press Release Title IX

LGBTQ Advocates Push Back Against Biden Title IX Plan

Post author By Edward Bartlett
Post date October 1, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

LGBTQ Advocates Push Back Against Biden Title IX Plan

WASHINGTON / October 2, 2023 – The Biden Department of Education is expected to miss its self-imposed October deadline to issue a new Title IX regulation (1). The proposal has faced stiff opposition from lawmakers, state attorneys general, and presidential candidates (2).

Now, a growing number of LGBTQ advocates are criticizing the plan, as well:

LGBTQ Activists: Leading LGBTQ advocate Alejandra Caraballo complained, “Honestly, this move by Biden to push a rule on trans kids in sports is not only a backwards betrayal, it forces us to have to spend our time dealing with sports instead of criminal bans on our healthcare.” (3)

Gays Against Groomers: Sporting 17 chapters nationwide, Gays Against Groomers has become a strong voice of opposition to the Biden plan (4). At a September 21 SAVE press conference, Brady Oehler, leader of the group’s D.C. chapter, explained, “Gays Against Groomers does not advocate against adults who have gender dysphoria, but advocates for the protection of children, and to be a voice for the voiceless…If you truly care and want to support those that need guidance, you will not take our youth and use them to push a gender ideology.” (5)

Expert Witness: The most detailed criticism was voiced by Dr. Erica E. Anderson, a psychologist and transgender woman. Testifying in a recent lawsuit before the US District Court of Southern California, Anderson explained:

“A child or adolescent who exhibits a desire to change name and pronouns should receive a careful professional assessment prior to transitioning…Parental involvement is necessary to obtain professional assistance for a child or adolescent experiencing gender incongruence.”

Anderson concluded, “a social transition represents one of the most difficult psychological changes a person can experience. [And] embarking upon a social transition based solely upon the self-attestation of the youth without consultation with parents and appropriate professionals is unwise.”

Apparently swayed by this testimony, Judge Roger Benitez ruled on September 14 against the parental secrecy policy of the Escondido Union School District (6).

Detransitioners: Detransitioners are speaking out against gender dysphoria treatments for minors, as well (7). At a recent Congressional hearing, Chloe Cole described the gender transitioning of youth as “one of the biggest medical scandals in the history of the United States of America,” and issued a heart-felt plea to lawmakers to “bring the scandal to an end.” (8)

These developments have compelled 59 organizations to call for the resignation of DOE Office for Civil Rights director Catherine Lhamon (9).

The recent rise of the movement to promote gender transitioning can be attributed to a nihilistic philosophy known as“anti-humanism.” Proponent Patricia MacCormack explains, “The death of the human species is the most life-affirming event that could liberate the natural world from oppression.” (10)

Over a decade ago, anti-humanism began to infiltrate Leftist ideology, particularly the environmental movement (11). Anti-humanism is now evident in radical proposals to decimate livestock and curtail agricultural production (12).

Now, anti-humanism is targeting vulnerable children and youth so they no longer have the capacity to reproduce.

Citations:

Department of Education Title IX

Gays Against Groomers Speaks Out on Biden Title IX Plan

Post author By Edward Bartlett
Post date September 28, 2023

Campus Department of Education Due Process Office for Civil Rights Press Release Title IX

Presidential Candidates — Republican and Democratic — Denounce Biden Title IX Plan

Post author By Edward Bartlett
Post date September 25, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

Presidential Candidates — Republican and Democratic — Denounce Biden Title IX Plan

WASHINGTON / September 25, 2023 – The Biden Department of Education released a proposed Title IX regulation in 2022 that would redefine sex to include “gender identity.” (1) The proposal has faced strong criticism from lawmakers, attorneys general, and others (2).

A number of presidential candidates, Republican and Democratic, have spoken out against the Biden plan, as well:

Ron DeSantis: DeSantis called Biden “off his rocker” over the Title IX proposal, vowing his administration will be “fighting on that.” (3) In 2021, Gov. DeSantis signed the Fairness in Women’s Sports Act, which prohibits biological male students from participating in women’s sports (4).

Robert Kennedy: “I am against people participating in women’s sports who are biologically male. I think women have worked too hard to develop women’s sports over the past 30 years, I watched it happen, and I don’t think that’s fair.” (5)

Mike Pence: Pence has promised to “Eliminate the U.S. Department of Education and convert some of its current budget to grants to states and localities, providing maximum flexibility in how to deploy federal dollars.” (6)

Vivek Ramaswamy: “The U.S. Dept of Education strikes again – now saying local schools can’t stop boys from competing in girls’ sports. It’s appalling that we spend *$83 billion per year* on this toxic agency. It’s rotten waste. That’s why I’ll shut it down without apology.” (7)

Tim Scott: In 2022, Scott introduced the Parental Rights Over the Education and Care of Their Kids Act, which would bar schools from allowing a student to use a different name, pronoun, restroom or locker room without the knowledge of their parents (8).

Donald Trump: “On Day One, I will revoke Joe Biden’s cruel policies on so-called ‘gender-affirming care,’…we will promote positive education about the nuclear family…I will ask Congress to pass a bill establishing that the only genders recognized by the U.S. government are male and female…the bill will also make clear that Title IX prohibits men from participating in women’s sports.” (9)

The Title IX Network was formed in 2022 to oppose the Biden Title IX proposal, and now consists of 217 organizations working at the national, state, and local levels (10).

Last week, 59 member organizations called for the resignation of Assistant Education Secretary Catherine Lhamon for violations of her Oath of Office in connection with her efforts to change Title IX. The Statement was released at a press conference held in Washington, DC (11).

Lawmakers and others who support the resignation of Catherine Lhamon should express their concerns directly to the Department of Education: alejandro.reyes@ed.gov

Citations:

Civil Rights Department of Education Due Process Free Speech Gender Agenda Office for Civil Rights Press Release Sexual Harassment Title IX

59 Groups Call for Assistant Education Secretary Catherine Lhamon to Resign for Violating Oath of Office

Post author By Edward Bartlett
Post date September 20, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

59 Groups Call for Assistant Education Secretary Catherine Lhamon to Resign for Violating Oath of Office

WASHINGTON / September 21, 2023 – Fifty-nine organizations today are calling for the resignation of Assistant Education Secretary Catherine Lhamon for repeated violations of her Oath of Office. The Statement was released at a press conference held today in Washington, DC.

When Lhamon became a federal employee, she took this Oath of Office: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.”

Unfortunately, in the process of developing a new Title IX regulation (1), Lhamon has broken three key provisions of the U.S. Constitution:

Article 1, Section 1: Authorization of Congress to exercise “All legislative Powers.”

Congress passed Title IX in 1972 with the understanding that Title IX was designed to apply to the male and female sexes (2). Title IX was not intended to include protections on the basis of gender identity. Lhamon’s proposed Title IX regulation would change the definition of “sex,” representing a dramatic usurpation of Congressional authority.

First Amendment: “Congress shall make no law…abridging the freedom of speech.”

In Davis v. Monroe County Board of Education, the Supreme Court defined sexual harassment as conduct that is “severe, pervasive, and objectively offensive.” (3)

But the Department of Education’s proposed regulation rejects the Supreme Court’s definition of sexual harassment, proposing that speech would only need to be “pervasive” or “severe” to violate Title IX. One federal court has ruled such a definition to be “staggeringly broad.” (4)

Fourteenth Amendment: No State shall “deprive any person of life, liberty, or property, without due process of law.”

Dozens of federal courts have affirmed a series of due process rights for college students, including the rights to an impartial investigation, elimination of pro-complainant bias, notice to the accused, cross examination, access to evidence, and evaluation of evidence (5).

But Lhamon’s proposed regulation would severely weaken or eliminate the following due process protections for students accused of a Title IX infraction:

Independent and impartial investigations
Unrestricted access to evidence
Right to a live hearing and cross-examination

For these reasons, 59 organizations have endorsed a Statement calling for Lhamon’s immediate resignation from office (6).

Citations:

DED Sexual Assault Directive Department of Education Office for Civil Rights

Communications from Brett Sokolow to the Office for Civil Rights Reveal Strong Support for 2011 Dear Colleague Letter

Post author By Edward Bartlett
Post date September 1, 2023

Communications from Brett Sokolow to the Office for Civil Rights Reveal Strong Support for 2011 Dear Colleague Letter

Source: https://www.documentcloud.org/documents/23933046-17-02732-f

Below are two messages from Brett Sokolow to the Department of Education in 2011 and 2012 regarding the DOE’s 2011 Dear Colleague Letter (DCL). In these messages, Sokolow repeatedly expresses his support for the controversial policy:

September 6, 2011:

“Our efforts were met with great skepticism until the DCL, the issuance of which now has us looking like prophets.”
“We are accomplishing some amazing things as the result of the momentum created by the DCL.”

February 7, 2012:

“the DCL signals the OCR’s strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault. Overall, the DCL addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures.”
“The DCL offers uniformity and clarity on many important issues related to Title IX, and promises to improve student access to equal educational opportunities. To the extent that the recently proposed Campus SaVE Act seeks to codify certain provisions of the DCL, such as mandated use of the preponderance standard, we are supportive. We agree with the aims of gender equity in education under Title IX. Towards that end, we are supportive of the powerful message expressed in the DCL and the ideas expressed in this statement.”

See entire communications, below:

Pages 35-36

From: Brett Sokolow

<brett@ncherm.org>

To: Ali, Russlynn

Sent: Tue Sep 06, 2011

Subject: Title IX Keynote Invitation

Dear Asst. Secretary Ali,

I hope you are doing well. I have a number of items I want to raise, and I was hoping we might find an opportunity to do it in person. Please let me know if my partners and I can meet with you at a time of your convenience. On a personal note, you may or may not know of our work, but we have worked diligently for the last fourteen years to advance the cause of Title IX compliance on campus sexual violence with student affairs administrators. Our efforts were met with great skepticism until the DCL, the issuance of which now has us looking like prophets. That’s credit beyond what we deserve, but our advocacy of Title IX compliance, cases and complaints has been substantial and now carries an authority we could never have dreamed it would.

Because of that, it seems like FIRE, the False Rape Society, and the Mens’ Rights folks have us both in their sights these days. I’m happy to be taking some of the pressure off of you the last few weeks, though I expect that’ll be short-lived. I thought your comments this week to the Christian Science Monitor were very helpful to many college administrators who are left wondering whether the FIRE and AAUP attacks on the DCL will carry any weight. They need to hear your pushback. Talk in the field is that Harvard and Princeton are publicly stating that they intend to contest the imposition of the preponderance standard, and their codes of conduct are still publishing higher standards as of the start of this semester, post-DCL and with investigations ongoing. Resolving those complaints should bring about some greater finality, but it is fascinating to watch so many campuses making fundamental changes all at once. Historic, really.

If you are looking for a vehicle to carry the message further, we are hosting a campus sexual misconduct web stream on Sept. 12th. There will be hundreds of campus conduct officers participating. If we can share a written, live or recorded word from you or OCR, we’re happy to make space for you.

On another front, I have put your name forward to both ACPA and ASCA, two national higher education associations that have deep interest in Title IX, and I expect they have been in touch to invite you to their conferences. I hope you can attend or send an OCR representative.

Finally, you may be aware that we launched ATIXA in mid-August, the Association of Title IX Administrators (www.atixa.org). We have 225 members in less than a month, which is very exciting. We are accomplishing some amazing things as the result of the momentum created by the DCL. We are planning our first annual conference in 2012 to coincide exactly with the 40th Anniversary of Title IX. We have a substantial event planned for June, with a commemoration reception on the anniversary. Please consider this my formal request to have you preside over this reception and/or provide a keynote address at the conference in Chicago. We have a decent budget to make this event a centerpiece of national Title IX anniversary events, and hope OCR will tie some of its efforts to ATIXA’s, whether it be by personal appearance, content sessions at the conference, a platform to issue new Guidance, etc.

You may also know that I am trying to include OCR representatives in the Title IX Coordinator Training events we are doing around the country. Gayle Sakowski in the San Francisco office had to pull out of our early August event in St. Louis at the last minute, but we have upcoming events in Philadelphia, San Antonio and Atlanta. We’re trying to work with a few OCR offices, but I wonder if there is a way we could orchestrate a consistent OCR representative (as these events are not regional in attendance) to share a broader perspective on compliance and enforcement than we can?

Sorry to dump all of these inquiries on you at once, but hopefully they can serve to form a bridge of communication between us that is beneficial to advancing Title IX compliance in schools and colleges. Again, please let me know when we might be able to schedule a meeting in Washington or another location that is convenient for you.

Regards,

Brett A. Sokolow. Esq. Attorney-at-Law

Managing Partner, The National Center for Higher Education Risk Management (www.ncherm.org)

Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)

Executive Director, The Association of Title IX Administrators (www.atixa.org)

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

Pages 38-41

From: Nancy Hogshead-Makar

Sent: Tuesday, February 07, 2012 6:52 PM

To: OCR; Ali, Russlynn

Subject: Support for the April DCL on Sexual Harassment and Violence under Title IX

Dear Assistant Secretary Ali,

Please find the attached letter, signed by 47 organizations, in support of the April 4th, 2011 “Dear Colleague Letter” on sexual harassment and violence under Title IX.

Warm regards, Nancy Hogshead-Makar

Senior Director of Advocacy, Women’s Sports Foundation

8787 Baypine Road

Jacksonville, Florida 32256

904 – 680 – 7784 w

904 – 307 -4293 c

904 – 680 – 7771 f

@Hogshead3au

NhogsheadgWomensSportsFoundation.org

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

[Text of Letter – entire letter with footnotes is available at https://www.womenssportsfoundation.org/wp-content/uploads/2016/09/organizational-signon-for-dcl-re-sexual-violence-2012-final-sign-on-3.pdf ]

February 7, 2012

[Letterheads of the Women’s Sports Foundation and ATIXA: Association of Title IX Administrators]

Russlynn Ali

Assistant Secretary for Civil Rights

Office for Civil Rights United States

Department of Education

Lyndon Baines Johnson Department of Education Building

400 Maryland Avenue, SW Washington, DC 20202-1100

Sent by E-mail, U.S. Mail and Facsimile (202-453-6012)

Re: WE SUPPORT THE TITLE IX DEAR COLLEAGUE LETTER ON CAMPUS SEXUAL VIOLENCE

Dear Assistant Secretary Ali:

On April 4th, 2011, the US Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter,” (DCL) which explained schools’ responsibilities for addressing campus sexual violence under Title IX. 1 While the letter does not amend Title IX or depart from previously issued regulatory guidelines, it provides depth and explanatory content on compliance standards. Announced jointly by Vice President Joe Biden and Secretary of Education Arne Duncan, the DCL signals the OCR’s strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault. Overall, the DCL addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures. The DCL also notes in particular that complaints against athletes must be subjected to the same rigorous standard as when the accused individual is a non-athlete.

Certain provisions in the DCL have been the subject of public controversy. This statement is intended as a response to that controversy and as a declaration of support for the DCL as a whole.

The two main provisions of the DCL that have generated the most debate are:

A provision recognizing that schools must apply a preponderance of evidence standard of proof when assessing the merits of a complaint of sex-based discrimination, harassment and/or violence;
A provision requiring equitable treatment of victims and accused students.

Each of these will be addressed in turn and considered through the lens of Title IX’s mandate requiring prompt, equitable and effective redress and remedies.

THE PREPONDERANCE STANDARD

Proof by a “preponderance of the evidence” means the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” Contrary to a few highly publicized claims, the DCL’s requirement of a preponderance of evidence standard is neither new nor controversial. Indeed, according to Russlynn Ali, Assistant Secretary for Civil Rights at the Department of Education, approximately 80% of colleges and universities were already using the standard prior to the issuance of the DCL. This reflects, in part, the OCR’s consistent message to school over many years and administrations that they must apply a preponderance of evidence standard. Prior to the issuance of the DCL, a minority of schools applied a “clear and convincing” or “clear and persuasive” evidence standard. This much higher level of proof had already been rejected by the OCR long before publication of the DCL.

The preponderance standard is the only equitable choice under Title IX as it avoids the presumption, inherent in a higher standard of proof, that the word of a victim is less weighty than the word of an accused individual’s denial. It also enables school officials to render more decisive findings with greater confidence, given that a determination that one individual is more credible than another will support a finding. This is important given widespread criticism of school policies that enable decision-makers to claim they “believed” the victim, thus offered her counseling services, etc., but did not believe her enough to justify a finding against the assailant.

While Title IX’s equity mandate does not require that similar violations receive the same punishment, it does require that discrimination based on sex be subjected to the same policies and procedures as other forms of discrimination. As institutions routinely apply a preponderance standard to allegations of harassment based on race, ethnicity, disability, etc., it would be inequitable in the extreme not to apply the same standard to matters involving discrimination based on sex.

Because the preponderance standard allows for high confidence in decision-making, it better enables schools to take effective steps to prevent the future recurrence of discriminatory behavior, and to repair harm done to the school community.

Finally, a preponderance standard is appropriate because it is the applicable standard of proof in civil litigation when issues of sexual harassment and assault are redressed. If civil courts must apply a preponderance of evidence standard when holding schools and/or individuals accountable for negligence and intentional tort claims and civil rights violations, then schools should be obligated and empowered to protect their communities under the same standard. To conclude otherwise would ironically render victims more vulnerable to violence and harassment on college campuses than in the relatively less regulated “real” world simply because a lower standard will be less effective in deterring and vetting out harmful behavior within the community. Furthermore, with the same standard in place for school-based proceedings and civil justice matters, students may be less likely to file lawsuits because they will no longer perceive the civil justice system as affording a more favorable venue for legal redress.

THE EQUITABLE TREATMENT OF VICTIMS AND ACCUSED STUDENTS

Fair treatment of victims and accused students is consistent with the explicit mandate that schools adopt policies providing for “equitable” redress. The DCL is clear that the rights, benefits, privileges or opportunities typically extended to accused individuals should also be extended to victims. For example, if an accused individual is provided with a right to an advocate, the same benefit should be made available to the victim. Equity also requires that relevant investigative materials be provided by the school to the accused individual and to the victim, such that they have equal opportunities to prepare and respond. The victim should neither be burdened with the responsibility of serving as a kind of “prosecutor” during the process, nor be relegated to the role of mere witness with no individual rights at stake. Title IX obligates the school, not the victim, to take all responsibility for the remediation of harm by providing for the prompt, equitable and effective redress of complaints.

A minority of schools have adopted policies and procedures that mimic criminal justice proceedings. These school procedures afford greater rights to the accused student, with few if any substantive or enforceable rights for victims. Applying criminal justice rules to school-based proceedings is not appropriate because schools are not the government and are not vested with the power to deprive an individual of a liberty interest akin to the nature of liberty at stake in criminal courts. Moreover, unlike the criminal justice system, the primary purpose of schools under Title IX is to ensure equal access to education, not to deter, punish and provide rehabilitation for accused and convicted criminals.

This does not mean schools should be unfair to accused students or that the interests at stake for accused students are not important. Indeed, the U.S. Supreme Court has held that public schools must provide some degree of due process to students prior to the imposition of punishment that rises to a level of suspension or dismissal. The Court has cautioned, however, that the student’s interest is much less weighty than that which is at stake for criminal defendants. Thus, far less “process” is required in school-based proceedings compared to the protections of due process afforded the accused in criminal justice matters.

At the same time, schools must act to protect students from discrimination, harassment, criminal victimization and other types of harm. In certain circumstances, schools are even obligated to take action prior to affording an accused individual notice and an opportunity to be heard, as when a “student’s presence endangers persons or … threatens disruption of the academic process…”

Equity does not mean applying exactly the same rules to victims as accused students. For example, it is inappropriate for schools automatically to issue mutual “no-contact” orders between victims and offenders as this restrains a victim’s freedom of movement and access to campus facilities without justification. Likewise, a victim should not be made to adjust her living conditions and/or be ordered to stay away from the offender on the grounds that requiring the accused individual to adjust his circumstances will violate his due process rights. The DCL makes clear that imposing any such burdens on a victim is inequitable and may constitute new harm under Title IX because the victim may endure additional suffering that interferes with her ability to participate in educational programs.

Finally, equity requires schools to consider allegations that an accused offender has committed multiple similar offenses. In criminal proceedings, this so-called “pattern evidence” can be excluded because judges are duty bound to apply criminal Constitutional rights that are not applicable in school-based proceedings. The special nature of a school community renders “pattern evidence” far more relevant because schools can be held liable to victims if they are “deliberately indifferent” to known risks of harm on campus, or fail to meet the duty of reasonable care for foreseeable harm. Likewise, consideration of “pattern evidence” is relevant to a proper assessment of whether class-based harm has occurred. This is an especially important factor in sexual assault cases because 90% of campus assaults are committed by repeat offenders. Indeed, failure to consider such evidence could inhibit or prevent equitable consideration of specific cases and interfere with a school’s duty to redress discrimination directed at protected classes on campus.

Other Issues

DOES THE DCL SATISFY THE ADMINISTRATIVE PROCEDURES ACT?

A question was raised as to whether the DCL violates the Administrative Procedures Act (APA), which requires government agencies to propose new regulations before implementing them, and provide for a period of public commentary. This objection is inapt as the DCL is not a “new regulation” and the OCR has always had authority to enforce Title IX. The DCL is not a regulatory scheme, but rather, serves as a clear statement of the OCR’s established positions on issues of promptness, equity, effective redress, risk management and legal consistency.

WHAT DOES “PROMPTNESS” MEAN?

While there is no fixed period of time within which complaints must be finally resolved, the DCL is clear that “promptness” is not satisfied if a school delays conducting an investigation and/or holds off convening a hearing until the criminal justice system has run its course. In fact, a school will be found to have violated Title IX’s promptness mandate if it declines to act because it is awaiting either the completion of a criminal investigation, prosecutorial decision as to whether charges will be filed and/or a final judgment by judge or jury. The DCL requires promptness as to the initial investigation and hearing process, as well as to post-decision appeals, rehearings and requests for reconsideration. In short, promptness means prompt as to the final resolution, including all appeals and post-decision “motions,” and the DCL indicates that a school should reach its full and final resolution within a 60-day timeframe.

HOW DOES THE DCL APPLY TO ATHLETICS SPECIFICALLY?

The DCL requires that athletes accused of sexual violence be subject to the school’s regular Title IX disciplinary process, without preferential treatment, softer sanctions or tracking of misconduct and disciplinary action solely through the athletics department, as is the policy on some campuses. In addition, the DCL singles out athletes and athletics departments as audiences worth targeting for preventive education programs, and recommends that schools develop specific sexual violence materials within student-athlete handbooks. Such material should include the schools’ policies, rules, and resources for students, faculty, coaches, and administrators. The materials also should include resources for student-victims looking for help, including specific information about their rights and the responsibilities of teammates and employees of athletics departments regarding reporting and other obligations when sexual assaults are reported or reasonably known.

THE CAMPUS SaVE ACT

We believe the April 4th, 2011 Dear Colleague Letter advances the inherent societal good that gender equity represents. The DCL offers uniformity and clarity on many important issues related to Title IX, and promises to improve student access to equal educational opportunities. To the extent that the recently proposed Campus SaVE Act seeks to codify certain provisions of the DCL, such as mandated use of the preponderance standard, we are supportive. We agree with the aims of gender equity in education under Title IX. Towards that end, we are supportive of the powerful message expressed in the DCL and the ideas expressed in this statement.

Signed,

Brett Sokolow, Esq.

Executive Director, ATIXA

The Assoc. of Title IX

Administrators www.atixa.org

[And 46 other organizations]