Category: Department of Education

32 Judicial Decisions Have Upheld Cross-Examination in Title IX Cases

Post author By Edward Bartlett
Post date August 31, 2021

32 Judicial Decisions Have Upheld Cross-Examination in Title IX Cases

SAVE

August 31, 2021

American jurisprudence has long recognized the truth of John H. Wigmore’s assertion that cross examination is “the greatest legal engine ever invented for the discovery of truth.” For these reasons, the 2020 Amendments to the Title IX regulation state: “…cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.” Section 106.45(b)(6)(i)

Unfortunately, certain groups are incorrectly claiming that the recent Victim Rights Law Center v. Cardona decision casts doubt on the overall importance of cross-examination. For example, the TNG recently recommended:

“If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.” [emphasis added]

Below is a listing and key quotes from the 32 judicial decisions from 9 appellate courts and 23 trial courts that have affirmed the essentiality of cross examination. More information about these decisions is available HERE.

Appellate Court Decisions

Doe v. University of Sciences, 961 F.3d 203, 214 (3d Cir. 2020) (reversing the district court’s order dismissing Doe’s complaint alleging a Title IX violation and breach of contract and fairness): “In other private-university cases, Pennsylvania courts have similarly determined that fairness includes the chance to cross-examine witnesses[.]”
Boermeester v. Carry, 263 Cal. Rptr. 3d 261, 279 (Cal. App. 2d Dist. 2020), as modified (June 4, 2020), reh’g denied (June 18, 2020), review granted and ordered not to be published, 472 P.3d 1062 (Cal. 2020) (finding that credibility was central to a determination of sexual misconduct): “In a case such as this one, where a student faces a severe sanction in a disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in-person hearing in which he may cross-examine critical witnesses to ensure the adjudicator has the ability to observe the witnesses’ demeanor and properly decide credibility. In reaching this conclusion, we agree with the prevailing case authority that cross-examination of witnesses may be conducted directly by the accused student or his representative, or indirectly by the adjudicator or by someone else.”
Doe v. Westmont College, 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019) (affirming the trial court’s writ of mandate setting aside Westmont’s determination and sanctions against Doe because of fairness issues): “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly . . . [t]he Panel denied John [Doe] that right.”
Matter of A.E. v. Hamilton Coll., 173 A.D.3d 1753 (2019) (Article 78 Proceeding – reversing the lower court’s order and directing respondents to adhere to the College’s published rules):
1. “Although the Policy states that both the complainant and the ‘individual whose conduct is alleged to have violated th[e] Policy’ are entitled to ‘be informed of campus judicial rules and procedures,’ the right to submit questions in writing to the accusers or witnesses is not explicitly mentioned anywhere in the Policy and was not mentioned in any communication to petitioner outlining the campus judicial rules and procedures.” Id. at 1755.
2. “Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right, we conclude that respondents’ failure to inform petitioner that he had such a right establishes that they did not substantially adhere to the College’s own published rules and guidelines requiring them to inform petitioner of all of the campus judicial rules and procedures.” Id.
Doe v. Baum, 903 F.3d 575, 583 (6th Cir. 2018) (reversing district court’s dismissal for failure to state a due process claim): “Universities have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment. And in sexual misconduct cases, allowing the accused to cross-examine the accuser may do just that. But in circumstances like these, the answer is not to deny cross-examination altogether. Instead, the university could allow the accused student’s agent to conduct cross-examination on his behalf. After all, an individual aligned with the accused student can accomplish the benefits of cross-examination—its adversarial nature and the opportunity for follow-up—without subjecting the accuser to the emotional trauma of directly confronting her alleged attacker.”
Doe v. Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1071–72, 236 Cal. Rptr. 3d 655, 667 (2018) (finding that Doe’s case hinged on credibility and therefore his hearing should have included the opportunity to cross examine Jane): “CMC argues in the alternative that, even if under Regents John was entitled to question Jane indirectly, this was satisfied by CMC’s procedures ‘allowing [John] to submit questions for the Investigator to ask witnesses based on the PIR.’ Setting aside the issue that the investigator did not in fact ask any of John’s proposed questions to Jane, CMC’s argument ignores the Committee’s own need to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John. This was the very benefit to oral testimony underlying the holding of Cincinnati.”
Doe v. Univ. of S. California, 29 Cal. App. 5th 1212, 1234, 241 Cal. Rptr. 3d 146, 164 (2018) (finding that Doe was denied a fair hearing): “The same considerations underlying the holdings in Claremont McKenna, Baum, and Cincinnati apply here. Where a student faces a potentially severe sanction from a student disciplinary decision and the university’s determination depends on witness credibility, the adjudicator must have the ability to observe the demeanor of those witnesses in deciding which witnesses are more credible. This will typically be the case in disciplinary proceedings involving sexual misconduct where there is no corroborating physical evidence to assist the adjudicator in resolving conflicting accounts.”
Doe v. Regents of the University of California, 2d Civ. No. B283229, at *24 (Cal. Ct. App. 2d 2018) (reversing the trial court’s judgment denying Doe a writ of administrative mandate for fairness and procedural due process violations and remanding the case to the superior court with the direction to grant Doe’s writ of administrative mandate): “[T]he [Sexual/Interpersonal Violence Conduct] Committee inexplicably allowed Jane to decline to respond to John’s questions about the side effects of Viibryd on the ground that it was her ‘private medical information.’ This deprived John of his right to cross-examine Jane[.]”
Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017) (citations omitted) (affirming district court’s order enjoining Doe’s suspension from University):
1. “Ultimately, the [University] must decide whether Doe is responsible for violating UC[incinnati]’s Code of Conduct: whether Roe’s allegations against him are true. And in reaching this decision [t]the value of cross-examination to the discovery of truth cannot be overemphasized. Allowing John Doe to confront and question Jane Roe through the [University sex misconduct hearing] panel would have undoubtedly aided the truth-seeking process and reduced the likelihood of an erroneous deprivation.” Id. at 404.
2. “[UC[incinnati] assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused. A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not. The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause. Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, cross-examination has always been considered a most effective way to ascertain truth.” Id. at 401

Trial Court Decisions

John Doe v. Michigan State University, et al., No. 1:18-CV-1430 (W.D. Mich. Sep. 1, 2020) (denying the university’s MTD because Doe plausibly claimed a constitutional due process violation):
1. “Hence, consistent with how Plaintiff has framed the proposed class in this case (‘All MSU students and/or former students … subjected to a disciplinary sanction … without first being afforded a live hearing and opportunity for cross[- ]examination of witnesses’), Plaintiff’s procedural due process claim is specifically based on his claimed right to ‘a live hearing and cross-examination.’” Id. at *12-13.
2. “In short, at this pleading stage, taking the facts as true and reading all inferences in Plaintiff’s favor, Plaintiff has plausibly demonstrated a violation of a clearly established right.” Id. at *15.
Messeri v. DiStefano, 480 F. Supp. 3d 1157, 1165 (D. Colo. 2020) (holding a reasonable factfinder could find that University’s failure to provide Messeri with a neutral arbitrator violated his procedural due process): “As examined above in Part III.B.1, Plaintiff has a substantial interest in avoiding expulsion and continuing his education. The University’s interests in limiting procedural safeguards relating to student’s hearing rights are less evident. Although the University correctly points out that it has an interest in avoiding ‘convert[ing] its classrooms to courtrooms’ to referee cross-examination amongst students and their representatives, this interest truly pales in comparison to the risk of error which may result in the wrongful expulsion of a student.”
Doe v. University of Michigan, 448 F. Supp. 3d 715, 728 (E.D. Mich. Mar. 23, 2020) (granting Doe’s motion for partial summary judgment and denying the university’s MTD on constitutional due process grounds): “From its inception to the University’s appeal in Baum, the 2018 Policy was in violation of Circuit precedent. Five months before publishing its 2018 Policy and likely during its drafting, the Sixth Circuit held that cross-examination was ‘essential to due process’ only where the finder of fact must choose ‘between believing an accuser and an accused,’ and implored universities to provide a means for decision makers ‘to evaluate an alleged victim’s credibility.’ Cincinnati, 872 F.3d at 405-06. The Court of Appeals further emphasized that deciding the plaintiff’s fate without a hearing and cross-examination was a ‘disturbing…denial of due process.’ Cincinnati, 872 F.3d at 402. Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity.”
Averett v. Hardy, No. 3:19-CV-116-DJH-RSE, 2020 WL 1033543, at *7 (quoting Baum, 903 F.3d 575, 582) (denying MTD due process claim against university administrator): “Averett … alleges that his inability to access exculpatory evidence until the day of the hearing impaired his ability to effectively cross-examine witnesses. When sexual misconduct is alleged and the credibility of antagonistic witnesses plays a central role, ‘[c]ross-examination is essential…. it does more than uncover inconsistencies—it ‘takes aim at credibility like no other procedural device.’ U of L has a strong interest in handling allegations of sexual misconduct in a fair manner.”
Doe v. University of Connecticut, No. 3:20CV92 (MPS), 2020 WL 406356, at *5 (D. Conn. Jan. 23, 2020) (granting Doe’s TRO against the university on constitutional due process grounds): “Here, however, the Plaintiff was denied even 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. Given UCONN’s reliance on this testimony and given the importance of credibility evidence to this factual dispute, denying the Plaintiff the opportunity to respond fully to Jane Roe and her witnesses heightened the risk of erroneous deprivation.”
L.M. v. S. Ill. Univ. at Edwardsville (SIUE), No. 18-cv-1668-NJR-GCS, 2019 U.S. Dist. LEXIS 192800, at *7-8 (S.D. Ill. Nov. 6, 2019) (denying MTD for failure to state due process claim): “The Complaint … does not clearly delineate what allegations relate to a substantive due process claim. L.M. appears to be alleging that the Procedures and Policies violate substantive due process because they did not allow counsel to conduct direct examination of L.M. or cross-examination of C.M., and because counsel could only submit written questions in advance … Defendants have not cited to authority demonstrating why this particular allegation fails to state a substantive due process claim. Thus, L.M.’s substantive due process claim will not be dismissed at this stage of the proceedings.”
Doe v. Cal. Inst. of Tech., 2019 Cal. Super. LEXIS 10956 (holding that the administrative procedure provided to Doe was unfair and requiring the sanctions against Doe be set aside):
1. “We hold that where, as here, John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by John or the Committee itself. That opportunity did not exist here.” Id. at *15.
2. “The credibility of the complainants, multiple adverse witnesses, and Petitioner was at issue. At least one of the complainants, ‘SURF,’ chose not to participate in the investigation. Nonetheless, the investigators credited her complaint over Petitioner’s response based on interviews with other witnesses.” Id. at *17.
Norris v. Univ. of Colorado, Boulder, 362 F. Supp. 3d 1001, 1011 (D. Colo. 2019) (Denying MTD for failure to state a Title IX claim): “Plaintiff notes he does not simply disagree with the Investigators’ findings, but instead his Complaint sets forth a litany of grievances which he argues denied him of a fair and impartial process. In part, Plaintiff disputes the University’s actions of: … denying Plaintiff the right to cross-examine his accuser … precluding Plaintiff from questioning witnesses”
Doe v. University of Mississippi, 361 F.Supp.3d 597, 611 (2019) (holding that Doe had raised plausible claims of sex bias and due process violations): “Because neither Roe nor any other witnesses against Doe appeared at the hearing, he was not permitted to cross-examine – either directly or through written questions submitted to the hearing panel – the witnesses whose accounts of the evening led to his discipline.”
Doe v. White, No. BS171704 (Cal. Sup. Ct. Feb. 7, 2019) (Order setting aside Doe’s expulsion): “John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by John or the Committee itself. That opportunity did not exist here.”
Doe v. The Trustees of the State of California, No. BS167329, at *10 (Cal. Sup. Ct. Feb. 5, 2019) (granting Doe’s writ of mandate for lack of fairness during the adjudicative process): “Petitioner never had an opportunity to ‘cross–examine [Roe 2], directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.’”
Doe v. University of Southern Mississippi, et al., 2:18-cv-00153-KS-MTP (S.D. Miss. Sep. 26, 2018) (granting Doe a preliminary injunction on due process grounds):
1. “Thus, while the Fifth Circuit has not held that cross examination is required, it has certainly never held that it is strictly prohibited. This Court finds that this is a case where cross examination is warranted because such a procedural safeguard would have lessened the risk of an erroneous deprivation.” Id. at *8.
2. “[Doe] could not know whether the summary was correct because he never heard the testimony in the first place. Writing a rebuttal after the testimony is complete is not the same as cross examination, which provides the opportunity to assess the person’s demeanor when asked certain questions and flesh out inconsistencies in a search for the truth.” Id. at *9.
Doe v. Pennsylvania State University, 336 F. Supp. 3d 441, 450 (M.D. Pa. Aug. 21, 2018) (denying defendant’s motion to dismiss regarding Doe’s due process claim): “Mr. Doe’s main objection to this paper-only Investigative Model is that it prohibited him from telling his story directly to the panel, and from challenging Ms. Roe’s version of events before that panel . . . [i]n a case like this, however, where everyone agrees on virtually all salient facts except one—i.e., whether or not Ms. Roe consented to sexual activity with Mr. Doe—there is really only one consideration for the decision maker: credibility. After all, there were only two witnesses to the incident, with no other documentary evidence of the sexual encounter itself. As a result, in this Court’s view, the Investigative Model’s virtual embargo on the panel’s ability to assess that credibility raises constitutional concerns.”
Roe v. Adams-Gaston, No. 2:17-CV-945, 2018 WL 5306768 (S.D. Ohio Apr. 17, 2018) (granting a preliminary injunction):
1. “Roe did not lose her right to cross-examine the complainants by simply admitting that she engaged in sexual conduct with the complainants.” Id. at *9.
2. “But the hearing officer made those credibility determinations without the benefit of observing Roe (or anyone else) cross-examine the complainants—the only individuals present, other than Roe, when the purported sexual misconduct occurred.” Id. at *10.
3. “Given the central role cross-examination has played as a truth-seeking device in our justice system, and given that Defendants have not identified any authority supporting their position, the Court cannot conclude that a pre-hearing investigative process, such as OSU’s, is a constitutionally adequate substitute for cross-examination.” Id. at *11.
4. “In the absence of an injunction, Roe would continue to be expelled and suffer significant reputational harm based on the outcome of hearings in which she was denied the opportunity to cross-examine adverse witnesses.” Id. at *14.
Doe v. University of Oregon, No. 6:17-CV-01103-AA, 2018 WL 1474531, at *15 (D. Or. Mar. 26, 2018) (denying defendant’s MTD regarding Doe’s due process claim and 14th Amendment equal protection claim): “Plaintiff alleges significant and pervasive flaws in the procedures used to investigate and adjudicate Roe’s allegations, including that the University denied him a meaningful opportunity to cross-examine and confront witnesses . . . relied on an undisclosed expert whose report plaintiff never had the opportunity to refute[.]”
Gischel v. Univ. of Cincinnati, S.D. Ohio No. 1:17-CV-475, 2018 WL 9944998, at *8 (S.D. Ohio Jan. 23, 2018) (denying MTD for failure to state a Title IX claim): “Significantly, Gischel was denied the opportunity to cross-examine [Accuser] about her level of intoxication because the ARC panel refused to ask [Accuser] the questions Gischel had submitted on the topic.”
Doe v. Ohio State Univ., 311 F. Supp. 3d 881, 892 (S.D. Ohio 2018) (quotations omitted) (denying university MSJ): “In the context of student disciplinary hearings, cross-examination is essential to due process, … in a case that turns on a choice between believing an accuser and an accused. Here, John Doe couldn’t effectively cross-examine Jane Roe on a critical issue: her credibility, and specifically, her motive to lie. This particular situation may indeed demand the procedural protection of the university either correcting a false statement or providing the accused with the necessary information to impeach a critical witness.”
Doe v. Ainsley Carry et al., Case No. BS163736, at *14 (Cal. Sup. Ct. Dec. 20, 2017) (holding that USC did not provide a fair, neutral, and impartial investigation): “[Title IX investigator] Noonan never offered Petitioner an opportunity to submit questions to Roe. In fact, Noonan informed Petitioner that ‘this is not the discovery process’ and would not permit Petitioner to take notes during his interview, precluding Petitioner from drafting any questions to Roe at his meeting with Noonan.”
Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017) (finding that the University’s adjudicative hearing was prejudicial towards Doe): “The EA [External Adjudicator] appears to have misunderstood the policy allowing Petitioner to suggest additional questions to be asked in response to the Title IX Coordinator’s determination. The EA did not analyze whether the questions were appropriate and should be posed to Roe. Further, Respondent appears to have told Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule. Petitioner was unable to ask the EA to pose questions to Roe at the hearing. It is entirely unclear whether the EA would have made the same credibility determinations had Roe been questioned. The court finds that cumulatively, these conditions were prejudicial to Petitioner and denied him a fair hearing.”
Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017) (denying defendant’s MTD regarding plaintiff’s Title IX erroneous outcome claim): “Here, Plaintiff has adequately alleged facts that plausibly support at least a minimal inference of gender bias on the part of HWS. The allegations which support that inference include the following . . . alleg[ing] that his disciplinary proceedings put him at a disadvantage as compared to Jane Roe. For example, Plaintiff points to the fact that, during the proceeding, he was not allowed . . . to cross-examine Jane Roe[.]”
Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017) (granting Nokes’ motion for a preliminary injunction against defendants on procedural due process grounds): “John Nokes was never able to test the roommate’s memory or credibility, including any improper motives for testifying as such.”
Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016), adhered to on denial of reconsideration, D.N.J. No. CV 16-471 (KM) (JBC), 2017 WL 1508177 (D.N.J. Apr. 25, 2017), and aff’d in part, remanded in part, 699 Fed. Appx. 129 (3d Cir. 2017) (denying MTD for failure to state a Title IX claim): “The Complaint [alleges] that ‘[a]s a purported female victim, the Accuser’s allegations against the male plaintiffs were accepted as true without any investigation being performed and without the development of any facts or exculpatory evidence.’ And the Complaint does allege that Collick and Williams were not given the opportunity to respond or explain themselves, did not receive proper notice of the specific charges, were not permitted to confront or cross-examine their accuser, were not given a list of witnesses against them, and more generally were not afforded a thorough and impartial investigation.”
Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014) (denying the University’s MTD on First Amendment grounds seeking injunctive relief): “Neither Angela Gould nor Onna Gould was present at the hearing, and the only evidence presented by the university was the unsigned, two-page list of events which was allegedly lodged by Onna Gould.”

Campus Department of Education Sexual Assault Sexual Harassment Title IX

PR: ‘The Wolf Really Comes as a Wolf:’ SAVE Calls on White House to Withdraw Nomination of Catherine Lhamon

Post author By Edward Bartlett
Post date August 8, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

‘The Wolf Really Comes as a Wolf:’ SAVE Calls on White House to Withdraw Nomination of Catherine Lhamon

WASHINGTON / August 9, 2021 – On August 3, the Senate HELP Committee failed to approve the nomination of Catherine Lhamon to lead the Department of Education’s Office for Civil Rights (1). In response, SAVE is calling on the White House to withdraw the ill-conceived nomination.

No other nominee for a federal civil rights position, in recent memory, has:

Refused to affirm her unqualified support for due process. During the July 13 hearing, Lhamon repeatedly side-stepped direct questions whether she believes in basic due process procedures. She also admitted that she does not endorse the presumption of innocence (2).
In her previous work at the Department of Education, neutered the constitutionally rooted due process rights of so many persons….and later made the preposterous claim that she had been “aggressive in protecting accused students’ rights.” (3)
Addressed senators in an arrogant and condescending manner. During a 2014 hearing, Senator Lamar Alexander asked Lhamon who had given her the authority to rewrite the Title IX law through guidance documents. She haughtily replied, “You did, when I was confirmed.” (4)
Faced extensive bipartisan editorial opposition. As of July 31, liberal and conservative media outlets, organizations, and individual commentators had issued 35 statements opposing her nomination (5).

Ironically, Lhamon’s strongest critics have come from a left-of-center perspective. One liberal commentator tartly observed, “Lhamon has done more to obliterate the constitutional and civil rights of accused students and faculty in higher education over the last decade than perhaps any other American.” (6) Another editorialist summarized his critique with this characterization of Lhamon’s campus due process policies: “in this case the wolf really comes as a wolf.” (7)

Catherine Lhamon’s concept of civil rights does not represent a liberal or progressive viewpoint. Rather, her political philosophy is more accurately described as “extremist.”

Instead of suffering an embarrassing vote on the Senate floor, SAVE calls on the White House to promptly withdraw the nomination of Catherine Lhamon.

Citations:

DED Sexual Assault Directive Department of Education Sexual Assault Sexual Harassment Title IX

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness

Post author By Edward Bartlett
Post date May 13, 2021

‘We are a law school.’ Harvard Memo Reveals Turning Point in Battle to Restore Campus Fairness.

SAVE

May 13, 2021

On April 4, 2011 the Department of Education issued its notorious Dear Colleague Letter on sexual violence. Within months, SAVE wrote the Department urging that the unlawful policy be withdrawn. Following intense public criticism and numerous lawsuits against universities, on September 22, 2017 the Office for Civil Rights an nounced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence.

One of the most important milestones in the six-year quest for campus justice was a Statement signed by 28 faculty members at Harvard Law School (HLS). The faculty members wrote “to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.”

But how did this Statement come to pass? On September 10, 2014, faculty member Richard Parker circulated an internal memo that began with the words, “We are a law school.” The memo outlines six constitutional values that are threatened by draconian campus policies:

Procedural Due Process
Equal Protection / Gender Discrimination
Confrontation
Coerced Self-Incrimination
Free Speech
Academic Freedom / Free Association

A month later, the Harvard Statement was published. And the rest is history.

Professor Parker’s entire memo is reprinted with permission, below.

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

September 10, 2014

To: The Faculty

From: Richard Parker

We are a law school. As an institution, we have a long and deep tradition of both integrity and embarrassment. Our moments of collective integrity have come when we have thought and acted as a law school.

When our committee says that the Interim Sexual Harassment Policy and Procedures “meet legal requirements,” we know it’s never so simple. Where, in the committee’s report, is the grappling with ambiguity and argument that is the essence of doing law — and that we demand of our students? Is there no tension among “legal requirements”? Where is discussion of constitutional “requirements” or values?

When the dean says, “the discretionary ‘space’ for revisions is narrow,” we know enough, as law teachers, to be … respectfully skeptical.

Once again, we are indebted to Betsy and Janet and Phil for waking us up. For now, I won’t address the proposal of a disruption of our longstanding institutional processes – our small-c “constitutional” understanding of our responsibilities. Nor will I address the departures of the “policy” from the Supreme Court’s reading of Title IX. Instead, I’ll focus on big-C Constitutional values and requirements. And I won’t discuss them in depth. My aim is just to flag some issues and encourage you to engage, on your own as lawyers, with the legal rat king we face.

I’ll conclude with a few thoughts on the part we now ought to play as a law school — the only one at Harvard University.

SIX CONSTITUTIONAL VALUES

[1] Procedural Due Process

Wikipedia entry on Kangaroo Court: “A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as ‘a mock court in which the principles of law and justice are disregarded or perverted’.”

The Supreme Court tends to determine the process that is “due” along a sliding scale. It weighs administrative interests and the interests of one party against whatever is at stake for the other party along with our traditions of “law and justice.” Sometimes those traditions short circuit the weighing of interests [see Fuentes v. Shevin], but most often it is the interests of the “defendant”, so to speak, that focus the analysis. [see Goldberg v. Kelly] In the context of a SH proceeding, those interests are huge – so huge as to amount to a constitutionally protected “liberty” interest. [See Board of Regents v. Roth]

Please compare the procedures required in Goldberg – what were at stake were welfare benefits — with the proposed SH procedures:

The Court insisted on procedures with “ancient roots.” It emphasized the right to “an effective opportunity to defend.” That required, inter alia, notice of the “evidence” against one, especially vital when “credibility or veracity are at issue”; oral participation in a hearing before the decision-maker; cross-examination of witnesses [see below]; an “impartial decision-maker” – who must not have participated in making a prior determination in the case.

On every one of those counts the proposed procedures are either utterly ambiguous or fall short.

Of course, the SH “complainant” also has weighty interests at stake, and they may cut, to some extent, against certain traditional protections for the “respondent.” I’m not saying the resolution of this issue is a slam dunk. But if you think carefully about each point, I believe you’ll conclude that, on any fair balance, removed just a notch from the politics of the moment, the proposed procedures amount to a disappointing denial of due process of law

[2] Equal Protection/ Gender Discrimination

The SH policy and procedures are gender-neutral on their face. But their probable effect and the proclaimed purpose behind them are not. Hence, they discriminate by gender and must be subjected to “exacting” scrutiny under long-established Equal Protection norms. [See Personnel Administrator v. Feeney] It is no less well established that gender discrimination “against” men must be subjected to no less “exacting” scrutiny than gender-discrimination “against” women. [See Craig v. Boren]

To assess the gender discrimination worked by the proposed procedures before us, compare them with [a] those followed by other institutions in comparable contexts and [b] those followed by HLS in comparable contexts [eg, plagiarism] and in similar contexts in the past. And, most important, compare [c] the procedural opportunities provided “complainants” with those provided “respondents”.

Among the provisions to be evaluated in this light should be the lower standard of proof, the “complainant’s” opportunity to remain anonymous, the truncated role of the Ad Board and the faculty, the limited opportunity for appeal and the stunning finality of the Final Report.

As we all know, the gender bias of the proposed procedures is justified as necessary to make up for a contrary gender bias embedded in our culture and practices – a sort of affirmative action argument, though having to do with the distribution of punishments rather than benefits.

That similarity and that difference ought to invite your further scrutiny.

[3] Confrontation

In the context of terminating welfare benefits, the Goldberg Court said of the opportunity to confront witnesses, especially one’s accuser: “While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.”

Under the proposed SH procedures, the “respondent” is denied any such opportunity! [Indeed, it’s possible that the “complainant” may remain anonymous!]`

Can it be that the Investigating Team, conducting individual

Interviews, is so reliable that we should dispense with this vital feature of adversary procedure? Will they be so effectively “trained” as to guarantee their reliability? And what does that mean? I had thought a faculty full of lawyers was “trained” in a relevant respect. Can we be sure that the special SH “training” of those to whom we’re being asked to give up most of our responsibility won’t be … ideologically biased?

Or is this extraordinary feature of the proposed procedures driven by an extraordinary claim: the weakness/victimization of “complainants”? Most of them? Do we really believe that of our female students? Could it justify potential ruination of our male students’ lives? Do we have no “space” to resist and revise that?

[4] Coerced Self-Incrimination

Under the proposed procedures, when the Investigative Team notifies the “respondent” of the allegations against him, he has a week to submit a written “response”. Then, the Team will “request” separate “individual interviews” with him and the “complainant” and possibly with witnesses. They will also “request” separate a “follow-up interviews” with both the principal parties. They will then make their findings of fact and law, giving the parties a week to respond to it in writing. Then, they complete their Final Report.

Because many [or most] cases will be “she said/he said” disputes, he’ll know that he is in dire peril if he declines the “request” to respond. If the Team has only the “she said”, and a refusal to offer any ‘he said”, they probably will — the proposed procedures include no equivalent of the Griffin safeguards — count the latter against him. He will feel under terrific pressure — time pressure added to the prospect of punishment up to expulsion — to provide some “he said”… which may wind up dooming him, at least, to those very punishments. Long ago, in a situation involving discharge from office, the Supreme Court held that this kind of pressure, outside the criminal process, amounts to “coercion”. [See Garrity v. New Jersey]

This is, of course, the same kind coercion employed by Joe McCarthy and General Electric to force GE workers to speak in the 1950’s.

The proposed SH procedures do touch on the possibility of formal “incrimination” resulting from such “coercion”. The Final Report and/or evidence gathered by the Team may very well find its way to a DA. What the University’s proposed procedures say about this prospect is interesting.

Twice, the University says that [a] “when the allegations, if true, might constitute criminal conduct [b] the respondent “is hereby advised to seek legal counsel before making written or oral statements”. The key words are “might” and “hereby.” The latter makes it clear that the “trained’ Officers and Investigators will not offer him – he is as much our student as she is – any such advice. [Why not?] And that makes it clear that he — especially during the week that he has to respond after first receiving the allegation – will be at sea and quite probably unable to figure out the former and lack time to find counsel anyway.

There is one other relevant provision. There, the University says that, if an allegation “includes behavior or actions that are under review by law-enforcement authorities,” the Team may go ahead and impose “interim measures” [eg, suspension] but will “assess and reassess the timing” of its investigation “so that it does not compromise the criminal investigation.” Is this reassuring, from our lawyer’s point of view? The key word may be “are.” Isn’t the real problem that the Team’s interviews and Final Report may play into – and distort — a later criminal investigation? Why is nothing said about that?

[5] Free Speech

The University’s definition of “sexual harassment” includes “verbal” and “graphic” conduct “of a sexual nature” that is “unwelcome” – which it defines, inter alia, as “undesirable or offensive”. [It need not be “persistent or pervasive” creating a “hostile environment”. That goes beyond the reach of Title VII. Is there precedent for it? ]

Anyone who knows anything about First Amendment law knows that this text flies flagrantly in the face of established general free speech norms.

It must be that the University hopes to operate in a special “domain” where such norms may be overridden. [See Post, Citizens Divided] But the extent of the overriding cannot be unlimited. It must, presumably, be tailored to good reasons for setting up the special “domain” in the first place. And those who “manage” it should exercise wise “discretion” in deciding how far to go in suppressing speech.

How different, in relevant respect, is a college setting from a high school setting – and a graduate school from a college setting? What sorts and degrees of harassment have been common [how common?] in each type of school? In the whole USA? In each individual school? To what degree, for instance, has “unwelcome” verbal conduct, absent a hostile environment, been a problem?

Did the University drafters care? Our law school committee?

Our committee does offer a sort of proviso. “The policies and procedures,” it says, “uphold traditions of … uncensored debate on matters of public concern. They effect no compromise of freedom of thought, inquiry, or debate. Rather, they seek to ensure an environment in which education [etc] … are not corrupted by sexual and gender based harassment. Nothing in them shall be construed to abridge … principles of free speech’.

What will that be taken to mean? Its contrast – particularly, the contrast of the fourth sentence — with the definition of [non-environmental] “verbal harassment” is stark, to put it politely. Most probably, it will simply put off debate to each individual case. Is that the best we can do? … Oh, I forgot that since the Team’s Final Report is Final, we, the faculty, will not be allowed to engage in such debate …

How different is all this from the old “speech codes” which bit the dust under “principles of free speech”? [See also RAV v. St. Paul]

[6] Academic Freedom/Free Association

Several colleagues signed a brief arguing that the Solomon Amendment – pressuring us to allow military recruiters on our campus – violated principles of free association and academic freedom. Their argument failed. [It was, I believe, extremely weak since the Amendment’s impact on those values was too small.] [See Rumsfeld v. FAIR] We should look forward to hearing from those colleagues now.

Later, I’ll touch [below] on the government’s “conscription” of private schools of higher education to adopt and administer prescribed policies and procedures. This intrusion is plainly far broader and far deeper than any effected by the Solomon Amendment.

What’s more: enforcement of OCR’s directives will involve official investigations of these schools – like the one now targeting HLS. The investigations, in turn, will scoop up emails and memos by and to faculty members – like this one! – debating general matters, taking positions that may be unpopular, even “incorrect.” Thus they will invade “the intellectual life of a university” and do “grave harm”. [See Sweezy v. New Hampshire]

Again, our committee applies its wan proviso to “academic freedom.” [See above]

CONSTITUTIONAL REQUIREMENTS?

So far, I’ve addressed constitutional “values” – which should carry great weight in a law faculty. Now: Is HLS, as a private school, subject to constitutional “requirements” vindicating those “values”?

Throughout the country, male students at private universities – most recently, Brandeis — are filing lawsuits challenging SH policies and procedures on grounds, inter alia, of gender discrimination and denial of due process. More and more and more are on the way – coming our way.

I’ve been asked: Where is the “state [ie, federal government] action”? In my view, this is no problem.

Since the 1970’s, “state action” issues have tended to break into three parts. [a] Who “initiated” the “action” in question? Typically, it has been a private party – which sets up the issue of how to tie it to the state. But in this case it is the federal government itself that initiated the SH policy and procedures!

[b] How “specifically” has governmental power been used to effectuate the challenged aspects of the “action” in question? Has government participation been “focused” specifically on those aspects? In our case, the government has indeed specifically prescribed many of the features of the SH policies and procedures [eg, the preponderance standard] that are being challenged. To be sure, the University and HLS seem to want to add further features which are probably unconstitutional. But they have simply been elaborating on federal instructions. As quiet collaborators?

[c] … Or in fear of threatened federal penalties? This goes to the third issue: how much governmental power – intruding into the private institution – has been applied? In Harvard’s case, the threatened penalties are massive. And the federal intrusion is astonishing – to borrow a term from the law of federalism, the government proposes to “commandeer” not just the internal policymaking process, but also the internal disciplinary process, of private colleges and universities.

[In April 2014, Justice Kennedy’s plurality opinion in Schuette interpreted past “state action” decisions even more broadly – so that governmental “encouragement” or “authorization”, rather than enforcement,” may suffice.]

Try to imagine a more blatant instance of “state action” than the one before us …

The upshot: We will be sued. We probably will lose. [Our SH procedures and policies will go the way of the “speech codes” of yesteryear.] We deserve to lose. Much worse, we are actually inviting this constitutional condemnation!

WHAT PART SHOULD HLS NOW PLAY?

Resistance.

Harvard Law School’s history is full of stories of resistance –resistance by faculty members to the “authorities” in the name of legal values, often values of civil liberty. Some are about challenges to the dean. Think of Frankfurter and Pound. Or Byse and Griswold. As often, the stories – the ones that last – are about challenges to the University governing boards and President. Think of Frankfurter or Chaffee or Howe or Dershowitz. “The Trial at the Harvard Club.”

My point doesn’t have to do with the details or even the truth of the stories. Instead, it has to do with their staying power, their power to make many faculty members and alumni a bit proud to be associated with the School. These are the stories we are likely to tell when recruiting new students – not the ones about our passivity, our helpful rule-following. Not the ones where we act as obedient “employees” of the Central Administration rather than tenured “officers” of the University. Not the ones where we abandon our tradition of institutional autonomy. And not the ones where we show we don’t take seriously – because we don’t act on – the values we pretend to take seriously in our classes.

There is one story in particular that we might profit from now. It has to do with a concerted effort by the federal government to reach inside colleges and universities in order to correct a pathology believed to fester there. It was an effort that involved conscription of Harvard University officials, who then commandeered its processes and pressured the schools to fall in line.

It was, of course, in the early 1950’s. The pathology was the supposed “communist infiltration of education.” Instead of the Education Department, it was the FBI that was the point of the federal spear. The officials conscripted included both President Pusey and McGeorge Bundy, dean of the college. The appointments process was commandeered, going so far as to throw out lowly lecturers. [See Sigmund Diamond, Compromised Campus] The intrusion extended into the Law School – resulting, most notoriously, in the removal from the law review of a student who said he’d refuse to answer certain questions about his political activity.

The dean was Erwin Griswold. His actual behavior in the circumstance is not entirely clear. In fact, it appears that in the law review affair he played the good soldier. But shortly thereafter he went to Worcester and gave the first of a series of 1954 speeches explaining and justifying the exercise of rights under the Fifth Amendment. In 1955, he published them as The Fifth Amendment Today. It made his national reputation. Google him: he became a man of “courage,” “a champion of individual liberty.” Upon his death, HLS issued a statement recalling him as “a foe of McCarthyism”. [Print the legend.] Imagine if he had done more!

My point, again, isn’t to equate the SH policy and procedures with McCarthyism. It is, instead, to speak to our sense of self-respect, our integrity as a law school.

If you agree with some of what we critics have to say about the proposed SH policy and procedures, please be aware that we can resist. We ought to.

Campus DED Sexual Assault Directive Department of Education Sexual Assault

Did the 2011 DCL Contribute to University Failures in Staff-on-Student Sex Scandals?

Post author By Edward Bartlett
Post date April 26, 2021

Did the 2011 DCL Contribute to University Failures in Staff-on-Student Sex Scandals?

SAVE

April 26, 2021

Much has been written about the failures of the Dear Colleague Letter issued by the Department of Education in 2011, including:

No demonstrated improvement in the reporting of sexual assault
An increase in the rate of sexual assaults
Lawsuits by wrongfully accused students
Millions of dollars spent by university Title IX programs

Three highly publicized cases of staff-on-student sexual abuse suggest another shortcoming of the DCL policy:

Michigan State University: “The U.S. Education Department fined Michigan State University $4.5 million in September for failing to respond to sexual assault complaints against Nassar. The same day, MSU President Samuel Stanley Jr. announced the resignation of Provost June Youatt, saying the investigation findings showed she and former President Lou Anna Simon “failed to take appropriate action on behalf of the university to address reports of inappropriate behavior and conduct.” according to an account of the incident.”

University of Southern California: “Since the release of the initial Los Angeles Times article published on May 16, 2018, hundreds of USC students and alumni have come forward with allegations of sexual abuse, assault, battery, and harassment. Over the years, many patients reported that Tyndall was unprofessional, creepy, or made them feel “uncomfortable and violated.” There were multiple requests to change providers and not see Tyndall again. Complaints were generally addressed internally by USC Engemann Student Health Center executive director, Larry Neinstein.”

UCLA: “James Heaps, 67, a one-time gynecologist who is at the center of the scandal at UCLA, also still faces criminal charges for his actions during his 1983-2019 career at the university, in its student health center and at its medical center. The Los Angeles Times reported that the doctor was first arrested in June 2019 for sexually touching two patients in 2017….The UC system said that it has improved procedures and will undertake more reforms as part of the class-action settlement, the newspaper reported:

“UCLA agreed to create a new process for investigating allegations of sexual assault, harassment, and misconduct. It must also implement a formal chaperone policy for patients. It must also initiate a training program on boundaries and ensure that patients are informed about reporting misconduct.”

While the staffers’ sexual abuse of students began during the years prior to the issuance of the 2011 DCL, university officials consistently failed to take appropriate actions in response to student complaints made during the years following release of the DCL. This reveals that the Dear Colleague Letter did not improve university responses to complaints of staff-on-student sexual abuse. Indeed, the hysteria about student-on-student sexual assault, which permeated campuses during the past decade, may have diverted attention from the burgeoning problem of staff-on-student sexual abuse.

Campus Department of Education Sexual Assault Sexual Harassment Title IX

PR: Liberal Voices Call for Campus Due Process, Reject Return to Former DCL Policy

Post author By Edward Bartlett
Post date March 30, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Liberal Voices Call for Campus Due Process, Reject Return to Former DCL Policy

WASHINGTON / March 30, 2021 – On March 8, President Joe Biden issued an Executive Order instructing the Department of Education to consider back-tracking on campus due process protections (1). In response, numerous editorials have been published supportive of campus due process, rejecting the excesses of the 2011 Dear Colleague Letter (DCL) policy on sexual violence (2).

On March 22, the Editorial Board of the Los Angeles Times criticized the Obama-era policy, which “ignored common traditions of due process for the accused,” causing colleges to swing too hard in favoring accusers. The essay urged the Biden policy review to be “thoughtful rather than reactive.” (3)

Three days later, former Democratic presidential candidate Michael Bloomberg penned an editorial highlighting how the 2011 policy had shortchanged defendants by failing to “uphold due process.” Bloomberg also noted that “Alleged victims said that schools failed to investigate their claims professionally.” (4)

Then on March 28, the Washington Post Editorial Board weighed in. The editorial highlighted the due process deficiencies with the Dear Colleague Letter, which gave rise to numerous “successful court challenges.” The Editorial Board affirmed the usefulness of the Biden review, and warned, “there are some things worth saving in these educational rules – and so the administration should tread carefully.” (5)

In addition, the New York Times published a news article on March 8 on the Biden policy review and invited readers to express their opinions (6). A review of all reader comments posted on March 9 reveals the vast majority of NY Times’ readers, many of whom identify as liberal, are supportive of campus due process. This comment by “R.P.” in Bridgewater, NJ received the largest number of Recommends:

“This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?” (7) [bolding in original]

Seven separate public opinion polls have been conducted in recent years, all documenting that a strong majority of Americans support due process on campus (8). The most recent poll, commissioned by SAVE, found strong bipartisan support for campus fairness (9):

“Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves.” Agree: Democrats: 80%, Republicans: 88%
“Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Agree: Democrats: 66%, Republicans: 75%
“Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Agree: Democrats: 71%, Republicans: 86%

SAVE urges college officials to continue to fully implement the new Title IX regulation, which upholds rights and protections for both complainants and the accused.

Links:

Campus Department of Education Department of Justice Discrimination Title IX

BOLD program under investigation for Title IX complaint

Post author By Deanna Brown
Post date February 16, 2021

By Ashley Stalnecker — Senior Writer, The Ithacan

Published: February 10, 2021

The U.S. Office for Civil Rights has opened an investigation against Ithaca College’s BOLD Women’s Leadership Network after receiving a complaint of a Title IX violation by a University of Michigan professor.

Mark Perry, professor of economics and finance at the University of Michigan, filed a complaint against the BOLD Women’s Leadership Network in August on the basis of sex discrimination. The BOLD Women’s Leadership Network is a leadership development program that awards a two-year scholarship to students who identify as women, particularly those who have been underrepresented in higher education.

Samantha Elebiary, BOLD Program Director at the college, said that she cannot comment on the status of an ongoing investigation but that the college will cooperate with the Office for Civil Rights.

Perry said the BOLD Women’s Leadership Network violates Title IX policy, which states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance,” according to the U.S. Department of Education website. Because the college allows students to apply federal money to their tuition through the Free Application for Federal Student Aid, the college is required to comply with Title IX policy.

The BOLD Women’s Leadership Network is funded by the Pussycat Foundation, which sets the application criteria for participating colleges. The program requires that applicants identify as women, but Elebiary said nonbinary identifying students are not discouraged from applying. Elebiary said students are not required to disclose their gender identity on the application.

President Shirley M. Collado brought the BOLD Women’s Leadership Network to the college in 2017, shortly after she became president of the college. Collado founded the program when she worked at Rutgers University–Newark. Elebiary started working at the college as a residence director in 2017 and began working with BOLD in 2018.

Collado has not responded to requests for comment.

At the All-College Gathering on Feb. 9, Collado said the program has received over $4 million in funding since she brought the program to the college.

“The main goal is to provide that additional professional leadership development to students who identify as women or female and are in their junior and senior year,” Elebiary said.

Perry said he has filed 283 Title IX complaints. A majority of these complaints are against colleges with programs or spaces exclusive to women. He said he has filed complaints against BOLD Women’s Leadership Network programs at Middlebury College, The College of Saint Rose, University of Connecticut and Colby-Sawyer College. The only college that hosts a BOLD Women’s Leadership Network program that he has not filed a complaint against is Rutgers University-Newark.

His complaint against The College of Saint Rose was also opened for investigation by the Office for Civil Rights. The other complaints are still pending investigation.

Perry said he believes the BOLD Women’s Leadership Network is in violation of Title IX because there is not a similar program for men, and men are ineligible for the current program.

“It’s not just illegal, but it seems unethical to have federal civil rights legislation that’s only enforced selectively and with a double standard,” Perry said.

At this time, Elebiary said the college does not have any plans to alter the structure of the BOLD Women’s Leadership Network.

The college hosts leadership scholarships that are open to all genders like the Leadership Scholar Program Award, the Martin Luther King Scholar Program and the Park Scholar Program. The college also offers leadership opportunities to all students through the Student Leadership Institute organized by the Office of Student Engagement. Student-athletes can also participate in the Ithaca College Sports Leadership Academy, a program that coaches its members on developing individual and team leadership skills.

Perry said he believes women do not need special programming for leadership development because they attend college at a higher rate than men. Women earned more than 57% of undergraduate degrees and 59% of master’s degrees in 2018, according to the Center for American Progress.

While women make up 50.8% of the U.S. population, they are still largely underrepresented in leadership, according to the Center for American Progress.

Ashley Stalnecker can be reached at astalnecker@ithaca.edu or via Twitter: @Ashley_Stal

BOLD program under investigation for Title IX complaint | The Ithacan

Department of Education Department of Justice Due Process Law & Justice Legal Office for Civil Rights Sexual Assault Title IX

The Biden Plan For Title IX Must Protect Due Process

Post author By Deanna Brown
Post date February 1, 2021

By: MICHAEL POLIAKOFF | January 25, 2021

The 18th-century British jurist William Blackstone pronounced, “It is better that ten guilty persons escape, than that one innocent suffer.” There are few principles of law we hold more sacred than “innocent until proven guilty.” For most of the last decade, however, this doctrine has had negligible impact in matters of campus sexual assault.

There are policies of the previous administration that President Joe Biden is already in the process of overturning or altering. It would be well, however, for him to reconsider his campaign promise to “return to and then build on” the Obama administration’s Title IX policies, which led to more than 500 investigations of accused students and shattered an untold number of lives. Having himself been the object of unproven allegations of sexual assault, he must look into his own heart before reinstituting campus procedures that make a mockery of justice.

The victim of sexual assault is likely to bear the emotional and psychological scars for years to come. It is a moral imperative for an institution of learning to protect students from the trauma that ensues. But the mirror image of that horror happens when an innocent person is unjustly found guilty of sexual assault and punished – typically by expulsion or long-term suspension – by his college. The reputational scars and career damage may last a lifetime. Due process provides a greater likelihood that punishment will fall on the guilty and not those wrongfully accused.

There are many instances in which the courts have found wrongful prosecution. Sometimes the case hinged on spectacular mendacity, like the invented account of a brutal gang rape in a University of Virginia fraternity house in 2014 that provided Rolling Stone with a fraudulent cover story. Or the dishonest prosecution launched by an opportunistic district attorney—later disbarred—of Duke lacrosse players that showed how quickly a prestigious university, from the president on down, called for punishment when no crime was committed.

Last spring, U.S. Secretary of Education Betsy DeVos signed a Final Rule that provided key definitions and regulations for the enforcement of Title IX when students accuse other students of campus sexual assault. In addition to the rule’s protection of alleged victims, including reporting procedures and survivor support, it notably provides to the accused the rights to present, cross-examine, and challenge evidence in campus hearings.

You do not have to be a constitutional scholar to recognize that Secretary DeVos was right to redress a longstanding ethical and procedural abuse. The Biden administration must not reverse her important work and bring back the guilt-presuming process that the Obama administration demanded in its April 4, 2011, “Dear Colleague Letter” and in subsequent, egregious misinterpretations of Title IX.

These extra-legal Department of Education decrees, which never went through a formal regulatory review process, pressured universities to stack proceedings against accused students. They even threatened to take away institutions’ federal funding if they allowed cross-examination of accusers in campus hearings. Thus, did the Obama administration deprive accused students of what the Supreme Court has repeatedly called “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

“Innocent until proven guilty” does not fare well against dramatic claims of sexual violence. At the extreme end, recall then-congressman Jared Polis, now governor, who inverted Blackstone’s wisdom by stating in a House higher education subcommittee meeting on sexual assault: “If there are 10 people who have been accused, and under a reasonable likelihood standard, maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transfer to another university, for crying out loud.”

For crying out loud, indeed. What college or university is going to admit a person, innocent or not, who has been expelled on a charge of sexual assault? What company, scholarship foundation, or professional school is going to take that person whose academic record will forever show expulsion or even suspension for sexual assault?

President Biden should consider documented cases like that of the Amherst student who was expelled based on a woman’s claim that he had forced her into sexual contact more than 20 months before—even though her own text messages proved that in fact she had been the active party when he was blackout drunk in her room.

Had the accusations hurled against President Biden on the campaign trail been leveled years ago against College Joe and adjudicated under a campus regime like the one later decreed by the Obama-Biden administration, he would probably have had no meaningful chance to defend himself or clear his name. His career and American history would have been entirely different.

Michael Poliakoff is president of the American Council of Trustees and Alumni, an independent, non-profit organization committed to academic freedom, excellence, and accountability at America’s colleges and universities. He previously served as vice president for academic affairs and research at the University of Colorado and in senior roles at the National Endowment for the Humanities and the Pennsylvania Department of Education. He has taught at Georgetown University, George Washington University, Hillsdale College, the University of Illinois at Chicago, and Wellesley College. He received his undergraduate degree magna cum laude from Yale University, a Class I Honours B.A. at Oxford University as a Rhodes Scholar, and a Ph.D. in classical studies from the University of Michigan.

The Biden Plan For Title IX Must Protect Due Process (forbes.com)

Campus Civil Rights Department of Education Due Process Law & Justice Legal Office for Civil Rights Title IX

Keep Cross-Examination Out of College Sexual-Assault Cases

Post author By Deanna Brown
Post date February 1, 2021

By Suzanne B. Goldberg
JANUARY 10, 2019

Requiring cross-examination in campus sexual-misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-examination “the greatest legal engine ever invented for the discovery of truth.” Although this new mandate might seem at first like a good idea, a closer look shows otherwise.

The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.

Traditionally, students involved in college-misconduct processes have been permitted to choose an adviser to provide them with support and information. In many instances, peer advisers, faculty members, and even parents have ably filled that role. Likewise, at most colleges, neutral faculty members or administrators are assigned responsibility for asking questions and otherwise investigating to determine whether wrongdoing occurred.

But the new regulations would change this by requiring colleges to allow each student’s adviser to do the questioning of the other student or anyone else involved in the case — not as a neutral party but as an adversary. This means that parent-advisers would have government-sanctioned authority to question their child’s accuser or alleged assailant, and a student could wind up cross-examining another student, even on the same small campus.
One might think that colleges would voluntarily assign faculty members and administrators to take that responsibility. But it is one thing for a faculty or staff member to inform and support a student, as many currently do, and quite another to adversarially cross-examine a student who is also part of his or her own institution. Individual educators, as well as the college, may see this as conflicting with their responsibility to support all students. Still, the regulations would require institutions to provide students with an adviser to do the cross-examining if a student does not bring his or her own adviser to a hearing.

Training these campus-based advisers would pose additional challenges. As a general matter, preparing administrators and professors to conduct investigations and hearings in a fair and impartial way fits well with what colleges already do in committing to value all students equally. But training in techniques for casting doubt on a student’s credibility, which is an essential function of cross-examination, cuts in a different direction.

To be sure, some students will hire lawyers or find a family friend to help. For many, though, that option will be unaffordable or unavailable. This disparity between students may not be as significant when advisers play a quiet, supporting role, but it almost certainly will amplify inequities and increase the risk of obscuring efforts to learn the truth of what happened when a lawyer questions one student and a nonlawyer questions the other.

Through my work on these issues nationally, I have heard some advocates propose that colleges provide students with lawyers when charges are serious even if they do not do so for other serious misconduct cases. Even the Department of Education has not gone that far, however, perhaps recognizing that most American colleges could not do this without diverting funds from financial aid, faculty hiring, and other core educational needs. Of more than 4,000 higher-education institutions in the United States, few have lawyers on staff to serve in that role, and even fewer (just over 200) have accredited law schools with faculty members or students who might pitch in.

Still, some say adversarial questioning is necessary for campus sexual-misconduct cases, even when it is not used for other student-misconduct matters such as those involving illicit drug use, vandalism, and nonsexual assault. As one court wrote, adversarial questioning “takes aim at credibility like no other procedural device” because it enables the accused to “probe the witness’s story to test her memory, intelligence, or possible ulterior motives.”

But questions need not be adversarial to assess credibility. Nearly all courts to consider the issue have found fairness can be fully achieved through questioning by a neutral college administrator. And although the Department of Education says that its proposal will avoid “any unnecessary trauma” that might come from students questioning one another directly, some advocates argue that concerns about trauma remain strong and will probably deter students — especially those who are afraid of the accused student — from filing complaints at all. Exacerbating the risks here, the proposed regulations would forbid institutions from relying on statements of students who decide they are unable, for emotional or other reasons, to subject themselves to cross-examination.

More broadly, it is a serious question whether cross-examination is even effective in this setting. Many scholars say that aggressive, adversarial questioning is more likely to distort reality than enable truth-telling. Research shows, for example, that a witness’s nervous or stumbling response to adversarial questioning is more likely an ordinary human reaction to stress than an indicator of false testimony.
Since the Department of Education has stressed its respect for colleges’ expertise, it might consider commissioning a study to test the effectiveness and risks of campus cross-examination. But to override current, experience-based procedures and impose a national cross-examination rule across all higher-education institutions in the United States would undermine, not enhance, the fair and impartial treatment that all students deserve.

Suzanne B. Goldberg is a law professor at Columbia University. She is also director of the law school’s Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic.

A version of this article appeared in the January 18, 2019, issue

Keep Cross-Examination Out of College Sexual-Assault Cases (chronicle.com)

Department of Education Department of Justice Law & Justice Legal Title IX

Biden faces Title IX battle complicated by politics and his own history

Post author By Deanna Brown
Post date January 22, 2021

A Long and Complicated Road Ahead

Improving how colleges respond to sexual assault on campus is one of President Biden’s top priorities. But it’s likely to be an uphill battle

By Greta Anderson, January 22, 2021

Joe Biden entered the White House this week with high and wide-ranging expectations from higher education leaders, advocates for survivors of sexual violence and students for how his new administration will require colleges to handle and reduce sexual assault on college campuses.

In addition to addressing the public health and economic consequences of the pandemic, supporting the ongoing movement for social justice and equity for Black Americans, and trying to unite a politically polarized population, President Biden has also promised to strengthen Title IX, the law prohibiting sex discrimination in federally funded institutions, which mandates how colleges should respond to student reports of sexual misconduct.

Through his time as a senator and vice president, violence against women and the prevalence of sexual assault has remained a “signature issue” and something the president “cares deeply about,” said Shep Melnick, a professor of political science at Boston College and author The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

Melnick noted that Biden was a “major factor” in the Obama administration’s emphasis on reducing campus sexual assault. As vice president during that eight-year period, Biden led the administration’s It’s On Us campaign and visited colleges to promote awareness of the problem and advocate for prevention strategies, such as bystander intervention, or encouraging and training students, particularly young men, to intervene when they see a classmate in a dangerous situation. He wrote the 1990 Violence Against Women Act, which aimed to protect women from gender-based violence.

Aya Gruber, a law professor at the University of Colorado, Boulder, who writes about feminism and the criminal justice system, recalled when Biden said, “If a man raised his hand to a woman, you had the job to kick the living crap out of him,” during a White House event promoting men’s involvement in the fight against campus sexual assault.

Protecting women and strongly punishing those who commit sexual violence is “part of Biden’s brand,” Gruber said. His past rhetoric and policy positions on campus sexual assault offer some idea of how Biden’s Department of Education will address the issue. He has so far vowed to “immediately” put an end to the Title IX regulations issued by former secretary of education Betsy DeVos, which dramatically shifted how colleges respond to allegations of sexual misconduct.

The DeVos regulations were incessantly criticized and challenged in court by advocates for survivors of sexual assault, who took issue with mandates for colleges to require students who are opposing parties in sexual misconduct cases to be cross-examined by a third party “advocate” at campus hearings for sexual assault investigations. The regulations also exclude sexual misconduct that occurs off campus from oversight under Title IX and apply a more limited definition of sexual harassment.

Several women’s groups and organizations that support survivors’ rights, such as the advocacy group Know Your IX, want the DeVos regulations gone. They say students who are sexually assaulted or harassed were better off under the 2011 Title IX guidance issued by the Obama administration, when institutions were advised to investigate and adjudicate all reports of sexual misconduct, “regardless of where the conduct occurred.” The guidance, commonly referred to as the 2011 Dear Colleague letter, said that a single incident of sexual harassment could prompt a Title IX investigation and that institutions must use a preponderance of the evidence standard when determining a student or staff member’s guilt.

DeVos rescinded the 2011 guidance during her first months as education secretary in 2017. Biden has pledged to reinstate it. His plan to address violence against women published online says his administration will “restore” the 2011 guidance that “outlined for schools how to fairly conduct Title IX proceedings.”

Biden’s campaign website, which details his agenda for women’s issues, says the Education Department under DeVos has “rolled back the clock and given colleges a green light to ignore sexual violence and strip survivors of their civil rights under Title IX, guaranteeing that college campuses will be less safe for our nation’s young people.”

His administration will “stand on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld,” the comments on the website say.

Civil liberties groups and advocates for the rights of students accused of sexual misconduct are dismayed by Biden’s stated intention to reinstate the 2011 guidance. They argue that the guidance led to colleges violating free speech and due process rights. Supporters of the DeVos regulations, such as the Foundation for Individual Rights in Education and SAVE, a Washington, D.C., area-based organization that advocates for constitutional protections during college disciplinary proceedings, say the 2011 guidance was grossly unfair.

Edward Bartlett, founder and president of SAVE, said the 2011 guidance was ineffective at reducing sexual misconduct and infringed on student rights. He said the hundreds of federal and state lawsuits filed after the issuance of the 2011 letter prove it did not help those who report sexual misconduct or those accused of it, he said.

Bartlett noted that a Campus Climate Survey on Sexual Assault and Misconduct by the Association of American Universities found a slight uptick in rates of sexual assault at top colleges between 2015 and 2019, and reporting of incidents remained low throughout this time period. Two surveys were conducted, one in 2015, which involved 27 colleges, and another in 2019, in which 33 colleges participated. The 2019 survey found the overall rate of sexual assault was 13 percent for all students and nearly 26 percent for women undergraduates at those colleges, according to an AAU report about the data. There was a 3 percent increase in the rate of sexual assault among undergraduate women between 2015 and 2019 at the colleges that participated in the surveys, the AAU report said.

“Not only did they find no improvement, they found it got worse,” Bartlett said.

Melnick, the Boston College professor, said the AAU survey and other data available about the prevalence of campus sexual assault are not strong enough to conclude whether or not the 2011 guidance was effective. There isn’t any empirical evidence that suggests that Title IX guidance issued during the Obama administration made the issue worse, he said. But if the Biden administration intends to revert to the former guidance, it may soon have to provide data to support that decision, Melnick said.

“The current debate over evidence — inconclusive as it is — will loom larger in the future,” he said in an email.

In the years since the guidance, several federal appeals courts have also struck down parts of the Title IX processes that many colleges developed following the Obama administration’s guidelines, deeming them “unfair” and sometimes discriminatory against men.

Experts who study Title IX and advise institutions on how to implement the law said colleges would be better off if the Department of Education takes a forward-looking approach to combating campus sexual misconduct rather than reverting to the 2011 guidance.

Jake Sapp, a Title IX legal researcher for the Stetson University Center for Excellence in Higher Education Law and Policy, said court decisions that favored students accused of sexual misconduct were a direct response to the 2011 guidance, which didn’t set clear standards for due process.

The DeVos regulations rely heavily on these federal court opinions and went through a formal rule-making process that can’t simply be revoked, as some advocacy groups for sexual assault survivors are urging Biden to do, Sapp said. Even the most contested item in the DeVos regulations — the cross-examination requirement — has been backed by several appeals court decisions and will be applicable to colleges in those judicial circuits even if the Biden administration stops enforcing the regulations, he said.

“The administration can set a regulatory floor, but they can’t build a roof over what the court’s jurisdiction is,” he said. “They can’t say colleges can’t provide this due process protection when a federal court says that you already have to have that.”

Sage Carson, manager of Know Your IX, endorses halting enforcement of the DeVos regulations, but she said the challenges student survivors face have changed significantly in the decade since the 2011 guidance was issued and returning to it isn’t going to effectively address those new challenges.

“Survivors on campus are facing horrendous obstacles to getting support from their school that are nothing like the Obama administration was dealing with,” Carson said. “My fear is that the Biden administration will come in and say, ‘We’ve dealt with this issue before, we know how to do this,’ and not take the time to understand the needs of students right now in this unique moment.”

Carson described obstacles such as a “huge uptick” in students accused of sexual assault filing retaliatory countercomplaints or defamation lawsuits against their accusers. These actions can mean survivors do not receive the support they need from their college or end up in debt from legal fees, she said.

Colleges and students have also been through bouts of “whiplash” as they’ve had to make policy adjustments based on the political positions of the president in office, Carson said. Some institutions have been consistently “awful” on protecting students from sexual misconduct, but other institutions attempted to comply with the Trump administration’s requirements and experienced “confusion, frustration and a lack of resources,” Carson said.

The lack of clarity and conflicting policies and rhetoric has frustrated students and discouraged some from filing sexual misconduct reports, she said.

“There will be schools that are strained by this back-and-forth,” she said. “To restore confidence in survivors turning to their schools, this administration is going to have to be very transparent about what students can expect … This is going to be a tough, uphill battle.”

Peter McDonough, vice president and general counsel for the American Council on Education, said college administrators recognize that their institutions can’t simply go back to the 2011 guidance. There are new decisions by federal courts that many institutions must follow, new state laws that change how campuses respond to sexual misconduct and resolution agreements between the Education Department and individual colleges that outline how those colleges must improve their Title IX policies and procedures, McDonough said. The DeVos regulations are just one piece of the puzzle, and eliminating them doesn’t change how colleges must deal with sexual misconduct moving forward, he said.

College officials would appreciate “more flexibility” from the Biden administration — such as guidance that loosens some requirements of the DeVos regulations — but they also spent months pouring time and energy into adjusting their policies to meet the new standards during the coronavirus pandemic, McDonough said.

“We’re tired,” he said. “Don’t give us one more thing to do this academic year. Let us get our students back to as close as we can to normal.”

The Biden administration should begin the work of creating new Title IX regulations that strike a balance for all sides, including those who experience sexual assault, those accused of it and the college officials that are legally responsible for carrying out the procedures, McDonough said. What college officials are hoping for is a “thoughtful” look at how to amend or replace the DeVos regulations with what all sides feel is the fairest possible process, he said.

“Otherwise we’re going to boomerang for years,” McDonough said. “How are we going to get ourselves, as a broad community, to a place where we feel like what we’ve got is pretty fair? That rhetorical question needs to guide a fair amount of the decision making in this next administration.”

Sapp, who is also deputy Title IX coordinator at Austin College in Sherman, Tex., said Biden and the Education Department officials working under him should not focus on rhetoric painting the DeVos regulations as an “attack on survivors” and listen to more than just one line of thought on the issue. Sapp believes the DeVos regulations are a “good starting point” for Biden to build on, but that the politics surrounding them will deter Biden from publicly recognizing that.

“Part of what Biden has demonstrated is that he’s open to diversity of ideas and thought,” Sapp said. “That needs to be demonstrated in the ideas that he has on Title IX … If you’re going to put forward a Title IX regulation that’s going to stand the test of time, it’s going to have to have input from across the board.”

Gruber, the University of Colorado law professor, is not convinced there can be a compromise on Title IX.

“Whatever he does, somebody’s not going to be happy,” she said.

The Biden administration’s path to well-received Title IX requirements is further complicated by outstanding allegations of sexual misconduct against Biden. Some student leaders of college sexual assault prevention groups said the allegations made them feel conflicted about voting for Biden in November, which they felt they had to do in order to reverse the Trump administration’s actions on Title IX. But Carson, of Know Your IX, said that she and other survivors have not forgotten the story of Tara Reade, the woman who said she was sexually assaulted by Biden in 1993, and others who said he inappropriately touched them.

“That’s something that our team is grappling with every day as we approach this administration,” Carson said. “That’s something we’re going to remember moving forward. We should always be supporting equity and supporting survivors, not just when it’s convenient.”

Biden faces Title IX battle complicated by politics and his own history (insidehighered.com)

Department of Education Department of Justice Discrimination Law & Justice Legal Office for Civil Rights Title IX

Department of Education says schools can’t use ‘national statistics’ to justify women-only scholarships, programs

Post author By Deanna Brown
Post date January 16, 2021

GREG PIPER – ASSOCIATE EDITOR, THE COLLEGE FIX

JANUARY 14, 2021

Don’t give ‘special status’ to outside groups with sex restrictions, either

Largely thanks to the efforts of University of Michigan-Flint economist Mark Perry, schools across the country are facing scrutiny from the Department for Education for offering programs and scholarships that exclude males from eligibility.

His flurry of Title IX complaints indisputably played a significant role in its Office for Civil Rights’ creation of two new “issue codes” last year to track complaints against “single sex campus programs” and “single sex scholarships.”

On Thursday, the Office for Civil Rights went a step further by releasing “technical assistance” on its interpretation of Title IX with respect to such programs and scholarships.

Much of the material is not new to people who follow Title IX complaints and resolutions, and the document explicitly tells institutions that it does not have “the force and effect of law” and is “not meant to bind the public or regulated entities in any way.” (The Obama administration, by contrast, explicitly threatened institutions for not following its nonbinding Title IX guidance.)

But for K-12 schools and colleges that have long acted as if Title IX didn’t apply to activities with the word “girls” in the title, and depictions of only females in their materials, the 11-page document makes plain that it does.

One of the most popular reasons for offering a female-only program or scholarship – supposed underrepresentation – is severely restricted under the feds’ interpretation.

While they can restrict eligibility by sex for “remedial or affirmative action” in “limited circumstances,” schools are still prohibited from using “sex-based quotas.” Even more sweeping, they cannot “rely on national statistics as evidence of limited participation.”

Rather, schools must “clearly articulate why the particular sex-based scholarship or program was necessary to overcome the conditions in its own education program or activity which resulted in limited participation therein“:

As part of this analysis, OCR evaluates whether the classification based on sex was supported by an “exceedingly persuasive justification,” based on a substantial relationship between the classification and an important governmental or educational objective.

Schools targeted with complaints will have to provide “a specific assessment of the facts and circumstances surrounding the scholarship or other program” to OCR. The office will analyze whether the “purported remedial discrimination” has any relation to “overcoming the effects of those conditions.”

It flatly warns schools that their sex-based scholarships justified as affirmative action “may never rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

Schools should also be wary of titles for scholarships and programs that are “reasonably perceived” as stating a “preference or restriction” based on sex. Otherwise they must “clearly state in their public-facing communications,” such as websites and recruiting materials, that such preference or restriction does not exist, despite the title.

OCR notes that it has reviewed scholarship applications and “awardee data, disaggregated by sex,” to discern whether schools have “communicated effectively” about their nondiscrimination policies.

Several sections in the question-and-answer format are answered “Generally, no” on the appropriateness of sex preferences and restrictions. One of them is whether schools can even advertise or promote third-party scholarships, such as by listing them on its website:

OCR expects that schools will take reasonable steps to verify that the sponsoring organization’s or person’s rules for determining awards do not, expressly or in fact, discriminate on the basis sex.

The guidance also cautions schools about providing “significant assistance” to third parties that offer “non-funded” advancement programs, such as fellowships, with sex preferences or restrictions.

Such assistance has historically been interpreted to include giving third parties “special status or privileges” not offered to “all community organizations,” such as by designating faculty sponsors or letting parties use campus facilities “at less than fair market value.” Simply listing a non-funded program on its website, however, is not “significant assistance.”

Some of the guidance is highly nuanced, particularly with respect to elementary and secondary schools. But other parts are direct and unambiguous, such as the section on sex-based restrictions on school facilities:

OCR has opened an investigation into whether a university that offered a designated “women’s only” workout space in its gym facilities violated Title IX by restricting that space to members of only one sex.

Read the guidance.

Department of Education says schools can’t use ‘national statistics’ to justify women-only scholarships, programs | The College Fix