Category: Due Process

PR: ALI Drives Another Spike into the ‘Affirmative Consent’ Coffin

Post author By Edward Bartlett
Post date August 18, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

ALI Drives Another Spike into the ‘Affirmative Consent’ Coffin

WASHINGTON / August 18, 2021 – The American Law Institute (ALI) has conclusively rejected an “affirmative consent” provision that would have fundamentally reshaped the sexual practices of millions of Americans. At its recent annual meeting, the ALI membership ended a decade-long, sometimes contentious debate by approving a “willingness” standard over an “affirmative consent” concept (1).

Beginning in 2012, some ALI members began pushing to revise the sex crimes provisions of its Model Penal Code. The proposed changes would have endorsed a so-called “affirmative consent” standard, which was defined as, “a person’s positive agreement, communicated by either words or actions, to engage in a specific act of sexual penetration or sexual contact.”

At its June meeting, the ALI membership confirmed its rejection of the “affirmative consent” standard. The body gave final approval to the definition of “consent,” which means “a person’s willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact. Consent may be express or it may be inferred from behavior— both action and inaction—in the context of all the circumstances.”

The ALI dryly summarized a decade of heated debate with a one-sentence statement: “Approval of this draft marks the completion of the project, subject to the Council’s approval of the amendments approved at this Annual Meeting.” (2) A timeline of the ALI debate, including links to various draft documents, is available (3).

In 2019 the American Bar Association debated a resolution to endorse the affirmative consent standard (4). The Resolution was defeated after it was opposed by a broad coalition of groups, including the National Association of Criminal Defense Lawyers (5).

California, Connecticut, and New York have enacted laws that require schools to find against a student accused of sexual misconduct unless he or she can prove the accuser gave “affirmative consent.” The New York affirmative consent requirement was a key component of the 2015 “Enough is Enough” law that was championed by Gov. Andrew Cuomo (6).

In practice, these statutes presume guilt and place the burden of proof on the accused. In a decision overturning the University of Tennessee at Chattanooga’s decision to expel a student for sexual misconduct using the affirmative consent rule, Judge Carol McCoy ruled (7):

“[The accused] must come forward with proof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to an activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

Affirmative consent has been ridiculed as a mechanistic “Mother-May-I” approach that potentially criminalizes every good-night kiss and passionate hug (8).

Citations:

Campus Due Process Legal Sexual Assault Title IX

Title IX Hall of Shame: Most Egregious Campus Lawsuits, By State

Post author By Edward Bartlett
Post date August 13, 2021

Title IX Hall of Shame: Most Egregious Campus Lawsuits, By State

SAVE

August 13, 2021

SAVE has compiled a listing and brief summary of the most egregious Title IX lawsuits by state, as of the end of 2020. SAVE encourages you to share the relevant lawsuit(s) with your state lawmakers, and urge them to enact legislation that affirms campus due process.

For more information, see the Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations.

Arkansas (Doe v University of Arkansas):

- The Eighth Circuit ruled, “We conclude that the complaint stated a claim under Title IX of the Education Amendments of 1972 that is plausible on its face, but that the other claims were properly dismissed.”

Arizona (Schwake v. Arizona Board of Regents):

- The Ninth Circuit ruled, “we conclude that Schwake plausibly alleged that the University discriminated against him on the basis of sex. We, therefore, reverse the district court’s dismissal of the Title IX claim.”

California:

Doe v Allee [USC]:
- USC used a single investigator model system, and the college appeals board only had the power to overrule the decision if the investigator’s decisions were not consistent with facts presented in the investigative report. Since the investigator decided what facts were included in the report, she could never be overruled.
Boermeester v. Ainsley Carry:
- The California Appeals Court ruled, “We conclude USC’s disciplinary procedures at the time were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. We thus reverse and remand with directions to the superior court to grant the petition for writ of administrative mandate.”

Colorado (Neal v Colorado State University – Pueblo):

- A third party saw a hickey on a female student’s neck and reported the student’s boyfriend as a rapist. Even though the supposed victim of the rape swore to the university that the sex was consensual, the university expelled the student after giving him less than 24 hours’ notice to the hearing and refusing to give him a copy of the investigative report.

Connecticut (Doe v Quinnipiac):

- The university opened a sexual assault complaint “on behalf of” a previous girlfriend of a student, even though she had not filed a complaint herself. The university subjected the “accused” student to a 7-hour hearing with no witnesses, and subsequently destroyed the evidence of the hearing and the prior investigation.

District of Columbia (Doe v George Washington II):

- The U.S. District Court ruled in favor of the accused student and remanded the case for a second hearing, instructing the university to consider the toxicology reports and phone records that showed the accusation to be false. The school did not consider any of the new evidence and found him responsible again, so the student had to sue a second time.

Florida (Jia v University of Miami):

- The university instructed the accused student that he could not file a counter complaint against the accuser, even though they were both drunk, because he needed to be “compassionate.” The accuser later worked with a professor to accuse plaintiff publicly of assault; the university did nothing to stop this harassment.

Georgia (Doe v Board of Regents of Georgia [GA tech]):

- The university used a single investigator model, did not interview the witnesses of the accused, withheld the identities of the accuser’s witnesses until the day the expulsion decision was made, and provided no opportunity for cross examination.

Illinois (Doe v University of Chicago):

- The university found the accused student to be not responsible. But the accuser proceeded to distribute pamphlets falsely stating that the university had “found him guilty.” The university instructed the accused student that he could not publicly contest the pamphlet allegations, supposedly in order to protect the accuser’s confidentiality.

Indiana (Doe v Purdue University):

- The university withheld the investigative report which included a made-up confession by the accused student. Additionally, two panel members admitted to not reading the materials presented to them prior to the hearing, and the accused student was not allowed to present witnesses.

Iowa (Doe v Grinnell):

- The university contracted with an outside adjudicator who was the former Iowa Chief Justice, and required that she use an affirmative consent standard that required the student to prove consent rather than the university to prove lack of consent. The university consolidated two claims by different accusers of two separate incidents.

Kentucky (Elmore v Bellarmine):

- Elmore reported a professor’s sexual harassment of himself. The university retaliated against Elmore, turning the evidence against him and denying him counsel at the hearing.

Louisiana (I.F. v Tulane):

- A student was criminally charged and then acquitted. At the subsequent university hearing, the hearing panel relied on allegations of a phone call made by the accuser to a friend shortly after the alleged sexual assault. During the criminal defense, the student had proven the phone call never occurred. But the university continued to rely on the non-existent phone call as inculpatory evidence.

Maryland (Doe et al v Salisbury et al):

- Two accused students were denied the opportunity to ask critical questions of witnesses or to see witnesses testify.

Massachusetts

- Doe v Brandeis:
  - The school did not allow the student any right to notice of charges, the right to counsel, the right to cross examination, the right to review investigative report, or the right to appeal. Additionally, the University refused to interview Doe’s witnesses.
- Doe v Amherst:
  - A female student performed non-consensual oral sex on a male student while he was passed out. Inexplicably, the female student later accused the male student of sexual assault. The university found him responsible, because even though he was blacked out at the time, “being impaired by alcohol is never an excuse,” the university argued. The male student later acquired text messages from the female accuser’s friends that proved the accuser had lied, but the university refused to reopen the case.

Michigan (Doe v Baum):

- - In this double-jeopardy case, the accused student prevailed in the initial hearing, but on the accuser’s appeal, was found responsible. The accused student was denied the right to cross examination.

Mississippi (Doe v University of Mississippi):

- - The university excluded Doe’s exculpatory statements and evidence. The university also counseled Doe’s new girlfriend to not support him emotionally, or be subject to retaliation charges at the school.

Montana (Powell v Montana State):

- - A student held a private conversation with a professor in which the student stated he did not agree with the gender identity movement. The professor reported the conversation to school officials and a transgender student in her class, alleging the student represented a danger to transgender students. The university suspended the student.

New Jersey (Collick et al v William Patterson University):

- - Collick and other students were charged criminally and the university summarily expelled them, and issued a public statement praising the bravery of the “victim.”

New Mexico (Lee v University of New Mexico):

- - The accused student was not afforded the right to cross examination, or to present evidence in his defense. The university prevented him from reviewing the evidence that did exist.

New York (Hall v Hoftstra):

- - When the accused student requested to review the investigative report, he was informed that he could review the report only under supervision, could not take notes, and could not speak with his attorney. The complainant admitted to hitting the accused in the groin, but administrators stated they “did not believe complainant was aggressive towards [the accused student].”

North Carolina (Gulyas v Appalachian State University):

- - University officials admitted to omitting key facts from the investigative report, and to not investigating an incident where the complainant physically assaulted the male student.

Ohio:

- Doe v University of Cincinnati:
  - The accused student was subjected to a “respondent only” hearing where the board members asked no questions of substance at all. The accused was asked if he had any questions for the accuser, even though she was not present.
- Doe v. Oberlin College:
  - The Sixth Circuit ruled, “Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually – rather than collectively, based on one’s identification with some demographic group….John Doe argues that his complaint in this case adequately stated a claim that Oberlin College did precisely that when it determined his responsibility on a sexual-assault allegation. We agree, and reverse the district court’s decision to the contrary.”

Oklahoma (Ritter v Oklahoma City University):

- - The judge ruled that a student can allege discriminatory intent under the Twombly Iqbal standard. This standard makes it easier to sue the schools for Title IX violations.

Oregon (Doe v University of Oregon):

- - The university used a trauma-informed, single investigator model. The accuser changed her story multiple times, and the investigator concluded these inconsistencies made the allegations more credible.

Pennsylvania:

Doe v Penn State et al, August 2018:
- - The hearing panel convened a hearing in which neither the complainant nor the respondent were allowed to attend. The panel had been trained to believe that “only 2% of rape accusations are false.”
Doe v. University of the Sciences:
- The Third Circuit ruled, “Doe filed a lawsuit in the District Court alleging that USciences was improperly motivated by sex when it investigated and enforced the Policy against him. Doe also asserted that USciences breached its contract with him by failing to provide him the fairness promised to students under the Policy. The District Court dismissed Doe’s complaint. Doe’s complaint contains plausible allegations supporting both claims. So we will reverse the District Court’s order dismissing Doe’s complaint.”

Rhode Island (Doe v Brown, 2016):

- - The accused student was prohibited from leaving his dormitory room until interviewed by administrators as part of their investigation, then he was banned from the campus indefinitely in the interim. On cross examination, his faculty advisor did not use the student’s listing of the accuser’s inconsistent statements, and the student was later expelled.

South Carolina (Doe v Coastal Carolina University):

- - Local prosecutors declined to prosecute and the student prevailed in a university hearing. The accuser then submitted a late appeal, and the university accepted it anyway. The university held a second hearing, this time without witnesses, and found him responsible.

South Dakota (Tsuruta v Augustana University):

- - The accuser had a documented history of making false accusations. The accused had a physical disability that physically prevented him from committing rape. The university failed to interview witnesses who could provide information to confirm the disability, and found him responsible.

Tennessee

- - Doe v Rhodes:
    - School officials instructed the board to regard the evidence in the investigative report as “dispositive” that the accuser had been raped. The university only called female witnesses, and the accuser did not attend the hearing.
  - Mock v University of Tennessee:
    - After two students had a sexual encounter, the female student accused him of violating the college’s affirmative consent standard. During the hearing, the accused student was required to prove that he had met the affirmative consent standard, rather than the accuser having to prove a lack of consent. The male student was found responsible, so he filed an administrative appeal (TN state law procedure). The Administrative Judge overturned the university ruling, stating the affirmative consent standard is “flawed and untenable.”
Texas (Oliver v University of Texas Southwestern Medical School):
- - - The accuser had a severe substance abuse problem. She stole her boyfriend’s prescription controlled medication and was arrested on drug possession charges. She tried to convince boyfriend to sign a false affidavit, and when that was unsuccessful, she retaliated by fabricating an audio recording of him assaulting her. She complained to the university, and the university initially dropped charges but summarily expelled Oliver when it discovered he had been arrested on charges relating to the audio recording, because they believed that he had assaulted her.

Vermont (Doe v Middlebury):

- - - During a study abroad semester, the accused had been accused and exonerated of sexual assault. The U.S. school then decided to do its own investigation, in violation of contract with the foreign school. The home school used a single investigator model, had no hearing, and found the student responsible.

Virginia (Doe v Washington and Lee):

- - - Following a sexual encounter, a female student experienced regret, but did not believe she had been raped. She then spent a summer working at a women’s clinic where she became convinced that she had been raped. The school refused to show the accused student the complaint and did not allow him to use a lawyer.

Campus Due Process Office for Civil Rights Sexual Assault Sexual Harassment Title IX

PR: New Analysis of Judicial Decisions Reveals Widespread Legal Support for Campus Due Process

Post author By Edward Bartlett
Post date July 7, 2021

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

New Analysis of Judicial Decisions Reveals Widespread Legal Support for Campus Due Process

WASHINGTON / July 7, 2021 – A new analysis of 206 trial and appellate court decisions reveals widespread judicial support for the new Title IX regulation that went into effect last year. The document reveals particularly strong judicial support for some of its most controversial provisions, such as cross examination. The “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation” is designed for use by judges, attorneys, policy-makers, Title IX administrators, and others.

The document reviews all 27 regulatory provisions in the 2020 regulation and concludes that each of them is consistent with at least one judicial decision. The following seven regulatory provisions were affirmed by 20 or more court decisions:

Pro-Complainant Bias: 34 decisions
Impartial Investigations: 33 decisions
Cross Examination: 31 decisions
Institutional Sex Bias: 27 decisions
Notice to Respondent: 27 decisions
Access to Evidence: 23 decisions
Evidence Evaluation: 20 decisions

Judges now view constitutionally based due process protections as requisite to sexual misconduct proceedings in public schools. As Judge Robert Jonker recently noted in Munoz v. Michigan State University, “Everyone agrees that procedural due process is implicated when a public university imposes a suspension of this magnitude.” (1)

Overall, the decisions did not turn on subtle interpretations of nuanced legal precepts. Rather, they were based on judicial recognition that colleges are failing to observe the most fundamental notions of fairness, often so gross as to suggest that sex bias was the motivating factor. A sample section from the Analysis on Institutional Sex Bias is available for viewing online (2).

For each of the 27 pertinent regulatory provisions in the Title IX regulation, the Analysis enumerates:

Regulatory language
Supreme Court decisions, if available
Appellate Court decisions, if available
Trial Court decisions
Summary

The 104-page “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation” is available for $100. Checks should be made payable to “SAVE” and sent to P.O. Box 1221, Rockville, MD 20849. Or send payment via PayPal with the notation, “Analysis of Judicial Decisions:” https://www.paypal.com/donate/?hosted_button_id=JELDTQDKAQB6A

More information about the Analysis is available online (3).

Citations:

Campus Due Process Sexual Assault Sexual Harassment Title IX

Florida Enacts New Campus Due Process Law

Post author By Edward Bartlett
Post date June 30, 2021

Florida Enacts New Campus Due Process Law

SAVE

June 30, 2021

Recently Florida Gov. Ron DeSantis signed HB 233, which mandates a number of due process protections, among other things. The law amends Section 1006.60 of the Florida Statutes, which pertains to Codes of conduct and disciplinary measures. The law provides for the following:

1. Timely and detailed notice
2. Access to all inculpatory and exculpatory information
3. List of witnesses
4. Presumption of innocence
5. Impartial hearing officer
6. Right to remain silent
7. Right of the accused to present evidence and witnesses
8. Active assistance of an adviser, who has the right to present evidence and question witnesses
9. Right to appeal
10. Accurate and complete record of the proceedings

The actual language of the bill, including line numbers, is shown below.

(3) The codes of conduct shall be published on the Florida
196 College System institution’s or state university’s website,
197 protect the rights of all students, and, at minimum, provide the
198 following due process protections to students and student
199 organizations:
200 (a) The right to timely written notice. The code must
201 require that the institution or university provide a student or
202 student organization with timely written notice of the student’s
203 or student organization’s alleged violation of the code of
204 conduct. The notice must include sufficient detail and be
205 provided with sufficient time to prepare for any disciplinary
206 proceeding.
207 1. The written notice must include the allegations to be
208 investigated, the citation to the specific provision of the code
209 of conduct at issue, the process to be used in determining
210 whether a violation has occurred and associated rights, and the
211 date, time, and location of the disciplinary proceeding.
212 2. The written notice is considered timely if it is
213 provided at least 7 business days before the disciplinary
214 proceeding and may be provided by delivery to the student’s
215 institutional e-mail address, and if the student is under 18
216 years of age, to the student’s parent or to the student
217 organization’s e-mail address.
218 3. At least 5 business days before the disciplinary
219 proceeding, the institution or university must provide the
220 student or student organization with:
221 a. A listing of all known witnesses that have provided, or
222 will provide, information against the student or student
223 organization.
224 b. All known information relating to the allegation,
225 including inculpatory and exculpatory information.
226 (b) The right to a presumption that no violation occurred.
227 The institution has the burden to prove, by a preponderance of
228 the evidence, that a violation has taken place. Preponderance of
229 the evidence means that the information presented supports the
230 finding that it is more likely than not that the violation of
231 the code of conduct was committed by the student or student
232 organization.
233 (c) The right to an impartial hearing officer.
234 (d) The right against self-incrimination and the right to
235 remain silent. Such silence may not be used against the student
236 or student organization.
237 (e) The right to present relevant information and question
238 witnesses.
239 (f) The right to an advisor or advocate who may not serve
240 in any other role, including as an investigator, decider of
241 fact, hearing officer, member of a committee or panel convened
242 to hear or decide the charge, or any appeal.
243 (g) The right to have an advisor, advocate, or legal
244 representative, at the student’s or student organization’s own
245 expense, present at any proceeding, whether formal or informal.
246 Such person may directly participate in all aspects of the
247 proceeding, including the presentation of relevant information
248 and questioning of witnesses.
249 (h) The right to appeal the final decision of the hearing
250 officer, or any committee or panel, directly to the vice
251 president of student affairs, or any other senior administrator
252 designated by the code of conduct, who must hear the appeal and
253 render a final decision. The vice president of student affairs
254 or person designated by the code of conduct to hear the appeal
255 may not have directly participated in any other proceeding
256 related to the charged violation.
257 (i) The right to an accurate and complete record of every
258 disciplinary proceeding relating to the charged violation of the
259 code, including record of any appeal, to be made, preserved, and
260 available for copying upon request by the charged student or
261 student organization.
262 (j) A provision setting a time limit for charging a
263 student or student organization with a violation of the code of
264 conduct, and a description of those circumstances in which that
265 time limit may be extended or waived.

Campus Due Process Sexual Assault Sexual Harassment Title IX

Professor’s Lawsuit Against JMU Highlights Necessity of Campus Due Process Protections

Post author By Edward Bartlett
Post date June 22, 2021

Professor’s Lawsuit Against JMU Highlights Necessity of Campus Due Process Protections

Michael B. Miley

June 21, 2021

Allegations of sexual misconduct or sexual assault are serious charges that demand a serious and consistent process for the investigation and deliberation as to the fault, or lack thereof, assigned to the accused. Even if a wrongly accused person does not face a severe and visceral punishment such as prison, a finding of fault by an officially-sanctioned institutional authority—particularly as it relates to sexual misconduct—can devastate a person’s life by potentially destroying their professional reputation and private relationships. All individuals, and groups of individuals, can find assurance in procedures that ensure the law applies to everyone equally.

Campus adjudicative systems have long been criticized by legal scholars for lacking basic procedural protections for the accused, but in 2011, the Department of Education’s Office of Civil Rights issued new guidance for how universities must handle allegations of sexual assault, which has brought those procedural concerns into much greater focus. The guidance document, known as the “Dear Colleague Letter,” required universities to adopt a “preponderance of the evidence” standard (greater than 50 percent chance allegation is true), granted accusers the right to appeal a university’s finding of no-fault/not guilty, and encouraged universities to restrict an accuser’s right to cross-examination.

Thus, a situation was created where universities—ill-equipped to prosecute sexual misconduct in the first place—faced serious pressure by the federal government to return findings of guilt or responsibility for those accused of sexual misconduct, as too many not guilty verdicts could result in loss of federal funds for non-compliance with agency directives.

A recent federal complaint filed in Virginia is illustrative as to how this process can railroad an individual totally without merit, and why then, due process protections necessarily improve the Title IX process. In 2015, the complainant, Alyssa Reid, a nationally recognized debater, and professor at James Madison University began a romantic relationship with Kathryn Lese, a female graduate TA who Reid did not supervise and who did not work in Reid’s department. Indeed, one year into their relationship, an anonymous complaint prompted a Title IX investigation by JMU, which cleared Reid of any wrongdoing in her relationship with Lese for precisely those reasons.

Two years later, their relationship ended on less than pleasant terms and Lese began sending Reid abusive text messages with threats to “ruin” Reid’s career. Lese then gave a statement to JMU’s Title IX office that did not meet the standard necessary for a formal complaint; it did not allege that their relationship was non-consensual, unwelcome, or negatively impactful to her education. Reid alleges that JMU discriminated against her because of her sex and sexual orientation when they improperly accepted Lese’s complaint, did not inform Reid of the complaint against her for two months, applied the wrong version of JMU’s Title IX policy to her case, and imposed sanctions on Reid prior to the consummation of the Title IX investigation, hearing, and appeals process; furthermore, there were no representatives of the LGBTQ community on Reid’s hearing panel, and during the hearing, she could not cross-examine Lese and Lese’s witnesses, and was prevented from presenting her own witnesses.

Reid is recognized by students for using her rhetorical skills and communicative abilities to give voice to marginalized individuals and groups, and her voice has been silenced now because of an unstructured process that turned Reid into an unperson: guilty, with no way to prove her innocence.

Often when faced with difficult choices, or a seeming crisis scenario—especially when the government confirms the existence of said crisis—the temptation to temporarily (at least at first) ignore or weaken procedural protections, or components of procedural protections, that are, or may appear to be, impediments to speedy dispositions and decisive institutional action.

The social, economic, and political benefits all Americans receive from the procedural safeguards of our legal system, however, must not be forgotten or ignored. Indeed, if there are concerns from society, or certain segments of society that government mandated adjudicative systems are not achieving their espoused ideal of “equal justice under law,” the answer is not to dispose of the entire system, and all the protections inherent to it, but rather the answer is to look for ways these due process rights can be strengthened and applied to extrajudicial adjudicative bodies.

Citation:

[1] See Samantha Harris & KC Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49, 53 (2019).

Campus Due Process Sexual Assault Sexual Harassment Title IX

Strong Due Process Protections Are Essential for the Protection of Vulnerable Campus Groups

Post author By Edward Bartlett
Post date June 17, 2021

Strong Due Process Protections Are Essential for the Protection of Vulnerable Campus Groups

SAVE

June 17, 2021

Due process protections are especially important to assure the rights of vulnerable groups such as LGBT persons, racial minorities, disabled students, and immigrants:[1]

LGBT Groups

Former James Madison University faculty member and speech coach Alyssa Reid was accused by her former female partner of a “non-consensual relationship.” Reid eventually was held responsible for violating the university’s Title IX policy. Reid recounted movingly,[2]

“When you’re accused of sexual misconduct, it’s fundamentally different. It’s something that critiques the nature of who you are to your core, that sticks with you forever….JMU did not provide me with due process. It provided me with the illusion of due process….This hearing has ruined my life. This hearing ruined my dream. I have helped students find their place in the world. And the irony now is that I’m lost.”

Reid recently filed a lawsuit against James Madison University alleging multiple due process violations.[3]

In a second case, a male student at Brandeis University filed a complaint against his former male partner, alleging non-consensual sexual interactions. Even though the men had been in a long-term relationship, the campus investigator treated each sexual incident as if the men were strangers to each other, leading to a campus finding of “responsibility.” In a milestone decision, Judge Dennis Saylor vindicated the accused student, opining,[4]

“If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself, and an impartial arbiter to make that decision.”

Saylor also noted that Brandeis had forced the accused student to:

“defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense.”

African-Americans

During a 2015 Senate hearing on campus sexual assault, Harvard Law Professor Janet Halley made the observation that in her experience, “male students of color are accused and punished at ‘unreasonably high rates’ in campus sexual misconduct investigations.”[5] Two years later, journalist Emily Yoffe posed this question in The Atlantic: “Is the system biased against men of color?” explaining, “black men make up only about 6 percent of college undergraduates, yet are vastly overrepresented in the cases I’ve tracked.”[6]

Black faculty members also have been targeted in campus Title IX proceedings. The nation’s first elected black governor, former Virginia Governor L. Douglas Wilder, penned a scathing letter regarding his “unimaginable nightmare at Virginia Commonwealth University” after he was erroneously accused of sexual misconduct.[7]

In 2017, the Office for Civil Rights investigated Colgate University for potential race discrimination in its sexual assault adjudication processes. During the course of the investigation, the institution had to reveal the fact that “black male students were accused of 50% of the sexual violations reported to the university,”[8] even though black students represent only 5.2% of all undergraduate students.

More recently, Title IX For All analyzed demographic data from the approximately 650 lawsuits filed against institutions of higher education since 2011. Among the 30% of cases in which the race of the accused student was known, black students are four times as likely as white students to file lawsuits alleging their rights were violated in Title IX disciplinary proceedings.[9]

Learning Disabled Students

Because learning disabled students may have a more difficult time navigating social relationships, students with autism and other learning disabilities are at greater risk of accusations of sexual misconduct.[10]^{,[11],[12],[13],[14]}These articles reveal a pressing need for policy guidance to clarify the interface between Title IX and the Americans with Disabilities Act.

Following is an illustrative case from New York:

Jason Doherty, a student at the State University of New York, Purchase had been diagnosed with Asperger Syndrome and was classified as a disabled student. During freshman orientation, Doherty had a contentious interaction with three female students, resulting in a no-contact order being issued against the man. As a result, Doherty alleged that the order interfered with his academic success, and that he suffered from anxiety and depression as a result.

In his lawsuit against the institution, Doherty alleged that, “Defendants did not take into account [Plaintiff’s] disability when issuing the no contact orders, nor did they consider whether the no contact orders were being requested in an effort to tease and bully [Plaintiff] because of his disability.’”[15] The judge ruled that Doherty’s allegations of failure to accommodate were sufficient to sustain the ADA claim.

In the words of Acting Assistant Secretary for Civil Rights Suzanne B. Goldberg, “Our nation’s civil rights laws require fair and nondiscriminatory school discipline practices, yet we have data that show concerning disparities based on race, sex, and disability in the administration of discipline.”[16] To end this wave of discrimination, the due process rights of vulnerable groups on campus need to be affirmed, protected, and vigorously defended.

Citations:

[1] Raul Jauregui (June 2, 2021), Title IX Needs to Protect Every Student Present in the US, Including Dreamers. https://www.saveservices.org/2021/06/title-ix-needs-to-protect-every-student-present-in-the-us-including-dreamers/

[2] New Civil Liberties Alliance, Alyssa Reid v. James Madison University, et al. https://nclalegal.org/alyssa-reid-v-james-madison-university-et-al/

[3] New Civil Liberties Alliance, Alyssa Reid v. James Madison University, et al. https://nclalegal.org/alyssa-reid-v-james-madison-university-et-al/

[4] Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. 2016). https://casetext.com/case/doe-v-brandeis-univ

[5] G. Piper (Aug. 4, 2015). Shut out of sexual-assault hearing, critics of pro-accuser legislation flood Senate committee with testimony. https://www.thecollegefix.com/shut-out-of-sexual-assault-hearing-critics-of-pro-accuser-legislation-flood-senate-committee-with-testimony/

[6] Emily Yoffe (Sept. 11, 2017). The Question of Race in Campus Sexual-Assault Cases. The Atlantic. https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/

[7] L. Douglas Wilder (June 3, 2020). Secretary DeVos Right to Restore Due Process on Campus. The Roanoke Times. https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html

[8] Soave, Robby (Sept. 14, 2017). We Need to Talk About Black Students Being Accused of Rape Under Title IX. Reason. https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/

[9] Title IX for All (July 6, 2020). Plaintiff Demographics in Accused Student Lawsuits. https://www.titleixforall.com/wp-content/uploads/2020/07/Plaintiff-Demographics-by-Race-and-Sex-Title-IX-Lawsuits-2020-7-6.pdf

[10] William Russell (Jan. 1, 2017). Sexual Misconduct on Campus: A Brief Introduction to Title IX Guidelines and Policies for Parents and Caregivers. Autism Spectrum News. https://autismspectrumnews.org/sexual-misconduct-on-campus-a-brief-introduction-to-title-ix-guidelines-and-policies-for-parents-and-caregivers/

[11] Lee Burdette Williams (Feb. 8, 2018), The Nexus of Autism and Title IX. Inside Higher Ed. https://www.insidehighered.com/views/2018/02/08/colleges-should-understand-special-issues-related-autism-and-title-ix-opinion

[12] Susan Stone & Kristina Supler (July 12, 20218), ‘I Don’t Get It:’ Why College Students with Autism are Vulnerable to Charges of Sexual Misconduct. https://studentdefense.kjk.com/2018/07/02/i-dont-get-it-why-college-students-with-autism-are-vulnerable-to-charges-of-sexual-misconduct/

[13] Michael Allen (Dec. 20, 2018), Disability Rights and Title IX. https://allen-lawfirm.com/2018/12/20/disability-rights-and-title-ix/

[14] Golub, David (May 9, 2021), How Will Title IX Policies Affect Autistic Students? SAVE. https://www.saveservices.org/2021/05/how-will-title-ix-policies-affect-autistic-students/

[15] Doherty v. Bice, No. 18-CV-10898 (NSR), 2020 WL 5548790, *8 (S.D.N.Y. Sept. 16, 2020)

[16] Department of Education (June 4, 2021), U.S. Department of Education’s Office for Civil Rights Seeks Information on the Nondiscriminatory Administration of School Discipline. https://www.ed.gov/news/press-releases/us-department-educations-office-civil-rights-seeks-information-nondiscriminatory-administration-school-discipline#:~:text=%22Our%20nation’s%20civil%20rights%20laws,in%20the%20administration%20of%20discipline.

Campus Due Process Sexual Assault Sexual Harassment Title IX

Disregarding Bogus Claims of Activists, Vast Majority of Americans Support Campus Due Process

Post author By Edward Bartlett
Post date June 9, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Disregarding Bogus Claims of Activists, Vast Majority of Americans Support Campus Due Process

WASHINGTON / June 9, 2021 – For years, campus activists have promoted a narrative about campus sexual assault using inflammatory terms such as “rape culture.” But analyses reveal these claims to be factually untrue, pointing to the need to restore campus fairness. Over the last decade, campus groups have made a series of questionable claims.

These groups portray campus sexual assault as an exclusively a male-on-female problem. But according to the Centers for Disease Control, nearly identical numbers of men and women are victims of sexual violence. The National Intimate Partner and Sexual Violence Survey reports that each year, 1.270 million women are raped, and 1.267 million men are “made to sexually penetrate” by their female partners (1).

Activists also have repeated the factoid that only 2-10% of sexual assault allegations are false (2). But the actual number is much higher. According to Brett Sokolow, head of the Association of Title IX Administrators, “Probably 40 or 50% of allegations of sexual assault are baseless.” (3)

More concerning is the belief that due process is an obstacle, not conduit to justice. According to this theory, the solution to campus sexual assault was to remove due process protections for the accused. As a result, reporting of incidents supposedly would increase, convictions would multiply, and sexual assault would be curbed. This was the rationale for the federal Dear Colleague Letter policy of 2011, which eliminated due process protections for the accused, such as the right to be represented by counsel.

But the “due process as an obstacle to justice” theory backfired.

A survey sponsored by the American Association of Universities documented increases in campus sexual assaults from 2015 to 2019 among undergraduates, growing by 1.4% for men and 3.0% among women. In 2019, only 11.2% of sexual assaults were reported to campus police, partly because only 45% of victims believed that school officials were “very likely” or “extremely likely” to take their report seriously (4).

Part of the problem can be traced to campus Title IX Coordinators who came to view their role as advocates, not neutral administrators. In many cases, these Coordinators made snap decisions of innocence or guilt, even before the formal investigation began. An early survey of Title IX coordinators concluded that these persons “did not consistently comply with requirements requiring mandatory reporting, did not consistently provide notice to respondents, and often departed from the investigation, documentation, and reporting requirements” of the Department of Education (5).

A 2020 YouGov survey commissioned by SAVE revealed strong public support for campus due process, as well (6):

Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system: 68%
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: 75%
Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves: 80%

Democrats and Republicans expressed similarly high levels of support for campus fairness (7).

This week, the federal Office for Civil Rights is holding a Public Hearing on the Title IX regulation that took effect last August. The Comment submitted by SAVE highlights the strong bipartisan support for campus due process among lawmakers, newspaper editorial boards, organizations, and individual commentators (8).

SAVE urges lawmakers and college administrators to disregard the dubious claims of activist groups, and instead work to uphold the quintessential principle of fairness and due process.

Links:

Campus Due Process Sexual Assault Sexual Harassment Title IX

SAVE Oral Testimony to the Office for Civil Rights

Post author By Edward Bartlett
Post date June 7, 2021

SAVE Oral Testimony to the Office for Civil Rights

June 7, 2021

Good morning. My name is Edward Bartlett. I am the president of SAVE, a non-partisan organization that is working for campus fairness and due process. SAVE advocates on behalf of both complainants and respondents.

One of the misconceptions surrounding the sexual harassment debate is that the issue is a partisan one that separates Democrats and Republicans. But is that really true?

First, let’s look at the statements issued by law school professors, who are generally inclined to be liberal. Beginning in 2014, law professors from Harvard Law School,[1] the University of Pennsylvania,[2] and Cornell Law School [3] issued strongly worded statements in support of campus due process.

Second, let’s look at a recent public opinion poll. A 2020 YouGov poll commissioned by SAVE found that two-thirds to four-fifths of all Americans agreed with the due process questions that were asked [4]. The survey reported similar levels of support among Democrats and Republicans.[5]

Third, let’s look at the judges who have issued rulings in favor of campus due process. A 2019 analysis published in the New York University Journal of Legislation and Public Policy looked at the number of pro-due process decisions by judges who had been nominated by Presidents Clinton, Bush, and Obama. The report found, “no meaningful statistical correlation exists between the [judicial] outcome and [which president] nominated the judge.”[6]

Fourth, let’s examine the statements published in the last three months, after the Department of Education announced it would be reviewing the 2020 regulation. The editorial boards of five major newspapers weighed in, in support of campus fairness:

Detroit News [7]
Los Angeles Times [8]
New York Daily News [9]
Washington Post [10]
Wall Street Journal [11]

Of these newspapers, four are generally regarded as liberal, and one, the Wall Street Journal, viewed as conservative.

Finally, former Democratic presidential candidate Michael Bloomberg issued a strongly worded editorial on March 25.[12] Referring to the campus regime established under the 2011 Dear Colleague Letter, Bloomberg explained, “Alleged victims said that schools failed to investigate their claims professionally…. Accused students were routinely denied the right to examine evidence, receive written notice of the charges against them, or cross-examine witnesses.”

Bloomberg concluded, “College students deserve a better and more just system, and the Biden administration should undertake to create it.”

SAVE looks forward to continuing conversations with the Office for Civil Rights. Thank you.

Citations:

[1] https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

[2] http://media.philly.com/documents/OpenLetter.pdf

[3] https://www.scribd.com/document/375274931/John-Doe-v-Cornell-Motion-of-23-Cornell-Law-Professors-to-File-Amicus-Brief-in-Support-of-Student

[4] SAVE, (November 16, 2020), YouGov Poll on Campus Due Process. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-on-Campus-Due-Process-11.16.2020.xlsx

[5] SAVE (November 18, 2020), YouGov Poll with Political Party Identification. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-with-political-party-identification-11.18.2020.xlsx

[6] https://nyujlpp.org/wp-content/uploads/2019/12/Harris-Johnson-Campus-Courts-in-Court-22-nyujlpp-49.pdf

[7] The Detroit News (May 10, 2021), Opinion: Keep Title IX sex assault rules constitutional. https://www
.yourdailyjournal.com/opinion/100732/opinion-keep-title-ix-sex-assault-rules-constitutional

[8] The (Los Angeles) Times Editorial Board (March 22, 2021), Editorial: Betsy Devos’s campus sex-assault rules need a tweak, not an overhaul. https://news.yahoo.com/editorial-betsy-devoss-campus-sex-100019802.html

[9]Daily News Editorial Board (March 10, 2021), Fairness for accusers & accused: Biden shouldn’t mess with Title IX improvements on sexual misconduct. https://www.nydailynews.com/opinion/ny-edit-biden-title-ix-changes-20210310-hn6wmbuwgfflnld72aj24qclse-story.html

[10] The Washington Post Editorial Board (March 28, 2021), Opinion: Biden has a chance to restore balance to the rules on campus sexual assault. https://www.washingtonpost.com/opinions/biden-has-a-chance-to-restore-balance-to-the-rules-on-campus-sexual-assault/2021/03/28/cc4416fc-8767-11eb-8a8b-5cf82c3dffe4_story.html

[11] WSJ Editorial Board (March 4, 2021), Here Comes the Due Process Rollback, House Democrats want Biden to repeal campus protections in sexual misconduct cases. https://www.wsj.com/articles/here-comes-the-due-process-rollback-11614902297

[12] https://www.bloomberg.com/opinion/articles/2021-03-25/title-ix-biden-should-bring-better-justice-to-u-s-universities

Campus Due Process Title IX

Hostile Environment Concerns May Cancel Academic Freedom

Post author By Edward Bartlett
Post date June 6, 2021

Hostile Environment Concerns May Cancel Academic Freedom

David B. Porter, DPhil, Col, USAF (Ret.)

June 6, 2021

I am a 72-year-old veteran and acknowledge my many blessings and privileges. I graduated from the Air Force Academy with distinction in 1971 with an engineering degree; a year later, I earned a master’s degree from UCLA in Industrial Relations and Labor Law. After serving as a rescue helicopter pilot and aircraft maintenance officer, I returned to the Air Force Academy faculty. Later, I completed my doctorate in Experimental Cognitive Psychology at Oxford University. In 1996, I was selected by the Academy and confirmed by the Senate as the third Permanent Professor and Head of the Department of Behavioral Sciences and Leadership.

Throughout my career, I’ve supported diversity and inclusion. I earned AF qualifications as an Equal Opportunity & Treatment Officer and Race Relations Instructor. As an Organizational Maintenance Officer, our unit was the first to be assigned female aircraft mechanics; the following year, we won the Dedalian Award for the best Aircraft Maintenance in the AF. At the Academy, I advised the first female cadet to finish first in Graduation Order of Merit; I led efforts to integrate women & civilians into the Academy’s faculty and I sponsored the Cadet Free Thinkers. I drafted the Academy Core Values (which later became the Air Force Core Values) and the initial Operations Plan for the integration of gays and lesbians into the Cadet Wing in 1995.

I’ve been a “consultant evaluator” for three regional educational accrediting bodies and was on key academic committees for Western Governors University. I served as Provost at Berea College from 2001-2005 and as a tenured professor of psychology and general studies until 2018. I’ve sought to implement the goals of diversity, equity, and inclusion throughout my lifetime.

This is why I was so deeply disappointed when I observed the negative consequences of Title IX’s Dear Colleague Letters on my campus.

Trying to combat racism and discrimination without authentic assessment and due process is like trying to fight a fire while blindfolded. Hosing down a fire chief because he happens to be “some old white guy” is not an effective tactic. As an advisor to a faculty respondent charged with discrimination in selection and promotion, retaliation, and creating hostile environment, I saw nearly all the critical due process safeguards I had learned as an Air Force Equal Opportunity and Treatment Officer abandoned.

The college’s Title IX coordinator was an advocate rather than an administrator, mediator, or arbitrator. A slip-shod investigation undertaken by misinformed and poorly prepared social justice zealots, ignored objective contrary evidence and obvious exaggerations, misinformation, and demonstrably false claims by the grievants. The administrative goal was successful prosecution rather than fair and equitable treatment. I was embarrassed for my college and for the cause I had served for so long.

Berea College is not the only place where such travesties have occurred; there are hundreds of others who have been unjustly accused and dismissed for doing or saying things subjectively assumed to be “dangerous” or “threatening.” Emotions are important and microaggressions can be real, however, objective analysis of the variables involved is essential.

In 2018, I developed a survey of identity, beliefs, perceptions, & judgments related to hostile learning environments & academic freedom with my Industrial/Organizational classes. Some of the scenarios it included were derived from actual incidents both at Berea College and elsewhere. No names were revealed, and race and/or gender were sometimes changed to obscure the identity of the guilty as well as the innocent. The survey was reviewed by my acting department chair, my academic division chair, and the chair of the Institutional Review Board. No one expressed ethical concerns or harm to others.

For posting this survey as a part of my course, I was suspended, prohibited from communicating with students, and banished from campus. To the best of my knowledge, there was never an investigation and suggestions of mediation or compromise were quickly squelched by a zealous dean who falsely claimed to my colleagues that I was “unrepentant and unapologetic” despite clear evidence to the contrary. After a 10-week suspension based on fears expressed by un-identified grievants; my professional competence was questioned; my tenure was revoked; and I was dismissed for cause. A presentation of the results of our study is available at https://davesfsc.com. We found that identity and beliefs predict a perception of environmental hostility, and that this perception negatively influences judgments about academic freedom.

The enhanced protections for due process incorporated in the Office for Civil Rights 2020 regulation must be retained and strengthened. A formal assessment of program effects on campuses must be integrated into all programs and policies. As our research suggests, the more that is done to increase sensitivity to micro-aggressions and exaggerated perceptions of “hostility,” the greater the potential damage to academic freedom and higher learning.

“When we tell the truth, we honor all those who have given their all…” — Anonymous Gold Star Father, 2021

Campus Due Process Free Speech Title IX

Expelling the Innocent: The New Campus Black List

Post author By Edward Bartlett
Post date June 2, 2021

Expelling the Innocent: The New Campus Black List

James Moore

June 2, 2021

In 2011 the US Department of Education published a “Dear Colleague” letter pertaining to Title IX of the Education Amendments of 1972 and its implementing regulations. The letter emphasized that sexual harassment of students, including sexual violence, is a form of sex discrimination prohibited in education programs operated by recipients of Federal funds.

The 2011 letter threatened termination of any federal funding, including research funding, for universities failing to conform to this guidance. In 2014 DOE issued a “Question and Answer” document providing further direction, and U.S. colleges and universities largely upended their procedures for responding to allegations of student sexual misconduct. The remedy institutions usually found for protecting students from peers found responsible for sexual violence consisted of expelling men from school, too often on weak grounds.

The 2011 and 2014 documents both provide sub-regulatory guidance, so they technically did not have the force of law. However, they were simple for the DOE to implement and delivered a frightening threat to institutional leaders. Such guidance could be created entirely at the discretion of the DOE Office of Civil Rights without collecting and responding to public comments. Because guidance is not technically a regulatory rule, it is notoriously difficult to challenge.

The DOE’s guidance addressed a genuine problem. Absent an external criminal finding, schools had little incentive to respond in a substantive way to sexual misconduct complaints from students. Doing so would draw negative attention that placed schools at a disadvantage in the competition for students.

Unfortunately, the DOE’s guidance created new problems at least as troubling as those remedied, because it required colleges and universities to abandon procedural fairness for students accused of sexual misconduct. Institutions that declined this guidance might find themselves the subject of DOE Title IX investigations, and had a compelling incentive to curry federal favor by accepting any amount of bad advice the agency offered. Expulsions of both guilty and innocent students accelerated.

The harm done by expelling innocent students is substantial, because it is nearly impossible to matriculate at a new school unless a student is in good standing at his or her previous institution. Hundreds of aggrieved students sued their schools over the due process withheld from them, and were more often than not successful in court. Civil judgements mounted against institutions doing the DOE’s bidding.

Faculty efforts to hold institutions to due process drew retaliation from terrified school administrators. I spent 26 years living in a student residence hall guiding undergraduates, whom I tried to insist my institution continue to treat fairly. I am confident my efforts led to a 2015 termination of my resident faculty role by a former vice president for student affairs. I was less prepared for the 2018 student protest demonstration against my employment instigated by a former dean.

The Trump administration moved methodically to revoke and replace the guidance in the DOE “Dear Colleague” and “Question and Answer” documents, but forewent the expediency offered by sub-regulatory guidance. Instead, Secretary of Education Betsy Devos followed formal procedures to promulgate regulatory rules, including seeking and responding to public comments. This was a thorough and unrushed effort that, unlike the Obama administration’s guidance, took none of the stakeholders by surprise. After a closed-door summit in July of 2017 that included participation by due process advocates, Devos in September rescinded the guidance in the Dear Colleague letter, replaced it with interim guidance, and opened a notice-and-comment process for permanent regulations.

DeVos’ draft rule was published in November of 2018 and was finalized in May of 2020 after a review of more than 124,000 public comments. It went into effect less than a year ago in August of 2020, the first Title IX regulations generated this formally since 1997. DeVos’ rule has the unequivocal force of law.

The rule restores due process for accused students, protecting their rights and their institutions’ interests. It requires universities to respond to allegations of student sexual misconduct in a quasi-judicial framework predicated on a presumption of innocence. Complaining and responding parties are represented by an advisor, possibly a lawyer, and must be allowed to cross-examine each other through their advisors. Adjudication is no longer restricted to the preponderance of evidence standard called out in 2011, but may instead be based on the higher standard of clear and convincing evidence.

President Biden has pledged to undo DeVos’ reforms. One path is another multi-year process to promulgate yet another new rule. The administration could ask Congress to expedite repeal of DeVos’ rules via the Congressional Review Act, but Congress will be reluctant to escalate the matter to themselves in the run up to the midterm elections.

In May, President Biden nominated Catherine Lhamon to return to her Obama administration role as the DOE’s Assistant Secretary for Civil Rights. Lhamon is probably the individual most responsible for the due process crisis that DeVos sought to repair. Lhamon’s capacity for overreach and disregard for constitutional guarantees may preclude her confirmation by the Senate. Her opponents have ample evidence that the courts disagree with what she and the DOE Office of Civil Rights previously required of universities.

It is important the attack on DeVos’s Title IX reforms be blocked. Under the guidance that DeVos revoked, the Department of Education took the immoral position that universities should punish more of their guilty students by more frequently punishing innocents. This betrays bedrock principles of procedural fairness and is unacceptable on its face. This approach reduced Obama’s DOE Office of Civil Rights into an executive branch exercise in McCarthyism. Red-baiting was replaced by unsubstantiated rape accusations, and expulsion from college became the new black list. We should not step back toward such moral bankruptcy. DeVos undertook to dismantle an injustice factory, and the new rule that delivers her reforms should be retained.

James E. Moore, II is a Professor of Public Policy and Management and of Industrial and Systems Engineering at the University of Southern California.