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Campus Department of Education Free Speech Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX

Unlawful: SAVE Calls on Lawmakers to Reject Biden Title IX Proposal

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Unlawful: SAVE Calls on Lawmakers to Reject Biden Title IX Proposal

WASHINGTON / June 27, 2022 – A robust body of American case law undergirds due process and free speech at colleges and universities. Unfortunately, the Title IX policy recently proposed by the Biden Department of Education (1) ignores and effectively overturns much of this case law, ignoring key protections enumerated in the First and Fourteenth Amendments.

The body of Title IX case law includes 145 decisions by trial courts, 29 holdings by appellate courts, and one Supreme Court decision (2). The case law has continued to expand in recent months, with appellate findings against the University of Denver, Cornell University, and Harvard University for violations of fair procedure (3).

Following are examples how the Biden proposal sidesteps these judicial decisions:

  1. The Biden plan would allow the same official to serve as both the investigator and decision-maker, what is known as the “single-investigator” approach. Conflating these two roles constitutes a conflict of interest and leads to biased investigations. Indeed, 47 judicial decisions specifically highlighted the problem of investigative bias.
  2. Under the proposed rule, respondents would be allowed access only to a “description of the relevant evidence,” which could be provided either “orally or in writing.” But 27 judicial decisions called out schools for restricting student’s access to relevant evidence.
  3. The Biden approach would dispense with cross-examination and hearings. Instead, adjudicators would be permitted to ask their questions “during individual meetings with the parties.” But 38 judicial decisions highlighted schools’ lack of adequate cross-examination procedures, and 24 decisions specifically called out the failure of schools to assure adequate credibility assessment of the parties.

The over-reach of the Department of Education policy is most apparent in its proposed definition of sexual harassment. In Davis v. Monroe, the Supreme Court defined sexual harassment as “harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” (4)

In contrast, the Department of Education is proposing to dramatically expand the definition of sexual harassment to be “conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate” in their education. This broad definition means that any comment or gesture that is “subjectively” offensive could trigger a Title IX complaint, and is certain to curtail campus free speech.

The proposed Biden plan also violates many provisions found in state-level campus due process laws, which are enumerated on the SAVE website (5).

A recent Wall Street Journal editorial decries, “By proposing to jettison fair proceedings, the Education Department is setting colleges and universities on a collision course with the courts.” (6)

The Department of Education’s Title IX proposal is flawed in its over-arching disregard for due process and fairness, and is antithetical to democratic ideals of free speech. SAVE calls on lawmakers to reject the Biden Title IX proposal.

A listing of media outlets, lawmakers, organizations, and commentators who have already expressed opposition to the Title IX proposal is available online (7).

Citations:

  1. https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm.pdf
  2. https://www.saveservices.org/wp-content/uploads/2022/04/Analysis-of-Title-IX-Regulation-3.24.2022.pdf
  3. https://www.saveservices.org/2022/06/three-recent-appellate-decisions-raise-the-bar-for-procedural-fairness-at-private-universities/
  4. https://www.oyez.org/cases/1998/97-843
  5. https://www.saveservices.org/title-ix-regulation/state-laws/
  6. https://www.wsj.com/articles/biden-renews-obama-attack-campus-due-process-title-ix-sexual-assault-harrasment-civil-rights-11656020306
  7. https://www.saveservices.org/2022-2/
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Campus Free Speech Office for Civil Rights Press Release Sexual Assault Sexual Harassment Title IX

Title IX Reform Emerging as High-Profile Issue for November Elections

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Title IX Reform Emerging as High-Profile Issue for November Elections  

WASHINGTON / June 13, 2022 –  Title IX is the federal law that bans sex discrimination in schools. As a result of a series of controversial policy changes, Title IX has now become one of the most hotly debated topics in America, and is poised to influence the outcome of numerous elections on Tuesday, November 8.

In 2021, Loudon County, VA approved a policy on Rights of Transgender and Gender-Expansive Students that states, “All students are entitled to have access to restrooms and locker rooms that are sanitary, safe, and adequate…Students shall be allowed to use the facility that corresponds to their consistently asserted gender identity.” (1)

Shortly afterwards, a male student entered the school girl’s bathroom and committed a sexual assault. The incident soon became a flashpoint in the Virginia governor’s race (2), leading to the upset victory on November 3 of Republican Glenn Youngkin over Democrat Terry McAuliffe.

Since then, Title IX controversies have spread to schools across the country. The following Title IX-related events occurred within the past several days:

  1. June 2: In a milestone Title IX decision against Cornell University, appellate Judge Jose Cabranes compared campus disciplinary committees to the infamous English Star Chambers and warned, “[T]hese threats to due process and academic freedom are matters of life and death for our great universities.” (3)
  2. June 8: A Washington Post editorial deplored the Title IX complaints against three eighth-grade boys in Wisconsin for referring to a classmate using the biologically correct pronoun “her,” instead of the classmate’s preferred “them.” (4)
  3. June 8: Female long-distance runner Madison DeBos published a widely circulated editorial in which she shared the “disheartening and even heartbreaking” feeling of competing against biological males (5).
  4. June 12: Democrat Tulsi Gabbard made a statement strongly critical of the new gender pronoun policy at the State University of New York, deriding the policy as an example of “forced conformity” (6).

A recent SAVE survey reveals that 63% of Americans oppose the Department of Education’s plan to expand its long-standing definition of sex to include “gender identity.” The national survey also shows that strong majorities of Americans reject other proposed changes to Title IX (7).

All candidates for political office are urged to outline their views on the need for Title IX reform. Concerned persons should urge the Department of Education to cancel its plans to issue a new Title IX regulation. Contact Secretary Miguel Cardona, telephone (202) 401-3000; fax (202) 260-7867; email ocr@ed.gov.

Links:

  1. https://go.boarddocs.com/vsba/loudoun/Board.nsf/files/C5SKU952786E/$file/Policy%208040%2C%20RIGHTS%20OF%20TRANSGENDER%20AND%20GENDER-EXPANSIVE%20STUDENTS%20(June%208%2C%202021).pdf
  2. https://www.politico.com/news/2021/10/28/sexual-assault-schools-virginia-governor-race-517481
  3. https://reason.com/volokh/2022/06/03/second-circuit-judge-judge-jose-cabranes-on-deeply-troubling-aspects-of-contemporary-university-procedures/
  4. https://www.washingtonpost.com/opinions/2022/06/08/wisconsin-school-district-pronoun-police/
  5. https://www.foxnews.com/opinion/female-athletes-trans-ncaa-sports
  6. https://www.youtube.com/watch?v=0ZsSAzqZnQQ
  7. https://www.saveservices.org/2022/06/63-of-americans-oppose-expanding-definition-of-sex-to-include-gender-identity/
Categories
Campus Department of Education Free Speech Office for Civil Rights Press Release Sex Education Sexual Assault Sexual Harassment Title IX

63% of Americans Oppose Expanding Definition of Sex to Include ‘Gender Identity’

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

63% of Americans Oppose Expanding Definition of Sex to Include ‘Gender Identity’

WASHINGTON / June 6, 2022 –  A new survey reveals that nearly two-thirds of Americans oppose the Department of Education’s plan to expand its long-standing definition of sex to include “gender identity” (1). The national survey, conducted for SAVE by YouGov, also shows that strong majorities of Americans reject other proposed changes to Title IX, the federal law that bans sex discrimination in schools.

Following are respondents’ responses to the six survey questions, among those who offered an opinion:

  1. Definition of Sex:
  • Keep traditional biological definition: 63%
  • Expand the definition to include “sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity:” 37%
  1. Transgender Participation in Women’s Sports:
  • Allow: 29%
  • Not allow: 71%
  1. Parental Consent Prior to School Counseling about Gender Dysphoria:
  • Require parental consent prior to counseling: 61%
  • Not require parental consent: 39%
  1. Parental Opt-out for Children’s Participation in Sex Education Classes:
  • Allow parental opt-out: 69%
  • Not allow parental opt-out: 31%
  1. Presumption of Innocence or Guilt for College Disciplinary Hearings:
  • Presumption of innocence: 87%
  • Presumption of guilt: 13%
  1. Definition of Sexual Harassment:
  • Retain current definition to protect free speech: Conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience that the victim-students are effectively denied equal access to an institution’s resources and opportunities:” 57%
  • Expand the current definition to discourage persons from saying things that may be unwelcome or upsetting: 43%

Overall, males and females gave similar responses, with the exception of Question 6. While 66% of males preferred to retain the current definition of sexual harassment, 53% of females indicated a preference to expand the definition of sexual harassment to discourage statements that may be unwelcome or upsetting.

For all six questions, 17-24% of all persons responded, “No opinion/Don’t know.” The “No opinion/Don’t know” responses were excluded from the results presented above. The full survey results and cross-tabulations can be viewed online (2).

All data are from YouGov Plc.  Total sample size was 2,566 adults. Fieldwork was undertaken between May 31 to June 2, 2022.  The survey was conducted online. The data have been weighted and are representative of all U.S. adults (ages 18+). Response options were randomly switched to minimize primacy-recency effects.

Nearly 90 groups have expressed opposition to the draft Title IX regulation (3), which is expected to be issued later in June. SAVE urges concerned persons to speak out to assure the upcoming Title IX regulation conforms to the opinions of a majority of Americans.

Contact Department of Education Secretary Miguel Cardona, telephone (202) 401-3000; fax (202) 260-7867; email ocr@ed.gov.

Links:

  1. https://www.washingtonpost.com/education/2022/03/30/transgender-discrimination-title-ix-rule-students/
  2. https://www.saveservices.org/wp-content/uploads/2022/06/YouGov-Survey-Results-Title-IX-22-6.3.2022.xlsx
  3. https://www.saveservices.org/camp/weaponization/
Categories
Campus Free Speech Office for Civil Rights Sexual Harassment Title IX

Free Speech May Be Imperiled by Upcoming Title IX Policy; Lawmakers Urged to Speak Out

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Free Speech May Be Imperiled by Upcoming Title IX Policy; Lawmakers Urged to Speak Out

WASHINGTON / May 31, 2022 – First Amendment free speech protections currently hang in the balance, affected by a variety of social cross-currents and political agendas. SAVE urges Republican and Democratic lawmakers to speak out forcefully to restore free speech in colleges and universities across the nation.

National leaders such as Bill Maher and Elon Musk have called for an end to restrictive speech codes (1). Netflix recently instructed its employees to be tolerant of viewpoint diversity, or seek employment elsewhere (2). And 84% of college students say free speech rights are extremely or very important, according to a Knight/Ipsos poll (3).

Several recent developments proffer hope to proponents of campus free speech:

  1. Earlier this month, Georgia enacted a law to strengthen campus free speech, including a provision designed to thwart the establishment of so-called “free speech zones.” (4)
  2. Last week a federal judge granted a preliminary injunction against the University of Houston, saying the school’s definition of harassment was unduly broad and served to constrict free speech (5).
  3. Positive developments in Ohio, Oklahoma, and Florida have been reported (6).

But two worrisome trends foretell growing restrictions on free speech:

  1. School Title IX policies often include a requirement that transgenders be referred to by their preferred pronouns. In a recent Wisconsin case, a boy was charged with Title IX sexual harassment for not referring to a female classmate as “they” or “them” (7). Forced speech is a violation of free speech.
  2. At the University of Washington, new Diversity, Equity, and Inclusion (DEI) standards for faculty tenure decisions are causing faculty members to be “afraid to speak out, say what they really think.” (8)

Recently a coalition of 88 groups announced its opposition to the plan of the U.S. Department of Education to release a new Title IX regulation (9).  One of the concerns of coalition members focused on how the new Title IX policy would be used to stultify free speech.

SAVE urges lawmakers to speak out to assure the upcoming Title IX regulation protects and enhances constitutional free speech guarantees. Contact Department of Education Secretary Miguel Cardona, telephone (202) 401-3000; fax (202) 260-7867; email ocr@ed.gov.

Links:

  1. https://nypost.com/2022/05/28/america-might-finally-be-waking-up-to-wokeness/
  2. https://jobs.netflix.com/culture
  3. https://www.prnewswire.com/news-releases/knight-ipsos-poll-college-students-covet-free-speech-rights-but-view-them-as-increasingly-fragile-301466835.html
  4. https://www.insidehighered.com/quicktakes/2022/05/04/georgia-law-bans-%E2%80%98free-speech-zones%E2%80%99-public-colleges
  5. https://campusreform.org/article?id=19623&
  6. https://www.saveservices.org/2022/04/twitter-controversy-highlights-precarious-state-of-campus-free-speech-interested-persons-urged-to-act-by-friday/
  7. https://www.dailymail.co.uk/news/article-10814979/Wisconsin-school-district-files-Title-IX-complaint-against-3-middle-school-students.html
  8. https://www.thecollegefix.com/cloud-of-fear-grips-university-of-washington-as-dei-tenure-requirement-advances/
  9. https://www.saveservices.org/2022/05/88-groups-call-on-dept-of-education-to-cancel-plans-for-new-title-ix-regulation/
Categories
Campus Due Process Free Speech Office for Civil Rights Press Release Sexual Assault Sexual Harassment Title IX

82 Leading Professors, Attorneys, and Others Call on Dept. of Education to Suspend Plan to Issue New Title IX Regulation

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

82 Leading Professors, Attorneys, and Others Call on Dept. of Education to Suspend Plan to Issue New Title IX Regulation

WASHINGTON / May 2, 2022 – Today, 82 leading professors, attorneys, and others are issuing a call for the Department of Education to “immediately suspend all plans to issue a new Title IX regulation due to the Department’s inability to provide a sound explanation why the 2020 regulation requires revision.” (1) The thought leaders include professors of law and other disciplines, leading civil rights attorneys, physicians, women’s rights advocates, non-profit executives, a former university president, and other persons from across the country (2).

The 82 thought leaders are echoing the calls of two other groups that are urging the federal Department of Education to drop plans to issue a new Title IX regulation.

  1. On April 4, 26 leading organizations sent a letter to the Department of Education noting that concludes, “We strongly urge the Department to set aside its Title IX rulemaking and to allow institutions to continue their efforts to comply with the 2020 Rule.” (3)
  2. On April 5, the Attorneys General from 15 states issued a letter expressing concerns regarding the proposed regulation’s “detrimental effect,” and calling on the Department to “cancel its plans to engage in rulemaking on Title IX.” (4)

The three groups’ concerns revolve around the likelihood that the new regulation will give rise to a wave of civil rights lawsuits in the areas of free speech, due process, and women’s sports:

Free Speech: A federal appeals court recently ruled that the University of Central Florida’s broadly worded free speech policy violates the First Amendment. In a 38-page decision, Judge Kevin Newsom wrote the UCF policy “objectively chills speech because its operation would cause a reasonable student to fear expressing potentially unpopular beliefs.” (5)

Due Process: It is widely believed that the upcoming regulation will reduce due process protections for accused students and faculty members (6).  SAVE’s Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation summarizes 175 lawsuits to date in which judges have ruled in favor of the accused (7).

Women’s Sports: The new regulation would redefine “sex” to include sexual orientation and gender identity (8). This would allow transgenders, who are generally taller and stronger, to compete in sports events against persons who were biological females at birth. This would vitiate the purpose of Title IX, which is to assure fairness for all students regardless of sex. To date, 12 states have enacted laws that ban the participation of transgenders against persons who were biological females at birth (9).

Persons are urged to contact Secretary Miguel Cardona and request that he immediately suspend plans to issue a new Title IX regulation. Telephone (202) 401-3000; fax (202) 260-7867; email ocr@ed.gov.

Links:

  1. saveservices.org/wp-content/uploads/2022/05/Stop-the-Weaponization-of-Title-IX-Resolution-5-2-22.pdf
  2. https://www.saveservices.org/camp/weaponization/
  3. https://dfipolicy.org/wp-content/uploads/2022/04/Title-IX-Coalition-Letter-to-OCR-04.04.2022.pdf
  4. https://media.dojmt.gov/wp-content/uploads/Title-IX-Coalition-Letter-4.5.22.pdf
  5. https://speechfirst.org/wp-content/uploads/2021/02/UCF-Op-2.pdf
  6. https://lawliberty.org/forum/a-tale-of-two-statutes/
  7. https://www.saveservices.org/wp-content/uploads/2022/04/Analysis-of-Title-IX-Regulation-3.24.2022.pdf
  8. https://www.washingtonpost.com/education/2022/03/30/transgender-discrimination-title-ix-rule-students/
  9. https://katv.com/news/nation-world/more-states-push-legislation-banning-transgender-athletes-from-womens-sports-trans-competitors-lia-thomas-save-womens-sports-iowa-kentucky-south-carolina-high-school-sports-gender-biological-sex
Categories
Campus Department of Education Due Process Free Speech Press Release

Twitter Controversy Highlights Precarious State of Campus Free Speech. Concerned Persons Urged to Act by Friday.

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Twitter Controversy Highlights Precarious State of Campus Free Speech. Concerned Persons Urged to Act by Friday.

WASHINGTON / April 26, 2022 – Monday’s news that Elon Musk reached an agreement to purchase Twitter for $44 billion has triggered heated debate about the role of free speech in American society, including on college campuses.

While many hailed the Twitter purchase as helping to restore democratic ideals, Robert Reich, former U.S. secretary of labor and professor at the University of California at Berkeley, darkly warned that Musk was seeking to “control one of the most important ways the public now receives news.” (1)

The dismal state of campus free speech is revealed by a recent survey of 481 colleges. The survey found that only 12% of colleges received a “green light” rating, meaning the schools had no written policies that seriously imperil free speech (2).

Three recent developments reveal growing momentum in the national effort to restore free speech on college campuses:

  1. Ohio: Last week, it was announced that Shawnee State University had agreed to pay philosophy professor Nick Meriwether $400,000 after disciplining him for not using a transgender student’s preferred pronouns (3).
  2. Oklahoma: Governor Kevin Stitt signed HB 3543 into law, which will establish the Oklahoma Free Speech Committee to review First Amendment complaints at public universities in the state (4).
  3. Florida: Last Thursday, a federal appeals court ruled that the University of Central Florida’s broadly worded free speech policy violates the First Amendment. In a 38-page decision, Judge Kevin Newsom wrote the UCF policy “objectively chills speech because its operation would cause a reasonable student to fear expressing potentially unpopular beliefs.” (5)

Unfortunately, a new threat to campus free speech now looms. In May, the federal Department of Education is expected to release a draft Title IX regulation that many fear will reduce due process protections for students and faculty members accused of violating campus speech codes (6).

In response, the Attorneys General from 15 states sent a strongly worded letter on April 5 to the Department of Education. The letter concludes, “We strongly urge the Department to cancel its plans to engage in rulemaking on Title IX.” (7)

SAVE invites interested persons to contact the Department of Education and urge that the new regulation:

  • Preserve the presumption of innocence
  • Not expand existing definitions of sexual harassment
  • Mandate live hearings with cross-examination of the parties

Contact Secretary Miguel Cardona, telephone (202) 401-3000; email ocr@ed.gov; fax (202) 260-7867.

The new Title IX regulation is expected to be issued in May. Persons are urged to contact Secretary Cardona by this coming Friday, April 29.

Links:

  1. https://www.theguardian.com/commentisfree/2022/apr/12/elon-musk-internet-twitter
  2. https://www.thefire.org/resources/spotlight/reports/spotlight-on-speech-codes-2022/
  3. https://www.npr.org/2022/04/20/1093601721/shawnee-state-university-lawsuit-pronouns
  4. https://legiscan.com/OK/bill/HB3543/2022
  5. https://speechfirst.org/wp-content/uploads/2021/02/UCF-Op-2.pdf
  6. https://lawliberty.org/forum/a-tale-of-two-statutes/
  7. https://media.dojmt.gov/wp-content/uploads/Title-IX-Coalition-Letter-4.5.22.pdf
Categories
Campus Due Process Free Speech Law & Justice Victims

Abolish the Constitution? College Administrators Need to Shore Up Due Process and Free Speech, Or Face Dire Consequences

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Abolish the Constitution? College Administrators Need to Shore Up Due Process and Free Speech, Or Face Dire Consequences

WASHINGTON / December 14, 2021 – Students at Yale University (1) and the University of Florida (2) have signed petitions calling for the “abolition” of the United States Constitution. Students explained their support for the petition by saying, “There are a lot of outdated things in there that nowadays aren’t accepted” and the Constitution “wasn’t written for the 21st century.”

The petitions highlight an erosion of support for bedrock constitutional protections such as due process. As a result, administrators are seeing an increase in campus vigilantism, which ignores the presumption of innocence for the accused. Following are three recent cases:

  • A former student at SUNY-Purchase filed a lawsuit against the college, charging the school failed to protect him from student harassment over an alleged sexual assault incident (3).
  • Last month a group of Syracuse University protesters swarmed the front of a college fraternity, chanting the name of an alleged offender and demanding, “Kick him out, kick him out. ‘Alleged’ my ass, ‘alleged’ my ass.” (4)
  • At the University of Maryland, Baltimore County, the student newspaper ran an article describing three male students as “admitted rapists,” despite the fact that the three had won their Title IX case and the local prosecutor declined to press charges. As a result, the institution agreed to pay $450,000 in response to a defamation lawsuit (5).

Free speech is also under attack.

A recent survey of students at 159 leading colleges conducted by College Pulse, FIRE, and RealClear Education reveals that only 16% of institutions received a “Green” rating, meaning that institutional policies “do not seriously threaten speech.” (6) One student at Arizona State University confided, “As an English major, just about every class I’ve taken has touched on the ‘dangers’ of white people and whiteness….As a student, I don’t feel comfortable calling this what it is: a racist ideology.”

Faculty members are seeing a curtailment of their free speech rights as well, giving rise to groups such as the Alumni Free Speech Alliance (7) and Princetonians for Free Speech (8).

Due process and free speech are bulwarks of a democratic and free society. College administrators who acquiesce to campus activists are likely to face dire consequences including continued declines in student enrollments (9), shrinking budget allocations (10), decreased alumni contributions (11), and costly lawsuits (12).

Citations:

  1. https://www.youtube.com/watch?v=FJ2aYKj1M5U
  2. https://www.campusreform.org/article?id=18168
  3. https://nypost.com/2021/10/23/suny-didnt-protect-nyc-man-from-harassment-after-rape-claim-suit/
  4. https://dailyorange.com/2021/11/stand-with-survivors-syracuse-university-phi-kappa-psi/
  5. https://www.dailywire.com/news/they-were-accused-of-rape-and-had-their-names-printed-in-the-school-paper-the-school-just-paid-them-450000
  6. https://rankings.thefire.org/
  7. https://alumnifreespeechalliance.com/
  8. https://princetoniansforfreespeech.com/
  9. https://www.npr.org/2021/10/26/1048955023/college-enrollment-down-pandemic-economy
  10. https://www.cbpp.org/research/state-budget-and-tax/states-can-choose-better-path-for-higher-education-funding-in-covid
  11. https://www.wsj.com/articles/alumni-withhold-donations-demand-colleges-enforce-free-speech-11638280801
  12. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
Categories
Campus Due Process Free Speech Title IX

Expelling the Innocent: The New Campus Black List

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.

Categories
#MeToo Campus Civil Rights Discrimination Due Process False Allegations Free Speech Investigations Office for Civil Rights Sexual Harassment

Black Immigrant Chaplain Claims Christian College Used Bogus Title IX Investigation to Fire Him

‘From the outset … race was very much at issue’

A professor’s race heavily factored into his firing on the grounds of making racially and sexually insensitive comments, according to his attorney.

Wheaton College, known informally as the Harvard of evangelical colleges, publicly announced the dismissal of Chaplain Tim Blackmon earlier this month, more than a month after his firing.

The 50-year-old black immigrant from the Netherlands has since vigorously disputed the allegations against him, telling the Chicago Tribune that “they are a complete misconstrual of the comments” he made.

President Philip Ryken justified the college’s firing of Blackmon by publicly accusing him of several violations Wheaton learned about last fall. He had “repeatedly used an ethnic slur” to refer to an Asian employee and suggested that a female staff member sit on his lap during a training session for sexual harassment, according to Wheaton’s statement.

The black chaplain also circulated a meme to employees about masturbation and “arranged” to have the book “The Complete Idiot’s Guide to the Kama Sutra” placed on a female staff member’s desk, the college claimed.

Wheaton claimed that Blackmon “admitted to certain allegations, which is patently untrue,” his attorney Andrew Miltenberg told The College Fix in an email. The ex-chaplain “continues to refute” both the allegations and the context Wheaton applied to them.

“From the outset, Chapl[a]in Blackmon’s race was very much at issue,” contrary to Wheaton’s race-neutral portrayal of the allegations, Miltenberg said.

Citing Wheaton’s allegedly poor record with racial and ethnic diversity, “especially with the African American community,” the attorney said that Blackmon has been treated far worse than his white colleagues.

Pressure to conform with the prevailing views of the #MeToo movement and the controversies surrounding Title IX investigations resulted in an overreaction from the college, the attorney added.

Ultimately, Wheaton chose to oust Blackmon so that it could maintain the mantle of being an “ethnically diverse” college all the while “return[ing] to its roots – that being a primarily white educational institution,” Miltenberg alleged. Yet the fired employee and his attorney have not decided whether to take legal action yet.

When asked to specify some of the college’s allegations about Blackmon – including the exact racial slur – beyond its curt statement, Director of Marketing Joseph Moore stated: “Wheaton College is not providing further comment.”

That supposed slur, Blackmon told a blogger last week, stemmed from an “inside joke” about the song “Black and Yellow” by the rapper Wiz Khalifa and its relevance to working in a “predominantly white institution.”

Theological articles he shared were ‘ideologically problematic’ for accuser

Wheaton’s internal statement to its community, which Moore provided and which preceded Blackmon’s response, made clear that the college did not find that he engaged in “sexually immoral relationships or physical sexual misconduct.” Rather, its investigation “revealed conduct inconsistent with Wheaton’s policies and commitments.”

Moore did not not provide The Fix with the specific policies and commitments purportedly breached by Blackmon, however.

“To be clear, I was completely blind-sided by this Title IX investigation,” Blackmon said via his attorney in response to Wheaton’s statement.

“I recently learned this was the second time this individual filed a Title IX against me,” the first one occurring in 2017 after Blackmon had “shared five theological articles that the complainant [accuser] deemed ideologically problematic.” (He doesn’t give a more specific description of the accuser; Wheaton’s language suggests at least two women complained.)

Wheaton’s Title IX office didn’t investigate at the time, “as it was a clear misuse of the Title IX investigative process,” the chaplain continued. But in the most recent complaint, he said that “several of my comments have been taken completely out of their factual and, in some cases, religious context.”

He emphasized that no one accused him of “flirtation, inappropriate relationships, sexual misconduct or any sexual action towards anyone,” and neither the accuser nor “any witness, communicate[d] offense or discomfort.”

While it left out his race when justifying his firing, Wheaton emphasized Blackmon’s race when hiring him five years ago as the first nonwhite chaplain in its 155-year history.

Rodney Sisco, director of the Office of Multicultural Development, told The Wheaton Record: “I think change is change, and change is always difficult. Chaplain Blackmon is going to be seen differently.”

While Sisco was personally excited to have a “person of color leading the chaplain’s office,” he suspected that some community members would be “a little worried, asking, ‘Have we made some sort of strange mistake?’” He concluded by saying: “I think there will be some folks who push against the college.”

At the time, only 2.3 percent of the student body was comprised of African Americans. The most recent figures from 2017 put it at 3.03 percent––its white population is at 70.8 percent. (Ranking service College Factual says Wheaton has more “non-resident alien” students than African Americans.) This is at a college that was founded by evangelical abolitionists in 1860 and was a major stop along the Underground Railroad.

“Wheaton has failed in its attempt, if any were even made, to achieve truly measurable and transformative cultural diversity,” Miltenberg, who has represented hundreds of college students accused of sexual misconduct, told The Fix.

‘The Complete Idiot’s Guide to the Kama Sutra’ was a regifted ‘gag’

In a separate public statement, the attorney alleged that Wheaton administrators “are now publicly smearing and defaming my client in the media by using out of context statements and false accusations.”

Contrary to President Ryken’s claim, Blackmon “never asked his secretary to sit on his lap during a sexual harassment training,” and “never harassed anyone, sexually or racially,” according to Miltenberg. The college simply “weaponized the Title IX process to get rid of someone whose words and ideas didn’t always conform to their views.”

The lap allegation, Blackmon told The Roys Report blog last week, stemmed from his critical comments about “the mandatory (but rather patronizing) sexual harassment training video” he was required to watch when starting at Wheaton in September 2015.

He said he told the accuser: “Come on, it’s not like I don’t know what sexual harassment is. It’s not like I’m asking my secretary to sit on my lap and take the training for me.”

The context for another allegation, about his comments to a newly married female employee, was the fact that her “brand-new husband had been pulling all-nighters for grad-school,” Blackmon continued:

As a way of celebrating their newly wedded bliss I said, “Maybe you should surprise him and pay him a conjugal visit.” As to the conjugal-visit comment, I was genuinely trying to commiserate with her about the challenges of graduate school and newlyweds.

Regarding the incident involving “The Complete Idiot’s Guide to the Kama Sutra,” Miltenberg told The Fix that Blackmon “received the book from a former parishioner.”

That person’s wife wrote about the incident in a comment on a blog post on the Blackmon controversy: “I left the book on Tim’s desk. During our annual Church bazar [sic] I found the book in the donated items as we set up.” She thought that it would be “ironic to put the book on Tim’s desk.”

Later, after she and her husband “laughed about it,” her husband “snuck into Tim’s office and hid it in his library where it sat for years. I guess it made its way to Chicago. I thought it was funny to put a book that silly in Tim’s office. And the idea I was a victim is stupid.”

According to Miltenberg, at some point Blackmon “told the complainant the story after he found the surprise gag gift in his [college’s] library and then gave her the book. He thought it was a funny story. That’s all there was to it.” (Blackmon told The Roys Report he shared the story with others, but admitted that it sounded bad when “taken out of its contexts without the prank.”)

Because this was “such a benign event,” the attorney continued, “we believe that Wheaton was looking for an excuse to sever its relationship with its first African American Chaplain” and return to being a predominantly white educational institution.

‘China-man’ was an ‘inside joke’

Regarding the “ethnic slur” he allegedly used repeatedly toward an Asian American employee, Blackmon provided the context to The Roys Report.

When he started working at Wheaton, Blackmon said one of his Korean ministry colleagues was “mistaken” for a professor. They “commiserated about the realities of beginning to work” at the predominantly white institution, comparing their situation to the Wiz Khalifa song “Black and Yellow”:

[A] black pastor from Holland and a Korean ministry associate. I said, “Maybe we should call you the China-man because people can’t even tell one Asian from another, one Chinese from a Korean.” More laughter ensued and for the next couple of weeks we commiserated about the ironies of working in a predominantly white institution, and we soon moved on from our inside joke and got to work.

“This,” said Blackmon, “is what they are considering the racial/ethnic slur.”

Miltenberg also suspects that “Wheaton may have overreacted out of fear of public pressure given the #MeToo movement and other Title IX related controversies as of late”:

Wheaton has repeatedly shifted the landscape in Chaplain Blackmon’s case, at times claiming it was Title IX issue, and other times, suggesting that the situation did not fall under Title IX.

This shifting has impeded Blackmon’s ability to appropriately respond to the allegations as well as “denying him the right to counsel,” Miltenberg said. The college has also ignored its own “employee conflict resolution procedures,” he claimed.

Its actions “have put Chaplain Blackmon’s future very much at risk,” Miltenberg said.

Source: https://www.thecollegefix.com/black-immigrant-chaplain-claims-christian-college-used-bogus-title-ix-investigation-to-fire-him/

Categories
Campus Free Speech Sexual Assault Sexual Harassment Title IX Title IX Equity Project

PR: Universities and Colleges Take Steps to Implement New Title IX Regulation

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Universities and Colleges Take Steps to Implement New Title IX Regulation

WASHINGTON / June 25, 2020 – Following lengthy public debate, the U.S. Department of Education issued a new Title IX regulation on May 6, 2020, which carries the force and effect of law. [1]

The new regulation takes effect on August 14, 2020. This means school administrators and Title IX Coordinators have only about 50 days to enact policies and revise training procedures to ensure fairness and equality for all students.

Within this time frame, schools must restore fairness on campuses by upholding students’ rights to written notice of allegations, the right to an advisor, as well as the right to submit, cross-examine, and challenge evidence at a live hearing. One of the key provisions will require colleges to post their Title IX training materials on the websites for public review.[2]

To date, the regulation has been endorsed by editorial boards of the following newspapers: Detroit News, The Oklahoman, New York Daily News, Wall Street Journal, Pittsburgh Post-Gazette, and Philadelphia Enquirer. [3] The Independent Women’s Forum has highlighted how the new regulation will help restore due process on campus and bring an end to the so-called “Kangaroo Courts.” [4]

SAVE has identified numerous ways that the new rule will support sexual assault complainants. [5] Most importantly, the regulation establishes a legally enforceable duty of universities to respond to such cases in a timely manner.

Schools have varied in their initial responses to the new standard.

In a letter to the University of Wisconsin System (UWS), Governor Tony Evers stated, “UWS is required to implement these changes through administrative rule making.” Evers mandated his Board of Regents to do so by submitting a scope statement to him, but rejected the first one on the grounds it was too vague. [6]

The South Dakota Board of Regents was scheduled to vote this week to implement the procedures: “Using a hearing examiner and affording full due process at the onset enhances the probability of getting to the correct outcome sooner, rather than a later, an issue that has haunted Title IX nationally in a litany of high profile court appeals in recent years.” [7]

Anecdotal reports indicate other leading universities have initiated the process of implementing the new regulation.

In contrast, a memo from University of Denver Chancellor Jeremy Haefner indicates the University is focusing on ensuring the changes in the final rule support survivors: “I am writing to ensure you that these changes will in no way compromise our commitment to creating an environment in which all members of the DU community feel safe reporting their experiences and remain confident that their cases will be heard thoroughly, fairly, and with respect.” [8] Unlike other schools, the memo does not mention fair and equitable procedures for all parties.

In October 2019, SAVE launched its Title IX Equity Project to assure compliance with Title IX requirements. As a result, the Office of Civil Rights has opened over 100 investigations to date regarding university scholarship policies that discriminate against male or female students. [9] The Title IX Equity Project has enjoyed extensive media coverage, as well. [10]

Citations:

[1] https://www2.ed.gov/about/offices/list/ocr/newsroom.html

[2] https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students

[3] http://www.saveservices.org/title-ix-regulation/

[4] https://www.iwf.org/2020/05/06/new-title-ix-regulations-restore-due-process-on-campus/

[5] http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

[6]https://content.govdelivery.com/attachments/WIGOV/2020/06/15/file_attachments/1474234/Evers_2020_06_15_UWS%20Ch%2017.pdf

[7] https://www.sdbor.edu/the-board/agendaitems/2014AgendaItems/2020%20Agenda%20Items/June24_20/5_B_BOR0620.pdf

[8] http://www.saveservices.org/2020/06/university-of-denver-chancellor-memo-regarding-title-ix-compliance/

[9] http://www.saveservices.org/equity/ocr-investigations/

[10] http://www.saveservices.org/equity/