Category: Investigations

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Accountability Campus Civil Rights Department of Education Discrimination Investigations Law & Justice Legal Office for Civil Rights

Sex discrimination in Oklahoma higher education

by: Adam Kissel, October 22, 2020

The world record for filing U.S. Department of Education complaints is probably held by an advocate for special education. She has filed thousands of complaints about equal access to education for people with disabilities.

Her newest challenger is economist Mark J. Perry, a scholar at the American Enterprise Institute, who has filed hundreds of Title IX civil rights complaints about equal access on the basis of sex. He is winning, which often means ending unlawful discrimination against male students. Mr. Perry recently preserved civil rights at the University of Central Oklahoma, which had advertised that “the 2020 Computer Forensics Summer Academy is for high school female students. The application will be unavailable for male students.”

But sex discrimination need not be so blatant to be unlawful. In Teamsters v. United States in 1977, the U.S. Supreme Court noted that discrimination is not limited to direct signs that people will see (like “no boys allowed”) but can include “actual practices” such as how the opportunity is publicized and “recruitment techniques.”

It appears that many programs at Oklahoma colleges and universities are discriminatory and violate Title IX.

Not only might these programs violate federal law, but most of them might also violate the state constitutional provision against preferential treatment or discrimination in public education on the basis of sex.

At the University of Oklahoma (OU), for example, the Halliburton Women’s Welcome program explicitly excludes male students. This educational program provides “an opportunity to get a jumpstart on forming unique connections that will facilitate your success as an engineering or science student” and provides the benefit of “the opportunity to move into the residence halls early.” Under “WHO?” it specifies: “All WOMEN who: have been accepted to OU and will be starting classes in Summer or Fall 2020.” To be clear, OU put the word “WOMEN” in all caps and underlined it.

The restriction in that program is blatant. OU also holds a ONEOK Working Woman Workshop, which claims to be just for women: the mission of the workshop is to provide OU women engineering students “with professional and personal development opportunities that contribute to the preparation of students for career paths in industry and academia.” The name of the program and its mission both make it clear who is wanted and who is not.

OU also appears to discriminate against younger male students. Its Girls Learning and Applying Math and Science (GLAMS) program, to be held online on November 13, states that “Girls in their 6th, 7th or 8th grade year in the spring of this academic year should apply.” The program adds, “African American, Hispanic/Latino, American Indian/Alaskan Native and or First Generation students are strongly encouraged to apply; however, the program considers all applicants.” But boys are clearly unwanted. Photos of the program show 100% girls.

Additionally, OU holds an annual High School Girls Day sponsored by Shell, which similarly limits older boys from participating: “Current high school girls in the 9th, 10th, 11th and 12th grade in the spring of this academic year should apply.”

These four examples are just the beginning at OU and elsewhere.

At Oklahoma State University (OSU), in contrast to OU, the Society of Women Engineers (SWE) explicitly claims to “assist men and women in leadership and professional skills.” SWE holds SWE Day, a hands-on educational program to introduce “high school females” to the college of engineering, only for girls. SWE is primarily a club and does not necessarily represent OSU officially, so SWE Day may be more likely to fall afoul of campus nondiscrimination rules than become a Title IX case.

The University of Tulsa (TU) Department of Mathematics explicitly limits its Tulsa Girls’ Math Circle program “to girls from the Tulsa-area who are in 6th, 7th and 8th grades.” The program’s FAQ specifies that the program is for “Any intellectually curious and highly capable girl who is in grade 6 or above from any school in the Tulsa area.” Although TU is a private institution, it is bound by Title IX and equally in danger of losing federal funds if found to discriminate on the basis of sex.

TU also says it hosts girls (only) on campus for Tech Trek Tulsa, a weeklong program “for girls entering 8th grade.” This program appears, however, no longer to exist at TU. But TU also says it holds Sonia Kovalevsky Day, an annual “all day, all girls, all math” event that has continued into 2020. The partner organization, the Tulsa Regional STEM Alliance, might no longer partner with TU, since its website now says that the Alliance partners with Tulsa Community College (TCC) for this program.

TCC also runs the Mothers on a Mission program for students who are single mothers. This program provides “resources to empower single mothers through powerful speakers, peer collaboration, individual coaching, study help, and leadership training.” It appears that single fathers are not invited, although one line in the description refers to student-parents instead of mothers in particular.

Northeastern State University (NSU) offers a Girl Powered S.T.E.A.M. Workshop that is “centered around girls” ages 6–14. NSU says that “this is an initiative to educate girls in more S.T.E.A.M. areas.” Although the webpage says that “all are welcome,” the initiative is evidently only for girls of those ages, not boys.

Rogers State University (RSU) runs a Girls STEM Camp. Information online is thin, but it appears to be for girls only.

Not only might these programs violate federal law, but most of them might also violate the state constitutional provision against preferential treatment or discrimination in public education on the basis of sex. They also might violate the institutions’ own rules and policies against discrimination. Taking them together, one might see not just an unlawful bias in individual programs, but institutional bias at entire universities and in the public postsecondary system altogether. While Mr. Perry appears to have more Oklahoma work to do at the federal level, the civil rights staff in the state Attorney General’s office may also have some work to do.

The best solution, though, is for the colleges to remedy all discrimination before anyone files a complaint. Individual colleges, the state regents, and the Oklahoma State Department of Education may want to investigate sooner rather than later. Mr. Perry knows what he is doing and is effective in rooting out discrimination.

Adam Kissel is a former Deputy Assistant Secretary for Higher Education Programs in the Office of Postsecondary Education at the U.S. Department of Education. He previously served as vice president of programs for the Foundation for Individual Rights in Education, directing the program that defended the fundamental rights of students and faculty members across the country. He holds degrees from Harvard University and the University of Chicago.

https://www.ocpathink.org/post/sex-discrimination-in-oklahoma-higher-education

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Civil Rights Department of Education Department of Justice Due Process False Allegations Investigations Legal Office for Civil Rights Sexual Assault Title IX

Ruth Bader Ginsburg Agreed With Amy Coney Barrett That Campus Kangaroo Courts Were a Problem

Federal appeals court Judge Amy Coney Barrett and the late Supreme Court Justice Ruth Bader Ginsburg agreed Title IX code of conduct trials were flawed.

Wednesday, September 23, 2020

by Jon Miltimore

In 2018, following the nomination of Brett M. Kavanaugh to the Supreme Court, President Trump tipped his hand about who he’d be inclined to choose if given the opportunity to fill another vacancy on the high court.

That person, the New York Times observed, was Judge Amy Coney Barrett, a conservative law professor whom Trump tapped for a federal appeals court in 2017.

A week ago, it appeared the chances of Trump filling another Court vacancy in his first term were slim. However, the death of Supreme Court Justice Ruth Bader Ginsburg, who died September 18 during her 27th year on the high court just six weeks before the presidential election, means Trump will get the opportunity to send another nomination to the Republican-controlled Senate.

Some sources claim Barrett still has the edge to win the nomination, though Cuban-American federal appellate judge Barbara Lagoa is also generating buzz.

As the Brett Kavanaugh nomination and previous hearings have shown, Supreme Court battles can be nasty, even nastier than typical political battles. There’s little reason to expect the filling of Ginsburg’s seat to be any different—even if it wasn’t coming just weeks before a presidential election—so it’s no surprise to see that news media are already dissecting Barrett’s court opinions.

Just 48 hours after Ginsburg’s death, the Washington Post ran an article on Barrett’s opinion in Doe v. Purdue University, a Title IX—the rule prohibiting sex-discrimination in public education —case involving a Purdue student (John Doe) who was suspended by the university after being accused of sexual assault by a former girlfriend (Jane Doe).

According to John Doe, as described by a court summary of the case, the couple met in Purdue’s Navy ROTC program and started dating in the fall of 2015. They soon began a sexual relationship. In December, Jane attempted to take her own life in front of John. He reported the attempt to the school, and the couple ceased dating.

“A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent,” the Washington Post reports. “Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.”

These are serious charges that demand a serious appraisal of the facts and due process. But like plaintiffs in Title IX cases—some 600 lawsuits have been filed against universities since Barack Obama’s Education Department issued its “Dear Colleague” letter to schools warning them they’d lose federal funding if they didn’t prioritize complaints of sexual assault—John Doe encountered something else.

Court documents show the hearing resembled a show trial, including a false confession, that resulted in a year-long suspension of John Doe that cost him a spot in the ROTC program.

“Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations,” the Post reports. “Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.”

All of this fits the pattern of the kangaroo courts universities established after the Dear Colleague letter. As Reason has spent the last several years documenting, these cases tend to presume individuals guilty until proven innocent, while depriving them of the due process necessary to prove their innocence.

Barrett is hardly alone in her jurisprudence regarding the importance of due process. As the Post concedes, campus kangaroo courts were widely criticized by civil libertarians across the political divide.

“Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Nancy Gertner, a Harvard Law School professor and retired federal judge appointed by President Clinton.

It was these concerns that prompted US Secretary of Education Betsy DeVos to issue new rules to Title IX hearings in April that strengthened the rights of those accused of sexual misconduct, including the right to cross-examine accusers and preventing investigators from also serving as case judges. (Former Vice President Joe Biden has said he’d reverse Devos’s ruling if elected president, which prompted some to point out that Biden, who like the current president stands accused of sexual assault, would be guilty under the current standard.)

Few would argue that protecting the rights of sexual assault victims is important, but it’s worth noting that among the critics of the previous standard was Ruth Bader Ginsburg.

The Post admits the “feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine” when she said many of the criticisms of college codes were legitimate.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” Ginsburg said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg is correct that due process and a fair hearing for the accused are fundamental principles of the American system. Yet hundreds of individuals who believe they were denied fair hearings and are seeking redress from universities have found the path difficult due to legal technicalities.

Plaintiffs tend to claim their rights were violated in two ways: 1) the unveristiy violated the plaintiff’s right to due process; 2) the school discriminated against the plaintiff on the basis of sex, violating Title IX.

Prior to Purdue vs. Doe, the Post reports, courts often upheld accused student claims of due process violations “but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.” Essentially, plaintiffs had to prove not just that their due process rights were violated, but that they were violated on the basis of their sex.

Barrett’s ruling, however, was instrumental in lowering the burden of proof plaintiffs had to show.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in her opinion, citing the political pressure the Obama administration had put on schools to address sexual assault.

Barrett’s opinion was adopted by other courts, and it was this reasoning that caused women’s rights groups to criticize the appellate judge.

Emily Martin of the National Women’s Law Center bristled at the idea of “replacing [Ginsburg] with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

We’ll never know if Ginsburg would have believed it was plausible to assume that sex played a role in the university show trials that allowed hundreds of people accused of sex crimes to be found guilty without due process or a fair hearing.

What we do know is that on the broader issue of campus kangaroo courts, Ginsburg and Barrett found common ground.

“We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally,” Ginsburg told The Atlantic in 2018.

Indeed. It was for this reason that America’s founders carved out specific protections for the principle, declaring in the Fifth Amendment that no person shall “be deprived of life, liberty, or property, without due process of law… .”

Universities have long been able to deny due process to students accused of sexual crimes, because the allegations against them are not criminal charges. This is a grave injustice.

Accusing individuals of heinous sexual misconduct is a serious matter. A verdict of guilt will be carried with students for the rest of their lives and has the potential to impact their career and future earnings, not to mention their reputation. Such matters are far too serious to withhold from the accused fundamental tenets of our system designed to ensure justice and fairness.

Justice Ginsburg and Judge Barrett might have had starkly different constitutional views, but on this basic idea of justice they found common ground.

Jonathan Miltimore is the Managing Editor of FEE.org. His writing/reporting has been the subject of articles in TIME magazine, The Wall Street Journal, CNN, Forbes, Fox News, and the Star Tribune.

https://fee.org/articles/ruth-bader-ginsburg-agreed-with-amy-coney-barrett-that-campus-kangaroo-courts-were-a-problem/

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Department of Education Department of Justice Investigations Legal Office for Civil Rights Sexual Assault Title IX

Amy Coney Barrett, potential Supreme Court nominee, wrote influential ruling on campus sexual assault

Amy Coney Barrett, a leading contender for the Supreme Court seat held by the late Ruth Bader Ginsburg, wrote an influential appellate decision last year that made it easier for students accused of sexual assault to challenge universities’ handling of their cases.

Barrett led a three-woman panel of judges that said Purdue University may have discriminated against a male student accused of sexual assault when it suspended him for a year, a punishment that cost him his spot in the Navy ROTC program.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in the case, in which the accuser was identified as Jane Doe and the accused as John Doe.

On Saturday, President Trump said he would nominate a woman in the next week to fill Ginsburg’s seat. In a call with Senate Majority Leader Mitch McConnell (R-Ky.), Trump mentioned Barrett and Barbara Lagoa, a judge on the U.S. Court of Appeals for the 11th Circuit, according to people familiar with the matter.

In siding with John Doe, Barrett was in line with the majority of rulings in this area of the law since 2011, when former president Barack Obama’s Education Department warned schools that they risked losing federal funding if they did not adequately prioritize sexual assault complaints.

About 600 lawsuits have been filed challenging decisions in campus sexual assault cases since 2011, of which about 30 have gone to federal appeals courts, said K.C. Johnson, a Brooklyn College and CUNY Graduate Center history professor who tracks these cases. The decision Barrett wrote for the U.S. Court of Appeals for the 7th Circuit in John Doe v. Purdue University is the “single most consequential ruling in this area,” he said, because it set a fair, simplified standard that has been adopted by three other circuit courts, covering 22 states, as well as the federal district court in D.C.

“This case was a trendsetter,” said Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, which bars sex discrimination by institutions receiving federal funding. Sokolow, who also serves as president of ATIXA, an association of Title IX administrators, called the opinion “revolutionary” and said it would make it easier for accused students to bring civil litigation against universities to a jury trial.

The lawsuits brought by male students accused of sexual assault generally argue that universities denied their due process rights, or discriminated against them on the basis of sex in violation of Title IX, or both. In many decisions before the Purdue case, Sokolow said, courts upheld accused students’ due process claims but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.

By contrast, the 7th Circuit did not bother with those legal tests and upheld John Doe’s Title IX claim using a simple, streamlined analysis: Was it plausible that the university had been biased against him because he was a man? Yes, Barrett and her colleagues decided, allowing John Doe to continue to press his case by sending it back to the trial court.

John and Jane were students in Purdue’s Navy ROTC program when they began dating in the fall of 2015, according to a summary of the case in the court ruling that relied on John Doe’s presentation of the facts. They had consensual sexual intercourse numerous times. In December, Jane attempted suicide in front of John. He reported her suicide attempt to the university, and they stopped dating.

A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent. Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.

Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations. Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.

That group had posted on its Facebook page a Washington Post column headlined: “Alcohol isn’t the cause of campus sexual assault. Men are.” The university panel did not allow John to present witnesses, including a roommate of his who disputed Jane’s account. And two of the three members of the panel admitted they had not read the investigative report.

“Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension,” Barrett wrote in a decision released nine months after the case was argued.

The Supreme Court has not ruled on a Title IX campus sexual assault case in the past decade, experts said. But Ginsburg, a feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine in which she was asked about due process for those accused of sexual harassment.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” she said. “Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg added that she thought some of those criticisms of college codes were valid.

Critics of the Obama-era guidance, which was rescinded by the Trump administration in 2017, said it set a standard that made it too easy for school officials to discipline students for alleged sexual misconduct. Advocates for sexual assault victims said the guidance was a necessary step toward addressing colleges’ long-standing neglect of victims’ rights.

In the Purdue opinion, Barrett wrote that John Doe’s allegations of gender discrimination were plausible in part because of the pressure that the Obama administration applied to schools and universities to confront sexual harassment and assault.

“The Department of Education made clear that it took the letter and its enforcement very seriously,” Barrett wrote, referring to the 2011 letter that relayed the Obama administration guidance to universities.

The Obama education department opened two investigations into Purdue in 2016, Barrett noted, so “the pressure on the university to demonstrate compliance was far from abstract.”

Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, said she is troubled by the suggestion that the Department of Education taking sexual misconduct seriously — and pressuring schools to do the same — could be construed as evidence of bias against men. Praising Ginsburg’s legacy of fighting for women’s rights, Martin bristled at the prospect of “replacing someone like that with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

Martin said that many of the university’s actions as described by John Doe would not have been permitted under the Obama-era guidance. As is typical in such cases, the court considered the facts as alleged by John Doe in deciding whether to grant the university’s motion to dismiss his lawsuit.

Nancy Gertner, a retired federal judge and Harvard Law School professor, said she agreed with Martin’s criticism. But she added that many judges have been concerned about the way universities have handled students accused of sexual assault. “Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Gertner, who was appointed to the bench by former president Clinton.

Education Secretary Betsy DeVos issued new Title IX regulations that expanded the rights of the accused and went into effect last month. The regulations require schools to handle sexual harassment and assault allegations differently than they handle any other kind of student misconduct case, Martin said. The new rules require a live hearing with cross-examination of the accuser, unlike in cases of alleged racial harassment, Martin said, “based on the really toxic idea that women and girls are particularly likely to lie about sexual misconduct.”

Supporters of the DeVos rules say that the stakes are so high in sexual-misconduct cases that cross-examination is appropriate and necessary to ferret out the truth when students’ accounts are at odds.

To win his Title IX claim before a jury, John Doe would still have to prove that he was discriminated against on the basis of his sex. His case is pending in district court. In June, Purdue filed a counterclaim asking the court to declare that Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

“The university is seeking a declaratory judgment that John Doe violated Purdue’s policies based on evidence in the record, which the 7th Circuit was not able to consider for procedural reasons at the time of its ruling,” university spokesman Tim Doty said.

Andrew Miltenberg, a New York lawyer who represents John Doe and has represented many accused students in successful lawsuits against their schools, described Barrett’s decision as the “crescendo” of a gradual movement in the courts toward accepting the idea that gender bias against men can shape universities’ handling of sexual assault complaints.

“There are many judges that have talked about the process or procedures being unfair,” he said. “There haven’t been many judges that have come out and said, ‘Hey, it seems to me that gender could have really played a role here.’ ”

https://www.washingtonpost.com/investigations/amy-coney-barrett-potential-supreme-court-nominee-wrote-influential-ruling-on-campus-sexual-assault/2020/09/20/843e964e-fb52-11ea-830c-a160b331ca62_story.html?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most

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Department of Education Investigations Title IX

Will the New Title IX Be Sabotaged?

On August 14, a change of kind occurred in how educational institutions address accusations of sexual misconduct if they wish to receive federal funding. A controversial new Title IX regulation went into effect. Or did it?

In today’s extraordinarily partisan times, there can be cognitive disconnect between official policy and actual practice. One reason: the so-called “right wing” heads most government agencies while a “left wing” bureaucracy often dominates the implementation of policies. In both active and passive-aggressive ways, the bureaucracy constitutes what is called “the resistance.”

Which is going to win? The new Title IX regulation that redefines sexual expression, due process, and free speech on campus? Or the liberal academics,  administrators, and politicians? The conflict offers a fascinating glimpse into the ideological civil war that has broken out within so many government agencies and institutions.

The starting point for discussion is Title IX. Enacted in 1972, Title IX is the Department of Education (DOE) statute that prohibits sex discrimination in federally funded educational programs or activities. It became an ideological flash point in 2011 when the Obama DOE altered it to embrace the much broader goal of gender equity. To do so, the key term “sexual harassment” was expanded to include verbal misconduct like telling bad jokes. Accused students and faculty were “prosecuted” through sexual misconduct hearings which denied them the basics of due process, such as a presumption of innocence. The number of sex discrimination complaints on campus increased from 17,724 (2000-2010) to 80,739 (2011-2020).

The 2011 rules created an ideological divide. One side took a #MeToo approach that demanded accusers, who were and are overwhelmingly female, to be automatically believed; due process, like the right to question an accuser, was viewed as a slap in the face of victimized women. (Note: some surveys find that males report being assaulted at rates comparable to females but they are far less likely to file official complaints.)

The other side took a traditionally Western approach to justice, with due process being its foundation, and to freedom of speech as being essential to academia. Due process advocates pointed to the extreme damage inflicted on people when they cannot defend themselves against possibly false accusations. In political terms, the conflict breaks down basically along Democratic and Republican lines.

After Trump’s election to the presidency, the Obama rules were revoked in 2017. On May 6, 2020, after years of furious debate in public and Congress, new rules were enacted which pushed Title IX back closer to its original intent. The definition of “sexual harassment” was narrowed and due process returned. But front-stage and behind-the-scenes maneuvers have continued between policy and implementation.

The most visible field of battle is the courts, with the most recent lawsuits being called in favor of the Trump DOE. Federal courts in both D.C. and New York declined to block implementation of the new Title IX. The D.C. case was the more significant one because it was brought by 18 Democratic attorney generals.

The legal questions may not be over, however. The preliminary injunctions were denied because plaintiffs failed to demonstrate a likelihood of success, irreparable harm, or damage to the public interest. This means plaintiffs are free to beef up their cases and pursue permanent injunctions. It is unusual for a court that denies a preliminary injunction to grant a permanent one, but it is not unknown.

The courts also offered the “resistance” a potential weapon. The DC federal court noted, “Even though certain conduct may not constitute sexual harassment under the Rule…schools still retain the authority to address and discipline such behavior through their own codes of conduct. As the Department [DOE] stated in one of its filings…’the Rule creates a grievance process only for conduct that falls within the Department’s definition of sexual harassment: if an allegation of misconduct does not fall within that definition, the Rule does not require or prohibit anything of schools regarding whether or how they must respond’.” Educational institutions have wiggle room to develop their own definitions, policies, and protections on sexual harassment, as long as they do not clearly violate Title IX or state laws.

Translation: implementation is now the battleground, and this is where passive-aggressive resistance thrives. In a January 15 op-ed for Inside Higher Education, Brett Sokolow—president of the Association of Title IX Administrators (ATIXA)—advised: “About 20 to 25 percent of the (new Title IX) regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need… to work within those requirements, challenge them in court or find clever work-arounds.” [Emphasis added.]

ATIXA is the main source of national training and legal interpretation for Title IX, with the self-stated mission of “gender equity in education.” It attempted one “clever work-around” a few months ago by challenging a new rule: Campuses must post “all materials used to train” anyone who facilitates a resolution process. There must be transparency. This may seem common sense and a basic to justice, but many of those accused have had to sue to access the colleges’ guidelines used in their own hearings.

The College Fix reported on ATIXA’s reaction to the transparency requirement. At a May 11 webinar, Sokolow told more than 4,200 participants to publish only the title—not the content—of training materials. Why? “Materials from ATIXA…are proprietary and copyrighted,” he explained. “Those materials cannot be posted…because it will violate our copyright. People…are not permitted to have a copy,” which could be reviewed only in an administrator’s office. Objections were to be sent to ATIXA, and the materials would be made available under “comfortable” circumstances. Colleges that comply with the DOE’s transparency requirement, he stated, would “get a letter from us kindly asking to make sure” the materials “are removed.”

The College Fix concluded, “The implication is clear: ATIXA will sue colleges for following a legally binding regulation.”

The DOE swiftly responded. The College Fix reported “a blog post” reiterated “that Title IX training materials, among other ‘important information,’ must be posted on schools’ websites—no exceptions.” Its regulations do “not permit a school to choose whether to post the training materials or offer a public inspection option…If a school’s current training materials are copyrighted or otherwise protected as proprietary business information (for example, by an outside consultant), the school still must comply with the Title IX Rule.”

ATIXA has backpedaled since then, but if Sokolow’s webinar session had not been publicized, would ATIXA’s obstruction have been addressed so quickly…or at all?

ATIXA is undoubtedly planning similar “clever work-arounds” to obstruct the implementation of the new Title IX. An article in Education Drive quotes Sokolow extensively and indicates that the key obstructive strategy will be to argue that the new regulations are too difficult and complex to be instituted. The article refers to “complex new federal regulations.” The following are some of Sokolow’s claims with a brief analysis included in italics.

  • The new “faux tribunal” has a “slow and stilted” pace, and could stretch for days. The current system of investigation and hearings can stretch for many days. Moreover, hearings that determine a young person’s future should be cautious and thorough.
  • “It will take skilled litigators to manage all this.” As opposed to unskilled litigators or adjudicators?
  • Title IX administrators are “irate” because they spent years adjusting to the previous rules, and “now a grenade was thrown in all their efforts.” Regulations often change, and it is the job of administrators to implement them. If they cannot or will not do their jobs, then they should resign.
  • The new regulation is vague. The new rule is less vague than the previous one.
  • Accusers will not want to pursue formal investigations; this discourages them from coming forward.If an accuser does not want an accusation to be examined objectively, then the case should not be pursued in the first place.
  • Adapting the existing system during the health crisis is difficult. This is counter-intuitive.Surely, the best time to overhaul a system is when campuses are empty and there are no active hearings.
  • Both parties will be represented by an adviser, who can be a lawyer, which will advantage rich students. This is a problem throughout society. In the current system, however, an accuser is backed by powerful, tax-funded institutions; an accused is denied representation.
  • The makeup of the hearing panels will vary according to an institution’s discretion. It varies now, and this discretion merely allows institutions to tailor the process to what may be unique needs. This is a strong point.
  • The regulation allows the panel to consider only testimony given during the hearing. The abilityto question witnesses is an integral part of due process.

The foregoing are a few of the objections raised in a single article—all of which depict the new regulation as complex and unworkable in order to set up a framework for obstructing its implementation. (Interestingly, arguments from justice or morality are disappearing.) This is a glimpse into the resistance within the huge network of organizations that constitute academia. Multiply the passive-aggressive scenario by tens of thousands of educational institutions. Then apply this resistance to almost every agency in government.

On paper, the Trump DOE has won the Title IX struggle, and its impressive victory should not be diminished. In practice, however, it is unclear whether the Sokolows of the world and of government will prevail. The DOE is the machine; Sokolows are the sand in its cogs.

Will the New Title IX Be Sabotaged?

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Campus Investigations Start By Believing Title IX Trauma Informed

University Administrators Need to Assure Impartial and Fair Investigations, or Face Legal Consequences

August 10, 2020

The past decade has witnessed a veritable explosion in accused-student Title IX litigation, with over 180 judicial decisions rendered to date that are unfavorable to the university. These lawsuits have exposed universities to costly settlements (and a judgment, in one case)[1], not to mention the attorneys’ fees that likely exceed $100,000 per case[2].

One of the most frequently litigated issues in these lawsuits is whether the investigation into alleged sexual misconduct was biased against the accused student. These guilt-presuming investigations are known by a variety of names, such as “trauma-informed,”[3] “Start By Believing,” or “victim-centered.”

An impartial investigation is in the interest of both the accused and accusing student. Hence the Department of Education’s Title IX regulations, scheduled to take effect on August 14, require, among other things, fair and impartial investigations:[4]

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.” [key words in italics]

SAVE hosts an Interactive Spreadsheet that provides a detailed analysis of 138 lawsuits against universities in which the accused student prevailed.[5] Among the 138 cases, the Spreadsheet lists 69 judicial decisions for which the university’s investigation was biased against the accused student – listed in reverse chronological order in the Appendix.

Almost all of the cases come from the trial court level. Of interest, roughly half — 39 — of these opinions involved private universities. There has been a substantial increase in judicial decisions involving biased investigations over the years, suggesting courts’ growing wariness of university procedures:

  • 2014: 3 cases
  • 2015: 2 cases
  • 2016: 5 cases
  • 2017: 14 cases
  • 2018: 15 cases
  • 2019: 15 cases
  • 2020 (six months): 15 cases

At the current pace, the number of lawsuits decided against universities is projected to reach 30 by the end of 2020.

Five of these cases illustrate the often egregious due process violations that the judges considered:

  • In Neal v. Colorado State Univ.-Pueblo, No. 16-CV-873-RM-CBS, 2017 WL 633045 (D. Colo. Feb. 16, 2017), the university opened an investigation into a male student after a classmate saw a hickey on that student’s girlfriend’s neck during class. The girlfriend swore to the university the sex was consensual, but the university decided to “investigate” anyway. The university gave the male student less than 24-hour notice to the hearing and refused to give him a copy of the investigative report.
  • In Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 238 Cal. Rptr. 3d 843 (2018), a female student accused a male student of sexual assault without providing any witnesses or evidence. Without any investigation, the university put the male student on interim suspension and then did not allow him access to the investigative report once one was created.
  • In Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019), the university withheld the investigative report, which included a made-up confession by the accused student.
  • In Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016), the university refused to interview the accused student’s witnesses, refused to inform him of what he was being investigated for, and refused to allow him to review the investigative report.
  • In Doe v. Syracuse Univ., 440 F. Supp. 3d 158, 159 (N.D.N.Y. 2020), the accused student alleged that the university trained its investigators that “perpetrators of sexual assault are supposedly rational actors who plan, practice, and become habitual rapists and sexual predators… [and that] inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma” (internal quotations and citations omitted).

Universities that do not currently conduct impartial and objective investigations should promptly revise their policies and training procedures, both in order to be in compliance with the new Title IX regulation and to avoid costly litigation. Most importantly, they should provide these protections because it is the right thing to do.

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

Appendix

Listing of Judicial Decisions Against Universities Involving Biased Investigations, 2014 to Mid-2020

No. Case Caption Citation/Case Number Date of Opinion Judge Court
1 John Doe v. Oberlin College No. 19-3342 29-Jun-20 Kethledge, Raymond U.S. Court of Appeals, Sixth Circuit
2 John Doe v. Purdue University, et al. 2020 WL 2839177 1-Jun-20 Springmann, Theresa U.S. District Court, Northern Dist. Indiana
3 John Doe v. University of the Sciences 2020 WL 2786840 29-May-20 Sanchez, Juan R. U.S. Court of Appeals, Third Circuit
4 Tariq Venegas v. Carleton College Case number: 19-cv-01878 1-May-20 Davis, Michael U.S. District Court, Minnesota
5 John Doe v. Colgate University 2020 WL 2079439 30-Apr-20 Scullin, Frederick Jr. U.S. District Court, Northern Dist. New York
6 John Doe v. Syracuse University 2020 WL 2079513 30-Apr-20 McAvoy, Thomas U.S. District Court, Northern Dist. New York
7 J. Lee v. University of New Mexico, et al. 2020 WL 1515381 30-Mar-20 Browning, James U.S. District Court, New Mexico
8 Hannah Rullo v. University of Pittsburgh 2020 WL 1472422 26-Mar-20 Kelly, Maureen U.S. District Court, Western Dist. Pennsylvania
9 Jacob Doe v. Virginia Polytechnic Institute and State University 2020 WL 1309461 19-Mar-20 Dillon, Elizabeth U.S. District Court, Western Dist. Virginia
10 John Doe v. Rollins College Case number: 6:18-cv-01069 9-Mar-20 Dalton, Roy U.S. District Court, Middle Dist. Florida
11 Kemari Averett v. Shirley Ann Hardy et al. 2020 WL 1033543 3-Mar-20 Hale, David U.S. District Court, Western Dist. Kentucky
12 Feibleman v. Trustees of Columbia University in City of New York 2020 WL 882429 24-Feb-20 Caproni, Valerie U.S. District Court, Southern Dist. New York
13 John Doe v. Syracuse University, et al. 2020 WL 871250 21-Feb-20 Sannes, Brenda K. U.S. District Court, Northern Dist. New York
14 John Doe v. University of Maine System, et al. 2020 WL 981702 20-Feb-20 Torresen, Nancy U.S. District Court, Maine
15 John Doe v. University of South Alabama, et al. 2020 WL 759895 14-Feb-20 Granade, Callie U.S. District Court, Southern Dist. Alabama
16 Unknown Party v. Arizona Board of Regents 2019 WL 7282027 27-Dec-19 Lanza, Dominic W. U.S. District Court, Arizona
17 John Doe v. Tracy Haas, et al. 427 F.Supp.3d 336 9-Dec-19 Hurley, Denis U.S. District Court, Eastern Dist. New York
18 John Harnois v. UMass-Dartmouth, et al. (pro se) 2019 WL 5551743 28-Oct-19 Stearns, Richard U.S. District Court, Massachusetts
19 John Doe v. Quinnipiac University, et al. 404 F.Supp.3d 643 10-Jul-19 Arterton, Janet Bond U.S. District Court, Connecticut
20 John Doe v. Purdue University, et al. 928 F.3d 652 28-Jun-19 Barrett, Amy Coney U.S. Court of Appeals, Seventh Circuit
21 John Doe v. California Institute of Technology Case Number: BS171416 20-Jun-19 Strobel, Mary Los Angeles (CA) Superior Court
22 John Doe v. Rhodes College Case Number: 2:19-cv-02336 14-Jun-19 Fowlkes, John Jr. U.S. District Court, Tennessee, Western Dist.
23 John Doe v. Northern Michigan University, et al. 2019 WL 2269721 28-May-19 Quist, Gordon U.S. District Court, Michigan, Western Dist.
24 John Doe v. Syracuse University 2019 WL 2021026 8-May-19 Hurd, David U.S. District Court, New York, Northern Dist.
25 John Doe v. Westmont College, et al. 34 Cal.App.5th 622 23-Apr-19 Tangeman, Martin California Appeals Court, Second Dist., Div. Six
26 Jack Montague v. Yale University Case Number:  3:16-cv-00885 29-Mar-19 Covello, Albert U.S. District Court, Connecticut
27 William Norris v. University of Colorado 362 F.Supp.3d 1001 21-Feb-19 Babcock, Lewis U.S. District Court, Colorado
28 David Jia v. University of Miami, et al. Case Number: 1:17-cv-20018 12-Feb-19 Gayles, Darrin U.S. District Court, Florida, Southern Dist.
29 Jacob Oliver v. University of Texas-Southwestern Medical School 2019 WL 536376 11-Feb-19 Boyle, Jane U.S. District Court, Texas, Northern Dist.
30 John Doe v. Rollins College 352 F.Supp.3d 1205 16-Jan-19 Dalton, Roy U.S. District Court, Middle District, Florida
31 John Doe v. University of South Florida St Petersburg Case Number: 17-0028AP-88B 21-Dec-18 Day, Jack Circuit Court, Sixth Judicial Circuit, Florida
32 Erik Powell v. Montana State University, et al. 2018 WL 6728061 21-Dec-18 Haddon, Sam U.S. District Court, Montana
33 John Doe v. University of Southern Mississippi, et al. Case Number: 2:18-cv-00153 26-Sep-18 Starrett, Keith U.S. District Court, Mississippi, Southern Dist.
34 John Doe v. Brown University 327 F.Supp.3d 397 27-Aug-18 McConnell, John U.S. District Court, Rhode Island
35 John Doe v. Ohio State University 323 F.Supp.3d 962 20-Aug-18 Smith, George U.S. District Court, Southern Dist., Ohio
36 John Doe v. Johnson & Wales University Case Number 1:18-cv-00106 24-May-18 McConnell, John U.S. District Court, Rhode Island
37 Jane Roe v. Javaune Adams-Gaston, et al. 2018 WL 5306768 17-Apr-18 Sargus, Edmund Jr. U.S. District Court, Southern Dist, Ohio
38 John Doe v. Regents of the University of California Case Number: BS172217 5-Apr-18 Chalfant, James Los Angeles (CA) Superior Court
39 John Doe v. University of Oregon, et al. 2018 WL 1474531 26-Mar-18 Aiken, Ann U.S. District Court, Oregon
40 John Doe v. Marymount University, et al. 297 F.Supp.3d 573 14-Mar-18 Ellis, T.S. III U.S. District Court, Eastern Dist., Virginia
41 Jason Schaumleffel v. Muskingum University, et al. 2018 WL 1173043 6-Mar-18 Smith, George U.S. District Court, Southern District, Ohio
42 Tyler Gischel v. University of Cincinnati, et al. 302 F.Supp.3d 961 5-Feb-18 Dlott, Susan U.S. District Court, Southern Dist., Ohio
43 John Doe v. Miami University 882 F.3d 579 2-Feb-18 Moore, Karen U.S. Court of Appeals, Sixth Circuit
44 John Doe v. Rider University 2018 WL 466225 17-Jan-18 Martinotti, Brian U.S. District Court, New Jersey
45 John Doe v. The Pennsylvania State University 2018 WL 317934 8-Jan-18 Brann, Matthew U.S. District Court, Middle Dist. Pennsylvania
46 John Doe v. Regents of the University of California Case Number: 17CV03053 22-Dec-17 Geck, Donna Santa Barbara County (CA) Superior Court
47 Kathak Saravanan v. Drexel University 2017 WL 5659821 24-Nov-17 Kearney, Mark U.S. District Court, Eastern Dist., Pennsylvania
48 Matthew Rolph v. Hobart and William Smith Colleges 271 F.Supp.3d 386 20-Sep-17 Wolford, Elizabeth U.S. District Court, Western Dist., New York
49 John Doe v. The Trustees of the University of Pennsylvania 270 F.Supp.3d 799 13-Sep-17 Padova, John U.S. District Court, Eastern Dist., Pennsylvania
50 John Doe v. Case Western Reserve University, et al. 2017 WL 3840418 1-Sep-17 Nugent, Donald U.S. District Court, Northern Dist., Ohio
51 Frank Gulyas v. Appalachian State, et al. 2017 WL 3710083 28-Aug-17 Voorhees, Richard U.S. District Court, West. District, North Carolina
52 John Nokes v. Miami University 2017 WL 3674910 25-Aug-17 Barrett, Michael U.S. District Court, Southern Dist., Ohio
53 Cameron Jackson v. Liberty University, et al. 2017 WL 3326972 3-Aug-17 Moon, Norman U.S. District Court, Western Dist. Virginia
54 Nicholas Mancini v. Rollins College 2017 WL 3088102 20-Jul-17 Dalton, Roy U.S. District Court, Middle Dist. Florda
55 In the Matter of John Doe v. Skidmore College 59 N.Y.S.3d 509 13-Jul-17 Garry, Elizabeth Appellate Division (NY) Third Department
56 Koh Tsuruta v. Augustana University 2017 WL 11318533 16-Jun-17 Schreier, Karen U.S. District Court, South Dakota
57 John Doe v. University of Notre Dame 2017 WL 1836939 8-May-17 Simon, Philip U.S. District Court, Northern Dist. Indiana
58 Grant Neal v. Colorado State University-Pueblo 2017 WL 633045 16-Feb-17 Schaffer, Craig U.S. District Court, Colorado
59 John Doe v. Western New England University 228 F.Supp.3d 154 11-Jan-17 Ponsor, Michael U.S. District Court, Massachusetts
60 John Doe v. Brown University 210 F.Supp.3d 310 28-Sep-16 Smith, William U.S. District Court, Rhode Island
61 John Doe v. Columbia University 831 F.3d 46 29-Jul-16 Laval, Pierre U.S. Court of Appeals, Second Circuit
62 John Doe v. Weill Cornell Medical College of Cornell University Case Number: 16-cv-3531 20-May-16 Pauley, William U.S. District Court, Southern Dist. New York
63 John Doe v. University of Southern California 246 Cal.App.4th 221 5-Apr-16 Collins, Aubrey CA Court of Appeals Second District, Division Four
64 John Doe v. Brown University 166 F.Supp.3d 177 22-Feb-16 Smith, William U.S. District Court, Rhode Island
65 John Doe v. Washington and Lee University 2015 WL 4647996 5-Aug-15 Moon, Norman U.S. District Court, Western Dist. Virginia
66 Drew Sterrett v. Heather Cowan, et al. 85 F.Supp.3d 916 4-Feb-15 Hood, Denise U.S. District Court, Eastern Dist. Michigan
67 Abrar Faiaz v. Colgate University 64 F.Supp.3d 336 24-Nov-14 Baxter, Andrew U.S. District Court, Northern Dist. New York
68 Benjamin King v. DePauw University 2014 WL 4197507 22-Aug-14 Lawrence, William U.S. District Court, Southern Dist. Indiana
69 Dezmine Wells v. Xavier University 7 F.Supp.3d 746 12-Mar-14 Spiegel, Arthur U.S. District Court, Southern Dist. Ohio

 

[1] https://www.insidehighered.com/news/2019/09/25/jury-sides-former-boston-college-student-accused-sexual-assault

[2] https://www.insidehighered.com/news/2019/10/03/students-look-federal-courts-challenge-title-ix-proceedings

[3] https://www.mindingthecampus.org/2019/09/20/fake-claims-of-rape-due-to-trauma-under-scrutiny/

[4] 34 CFR §106.45(b)(1)

[5] http://www.saveservices.org/sexual-assault/complaints-and-lawsuits/lawsuit-analysis/

Categories
Campus Investigations Sexual Assault Sexual Harassment Title IX Trauma Informed

PR: Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Four Reasons Why General Counsel Should Not Allow ‘Trauma-Informed’ Investigations for Title IX Cases

WASHINGTON / August 3, 2020 – With less than two weeks remaining before the effective date of the new Title IX regulation, SAVE is advising university counsel to review institutional polices to assure Title IX investigations do not rely on flawed “trauma-informed” methods. The use of such investigative approaches, sometimes referred to as “victim-centered” or “Start By Believing,” is inadvisable for four reasons:

  1. Regulatory Requirements: “Trauma-informed” means the investigator presumes that the complainant has experienced significant physical and psychological trauma, and interprets the complainant’s statements through that lens. This presumption is inconsistent with the text of the new Title IX regulation, which reads:

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.” [key words in italics] (1)

  1. Case Law: In a growing number of lawsuits, judges have issued rulings against universities because of their use of trauma-informed investigations. In a recent judicial decision against Syracuse University, the federal judge noted: “Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account . . . becomes evidence that her testimony is truthful” (2).

Brooklyn College professor KC Johnson has summarized a number of these cases (3): “In a lawsuit against Penn, the court cited the university’s trauma-informed training as a key reason why the complaint survived a motion to dismiss. During the Brown university bench trial, the decisive vote in the adjudication panel testified that she ignored exculpatory text messages because of the training she had received. Ole Miss’ trauma-informed training suggested that an accuser lying could be seen as a sign of the accused student’s guilt. And at Johnson & Wales, the university was so disinclined to make public the contents of its training that it refused a request by the accused student’s lawyer to see it before the hearing.”

  1. Lack of a Scientific Basis: Several peer-reviewed articles have discredited the scientific basis of trauma-informed investigations: Deborah Davis and Elizabeth Loftus: “Title IX and “Trauma-Focused” Investigations: The Good, the Bad, and the Ugly” (4); Sonja Brubacher and Martine Powell: “Best-Practice Interviewing Spans Many Contexts” (5); and Christian Meissner and Adrienne Lyles: “The summary of Training Investigators in Evidence-Based Approaches to Interviewing.” (6)

Journalist Emily Yaffe has described trauma-informed methods as “junk science.” (7) A compilation of other scientific critiques of trauma-informed is available online (8).

  1. Criticized by Leading Title IX Groups: Several organizations have issued reports and statements that are critical of trauma-informed investigations: ATIXA: “ Trauma-Informed Training and the Neurobiology of Trauma;” (9) FACE: “Trauma-Informed Theories Disguised as Evidence”(10)  SAVE: “Believe the  Victim: The Transformation of Justice;” (11) In addition, 158 professors and legal experts endorsed an Open Letter that is critical of the use of trauma-informed methods (12).

A UCLA working group appointed by former California governor Jerry Brown concluded, “The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent.” (13)

“Trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable.

Links:

  1. http://www.saveservices.org/2020/05/new-title-ix-regulatory-text-34-cfr-106/ Section 106.45(b)(1)
  2. https://www.thefire.org/syracuse-decision-an-important-step-forward-for-the-rights-of-private-university-students/
  3. https://www.mindingthecampus.org/2019/09/20/fake-claims-of-rape-due-to-trauma-under-scrutiny/
  4. http://www.saveservices.org/wp-content/uploads/TitleIXand%E2%80%9CTrauma-Focused%E2%80%9DInvestigations-TheGoodTheBadandtheUgly.pdf
  5. http://www.saveservices.org/wp-content/uploads/Best-PracticeInterviewingSpansManyContexts.pdf
  6. http://www.saveservices.org/wp-content/uploads/TitleIXInvestigations-TheImportanceofTrainingInvestigatorsinEvidence-BasedApproachestoInterviewing.pdf
  7. https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/
  8. http://www.prosecutorintegrity.org/sa/trauma-informed/
  9. https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2019/08/20123741/2019-ATIXA-Trauma-Position-Statement-Final-Version.pdf
  10. https://www.facecampusequality.org/s/Trauma-Informed-Theories-Disguised-as-Evidence-5-2.pdf
  11. http://www.saveservices.org/wp-content/uploads/SAVE-Believe-the-Victim.pdf
  12. http://www.saveservices.org/wp-content/uploads/VCI-Open-Letter-7.20.18.pdf
  13. http://www.ivc.edu/policies/titleix/Documents/Recommendations-from-Post-SB-169-Working-Group.pdf
Categories
Campus Civil Rights Department of Education Due Process Fair Campus Act Investigations Title IX

To cripple the abusive campus ‘sex bureaucracy,’ rein in the Title IX coordinators

If you want to entrench a government policy, make sure someone’s job depends on enforcing it. Even if that person isn’t a true believer in the program initially, she will be by the time her first paycheck arrives – and increasingly after that. That’s certainly the case with the education system’s Title IX coordinators, who are charged with overseeing schools’ compliance with federal sex discrimination statutes and questionable regulatory dictates.

What do Title IX coordinators do? Their core job duty, at least in theory, is to monitor their institution’s compliance with Title IX of the Education Amendments of 1972, which helps ensure that institutions receiving federal money do not tolerate sexual harassment that effectively bars the victim’s access to educational opportunity.

However, regulators’ zeal for stamping out sexual harassment has warped enforcement in ways that violate students’ free speech and due process rights. That’s all thanks to the Office of Civil Rights (OCR) within the Department of Education, which under the Obama administration issued widely criticized guidance documents elaborating on – and often unreasonably expanding the interpretation of – what counts as harassment. These documents imposed new duties on regulated schools based on a serious misreading of the law, and were instituted without following the appropriate procedures for public notice and comment.

Fortunately, the Trump administration has withdrawn some of the worst guidance documents and issued binding regulations that should discourage schools from curtailing students’ fundamental rights. However, there is at least one more problematic Obama-era Title IX guidance remaining on the books. It describes, at length, the procedures that federal funding recipients must follow in employing Title IX coordinators.

The term “coordinator” appears nowhere in Title IX itself. The requirement originates from a 1975 regulation (34 C.F.R. 106.8) that told funding recipients they had to designate a responsible employee to handle Title IX compliance. The requirement prompted almost no public comment at the time, probably because it was seen as the kind of modest measure that agencies routinely take to carry out a statute, such as telling recipients what color paper they must use in correspondence with an agency.

Yet onto this slender bureaucratic reed, the Obama administration engrafted a complex regulatory regime that essentially created privately administered “sex bureaucracies” within every funding recipient’s management.

Under pressure from this guidance, many colleges and universities expanded their Title IX offices. Harvard University has by my count 58 compliance staff members. Yale University has 22. Even tiny liberal arts colleges have significant Title IX offices: Middlebury has one main Title IX coordinator and six deputies; Amherst has one coordinator and six deputies; Haverford has one and eight deputies.

As these offices have grown, staff duties have expanded to include work going beyond ensuring compliance with the law and instead promoting the “spirit” of Title IX. One Swarthmore coordinator noted to the media that these “jobs are really not just about compliance anymore, but also about campus climate.”

What are these offices doing to promote Title IX’s spirit? As Jeannie Suk and Jacob Gersen discuss in a 2016 California Law Review article, “The Sex Bureaucracy,” many have gone beyond preventing unlawful sex discrimination and instead have expanded into lecturing students on what used to be seen as highly personal decisions about pursuing “healthy” or “safe” romantic and sexual relationships. Most of us learned foundational relationship skills such as “Always use ‘I’ statements” and “Don’t interrupt your partner” from partners, friends, clergy, or private therapists. Yet Title IX coordinators at Swarthmore and the University of Illinois have taken it upon themselves to propound such advice to students

“Is bureaucracy the antonym of desire?” Suk and Gersen ask. Certainly many of us would think so. Are bureaucrats hired to enforce a nondiscrimination statute really well-equipped to serve also as essentially relationship therapists? Much of their advice may be noncontroversial, but some may be less so, especially to students who hold traditional or religious values. Is it infantilizing to young adults to treat them as needing this kind of hectoring? Because of the pandemic-related economic downturn, many universities are in a particularly tight financial situation right now. Wouldn’t it make sense for regulators to give them some more flexibility in this area?

The Trump administration has made a priority of restoring the rule of law and stopping agency abuse of guidance documents: an executive order lays out procedures for transparency in issuance of guidance documents and restricts executive agencies’ unlawful issuance of guidance documents, and Associate Attorney General Rachel Brand issued a memo prohibiting Department of Justice components from issuing guidance documents that effectively bind the public.

The Trump administration should follow through on its commitment to pull back overreaching guidance and repeal this problematic document, in order to rein in the Title IX coordinators and their abusive sex bureaucracy.

Alison Somin is a legal fellow at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow her on Twitter @AlisonSomin.

Categories
Accountability Campus Civil Rights Department of Education Discrimination Due Process False Allegations Investigations Office for Civil Rights Press Release Sex Education Sexual Assault Sexual Harassment Title IX Training Victims Violence

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

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

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

WASHINGTON / July 28, 2020 – SAVE recently released a study that shows black male students face a type of “double jeopardy” by virtue of being male and black. (1) Analyses show although black male students are far outnumbered on college campuses, they are four times more likely than white students to file lawsuits alleging their rights were violated in Title IX proceedings (2), and at one university OCR investigated for racial discrimination, black male students were accused of 50% of the sexual violence reported to the university yet they comprised only 4.2% of the student population. (3)

In 2015, Harvard Law Professor Janet Halley raised an alarm to the U.S. Senate HELP committee that, “the rate of complaints and sanctions against male students of color is unreasonably high.” (4) She advised school administrators to, “not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.” (5)

Her powerful words were ignored. Over the past 5 years numerous black males have been caught up in campus Title IX proceedings. Their lawsuits often claim a lack of due process in the procedures.

Grant Neal, a black student athlete, was suspended by Colorado State University – Pueblo for a rape his white partner denied ever happened. (6) Two black males students accused of sexually assaulting a fellow student recently settled a lawsuit against University of Findlay for racial, gender and ethnic discrimination. (7) Nikki Yovino was sentenced to a year in prison for making false rape accusations against two black Sacred Heart University football players whose lives were ruined by her accusations. (8) These are just a few examples.

Wheaton College in suburban Chicago, a major stop along the Underground Railroad, recently dismissed Chaplain Tim Blackmon, its first nonwhite chaplain in its 155-year history. Blackmon claims Wheaton’s Title IX office failed to investigate a previous Title IX complaint against him in a “clear misuse of the Title IX investigative process,” and he was “completely blind-sided by this Title IX investigation.” Blackmon’s attorney believes the professor’s race heavily factored into his firing, and 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. (9)

The impact to black male students and faculty could be even greater than any data or media reports imply since only those who can afford a costly litigation file lawsuits and make the news. More data is needed, but anecdotally black males are disproportionately harmed in campus Title IX proceedings.

SAVE recently spoke with Republican and Democrat offices in the House and Senate regarding this issue. Virtually all staffers agreed members of Congress are concerned about harm to black students and supportive of ways to offer protections to all students, including those of color.

The new Title IX regulation offers necessary due process protections that black students need. By complying with the regulation, college administrators will protect the rights of all students and address the serious problem that black men are accused and punished at unreasonably high rates. At a time when activists on college campuses are clamoring that Black Lives Matter, college administrators should assure they are doing everything they can to help their black students.

Citations:

  1. http://www.saveservices.org/2020/07/why-are-some-members-of-congress-opposing-due-process-protections-for-black-male-students/
  2. https://www.titleixforall.com/wp-content/uploads/2020/07/Plaintiff-Demographics-by-Race-and-Sex-Title-IX-Lawsuits-2020-7-6.pdf
  3. https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/
  4. https://www.govinfo.gov/content/pkg/CHRG-114shrg95801/pdf/CHRG-114shrg95801.pdf
  5. https://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/
  6. https://www.thecollegefix.com/athlete-accused-rape-colorado-state-not-sex-partner-getting-paid-drop-lawsuit/
  7. https://pulse.findlay.edu/2019/around-campus/university-of-findlay-settles-sexual-assault-case/
  8. https://www.ctpost.com/news/article/Yovino-sentenced-to-1-year-in-false-rape-case-13177363.php
  9. http://www.saveservices.org/2020/07/black-immigrant-chaplain-claims-christian-college-used-bogus-title-ix-investigation-to-fire-hi

 

SAVE is leading the policy movement for fairness and due process on campus: http://www.saveservices.org/

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 Dating Violence Department of Education Domestic Violence Due Process Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

PR: New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

 New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

WASHINGTON / May 8, 2020 – SAVE is today releasing an analysis that enumerates the many ways by which the newly released Title IX regulation will benefit victims of campus sexual assault. Title IX is the federal law that bans sex discrimination in schools. The new regulation was released on Wednesday by the Department of Education (1).

Titled, “Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways,” the SAVE report identifies seven broad ways that the new federal regulation benefits victims and survivors:

  1. Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
  2. Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
  3. Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
  4. Defines the procedures to properly investigate and adjudicate such complaints.
  5. Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint if desired.
  6. Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
  7. Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints:

  • A student who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
  • One client was charged for sexual misconduct for touching a student on her elbow at a dance because he was trying to move her out of the way of another person.
  • One male student was charged for giving an honest compliment to a friend on her outfit.

The new SAVE document identifies 28 legally enforceable provisions in the new regulation that will benefit and support victims. Three examples of these provisions are: “Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution;” “Complainants are assured that respondents that are deemed an immediate threat to safety will be removed from campus;” and “Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf.”

SAVE has identified numerous cases in which campus disciplinary committees, sometimes derisively referred to as “kangaroo courts,” have shortchanged victims (2). The Independent Women’s Forum argues that “Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.” (3)

There is no evidence that the previous campus policies have succeeded in reducing campus sexual assault. A recent report from the American Association of Universities revealed an actual increase in campus sexual assaults from 2015 to 2019 (4).

The SAVE analysis is available online: http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

Links:

  1. https://www2.ed.gov/about/offices/list/ocr/newsroom.html
  2. http://www.saveservices.org/sexual-assault/victims-deserve-better/
  3. https://www.iwf.org/2020/05/06/does-due-process-silence-survivors/
  4. https://www.aau.edu/newsroom/press-releases/aau-releases-2019-survey-sexual-assault-and-misconduct