Category: Law & Justice

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

Keep Cross-Examination Out of College Sexual-Assault Cases

By Suzanne B. Goldberg
JANUARY 10, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Categories
Law & Justice Legal Sexual Harassment

Confusing “Workplace Harassment” Bill is Back

by Hans Bader, January 18, 2021

“Old bills never die, they just wait for votes,” notes the East Bay Times. A bad bill can die in one legislative session, only to come back with a vengeance in the next session, and get passed due to more intense lobbying, or the death or retirement of opposing lawmakers.

That may happen this year in Virginia. One example is the resurrection of a complicated and confusing workplace harassment bill I discussed last year. It died in March 2020 on a 23-to-17 vote, apparently after legislators became concerned about the strange way it defined “workplace harassment.” That bill, HB 1418, banned both “sexual harassment” and “workplace harassment” at workplaces with five or more workers. It also redefined what “harassment” means.

That bill has now come back from the dead. It has been re-introduced in the House of Delegates as HB 2155. And a more extreme version of the bill was introduced in the state senate as SB 1360.

These bills say “conduct may be workplace harassment regardless of whether” the “conduct occurred outside of the workplace.” And they omit the requirement that conduct be “unwelcome” before it can constitute harassment. That requirement is found in federal sexual harassment laws and court rulings.

Furthermore, the bills say plaintiffs can sue even if they “participated in” the conduct. That might allow workers to sue their employer over welcome participation in foolish activities with co-workers that they later regret, or even conduct they instigated that resulted in embarrassment or discomfort.

The Senate bill, SB 1360, contains a new provision that will make things even worse for employers. It says that “The construction of similar laws in federal courts or other jurisdictions shall not be used to limit the availability of remedies under this chapter.”

So if this bill is enacted, employers will not longer be able to get lawsuits over trivial things dismissed by citing federal court rulings dismissing lawsuits over similarly trivial conduct. Workers will be able to make a mountain out of a molehill.

And businesses trying to comply with the law won’t even be able to look at existing case law to shed light on whether they are in compliance, under this bill. That will create a great deal of confusion.

What sexual harassment means, legally, is fleshed out for employers by rulings in the federal courts, such as the Supreme Court.

Those rulings “drawing the line” for employers, provide valuable guidance for employers as to what is — and isn’t — sexual harassment.

But these Virginia “workplace harassment” bills don’t follow that guidance. And the Senate bill explicitly rejects the “construction of similar laws” against sexual harassment by the “federal courts.”

These bills do include various factors as to what it considers “workplace harassment.” But only some of them are consistent with what the federal courts say in the context of sexual harassment, and they omit other factors cited by the courts.

These “workplace harassment” bills apply to all employers with five or more workers.

Federal and state law already prohibit sexual harassment and discriminatory harassment against most workers. Right now, a federal law bans racial harassment at even the smallest employers (42 U.S.C. 1981). But other forms of harassment are not prohibited as comprehensively at small employers.

Employers with 15 or more workers are subject to federal laws categorically forbidding not just sexual harassment, but also harassment based on race, religion, disability, age, national origin, etc. But employers with fewer than 15 workers aren’t subject to most other federal employment laws, only state laws, and employers with fewer than five workers aren’t liable for sexual harassment under state law unless it involves a common-law wrong, such as quid-pro-quo sexual harassment; assault; battery; intentional infliction of emotional distress (severe forms of sexual harassment that intentionally or recklessly cause psychological harm); invasion of privacy; or other torts.  (See, e.g., Van Buren v. Grubb (2012); Middlekauf v. Allstate Ins. Co. (1994)).

Additional forms of harassment are illegal under state law at employers with 5 to 14 workers. They are subject to the Virginia Values Act, which bans discriminatory discharges of employees. Courts interpret “discriminatory discharge” to include sexual harassment and discriminatory harassment that creates an intolerable working environment and thus motivates the employee to quit — such as a steady stream of sexual insults. (See Pennsylvania State Police v. Suders (2004)).

It’s a mistake for these Virginia “harassment” bills to imply that it’s irrelevant whether “conduct occurred outside of the workplace,” in a case that’s supposedly about “workplace harassment.” Inappropriate behavior is much less likely to be sexual harassment when it occurs outside the workplace. As Judge Barbara Crabb ruled in one sexual harassment case, “Even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).

Juries should not be told the contrary, as these “workplace harassment” bills do.

In theory, conduct outside the workplace could be “workplace harassment” in rare cases — just as a person could theoretically be innocent of bank robbery, despite being seen with a gun in the getaway car near the bank right after the robbery.

But that’s not usually true. The location of conduct is obviously relevant to whether it amounts to “workplace harassment.” So these bills should not suggest to the contrary with their “regardless” language.

These bills also create problems by stating that “conduct may be workplace harassment regardless of whether … the conduct is also experienced by others outside the protected class involved.”  This will encourage juries to find liability in some cases where nothing discriminatory is going on, as I explained back in 2020, and may occasionally lead to liability for speech that is protected by the First Amendment, because the state of Virginia lacks a compelling interest in restricting it.

The government has a compelling state interest in eradicating discrimination, but not in banning offensive workplace speech that is not discriminatory — or is not severe and pervasive enough to create a hostile environment. For some employers, such as the producers of TV sitcoms, offensive speech is a necessary part of the workplace, even if some listeners view the speech that occurs in the creative process as “harassing” — as Justice Ming Chin of the California Supreme Court discussed in his concurring opinion in Lyle v. Warner Bros. Television Productions (2006)).

Harassment bans that are vague or confusing can violate the First Amendment by depriving speakers of fair notice of what is forbidden, as the Ninth Circuit Court of Appeals ruled in Cohen v. San Bernardino Valley College (1996).

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.”

Confusing “Workplace Harassment” Bill is Back | Bacon’s Rebellion

 

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

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

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

By Greta Anderson, January 22, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GREG PIPER – ASSOCIATE EDITOR, THE COLLEGE FIX

JANUARY 14, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the guidance.

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

Categories
Investigations Law & Justice Sexual Assault Trauma Informed

The Metastasizing Cancer of Trauma-Informed Justice

ifeminists.com

Sunday 10 January 2021
by Wendy McElroy

“Trauma-informed Justice” has percolated in academia and activism for decades. It is now knocking on the door of local police departments to demand changes that could upend the basics of how people relate to law enforcement. The approach converts the police into social workers or therapists and erases the due process upon which traditional Western justice hinges. It also increases the odds of wrongful convictions.

Trauma-informed justice—sometimes called “victim-centered” justice—involves an interview methodology in which the police prioritize empathy for an accuser who is automatically considered to be a victim. Rooted in trauma-informed feminist therapy of the 1960s, the methodology is especially favored for allegations of sexual abuse, such as domestic violence, where the accusers who come forward are overwhelmingly female. The methodology was refined by Russell Strand, U.S. Military Police School, who offered the Forensic Experiential Trauma Interview (FETI) as a way to question presumed victims without making them relive an assault.

According to trauma-informed trainers, the police should conduct investigations according to three broad principles.

The accuser is automatically assumed to be a victim even before any verification process occurs; the accused is automatically assumed to be guilty based on nothing more than an allegation. This dynamic reflects a core belief of the #Metoo movement: “Believe All Women.” The leading proponent of the trauma-informed approach is the End Violence Against Women International (EVAWI) group which argues that “believing” accusers “is the starting point for a fair and thorough investigation.” If EVAWI is taken literally, however, then further investigation seems to be unnecessary. An accusation is proof of guilt is grounds for conviction. Why investigate?
Contradictions, memory gaps, and inconsistencies in an accuser’s testimony are symptoms of deep trauma and should not be seen as disprobative. A much-quoted guide to trauma-informed justice states, “Trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory.” The true flaw in the process is said to be the police department’s approach which depends on what is called “peripheral information”–for example, a suspect’s description and the time or place of an alleged attack. Instead, the police should focus on eliciting non-linear information from the accuser by establishing trust and interpreting her memories.
Factors that cast doubt on the allegation, such as an accuser’s history of false allegations or drug use, are not to be considered. This creates an enormous problem if the case goes to trial, of course. The Arizona Governor’s Commission to Prevent Violence Against Women issued a letter to Arizona’s criminal justice agencies to explain, “In cases that proceed to trial, defense counsel likely could impugn investigators and claim that alternative versions of the crime were ignored and/or errors were made during the investigation as a result of confirmation bias created by the ‘belief’ element of the Start By Believing campaign.”

Trauma-informed advocates abandon the ethical code of conduct spelled out by the International Association of Chiefs of Police. Article 10, Presentation of Evidence states, “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice.” By this standard, everyone and their testimonies are to be treated equally.

Trauma-informed justice destroys the due process upon which Western criminal justice rests. The central principle of due process: an accused is innocent until proven guilty either by a standard of “clear and convincing evidence” or “beyond a reasonable doubt.” There must be proof before there is guilt and, as a matter of logic if not of justice, the accuser bears the burden of proof because she is the one making an affirmative statement. Start by Believing inverts this principle and logic, eliminating Western justice in the process.

Unfortunately, the trauma-informed approach is gaining momentum with training courses for law enforcement seeming to spring up everywhere. Most are held at universities where trauma-informed procedures have dominated Title IX investigations for the last decade; these investigations address allegations of sexual misconduct on campus and a “believe the women” ideology dominates. The spread of FETI is yet another instance of social-justice policies spilling from campuses out onto Main Street.

Other factors contribute to the spread. A revolution in how law enforcement is perceived has occurred, with “Defund the Police!” being one of the loudest aspects. A righteous indignation at police brutality and immunity is fueling a rebellion against the status quo of law enforcement. Trauma-informed justice also grows because it is still grassroots; activists go directly to law enforcement agencies. This makes it largely invisible in the media and to the public from which it encounters little resistance.

This needs to change. Trauma-informed justice must be opposed on three grounds: ethically, on the science, and on practicality.

The ethical case against trauma-informed justice has been made already: it introduces systemic bias into what should be an evidence-based, honest, and impartial process; it embeds unequal treatment under the law; it increases the likelihood of false convictions. It is unfair.

The increased likelihood of false convictions needs to be stressed because the trauma and tragedy of false convictions is often ignored or diminished. This will proliferate because trauma-informed politics encourages law enforcement to become de facto advocates for an accuser and presume the guilt of an accused.

A commonly stated goal of the trauma-informed approach is to secure a “successful prosecution”, which refers to securing a conviction but makes no comment on whether the defendant may be innocent. After all, Start by Believing declares all accuseds to be immediately and automatically guilty, which obviates the need to discuss their possible innocence. When the police pre-emptively decide that an accused is guilty, research shows what common sense suspects. The police look for supporting evidence and tend to dismiss counter information due to confirmation bias. Again, wrongful convictions become more likely, especially since EVAWI instructs investigators on how to assist prosecutors in countering “potential defense strategies.”

Another reason trauma-informed justice gains ground: law enforcement is asked to listen “to the science.” The science of traumatized people remembering events in a disjointed or inconsistent manner is presented as “settled.” This is not true. Unbiased studies contradict trauma-informed claims. Daniel Reisberg’s “Emotion’s (Varied) Impact on Memory for Sexual Misconduct” found, for example, “These data suggest that traumatic events are likely to be well remembered.” At bare minimum, the nature of traumatized memories is a matter for vigorous debate and untested ideology-based theories should not be fixed into policy.

The current standard police procedure is called the Reid method. It has three steps: factual analysis, interviewing, and interrogation. The factual analysis eliminates suspects and develops leads. Interviewing elicits investigative and behavioral information through non-accusatory dialogue with accusers, suspects, and witnesses; the interview has nine well-defined stages. Interrogation involves subjecting a confirmed suspect to accusations in which the investigator claims to know the person is guilty and angles for a confession. Police investigations may be imperfect but they have been tested and streamlined by time, with legal challenges providing protections to those being questioned.

In its “Report on the Use of the Forensic Experiential Trauma Interview (FETI) Technique” (2015), the United States Air Force Office of Special Investigations summarized its reluctance to replace an established protocol with trauma-informed techniques. “We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method that is supported by the latest scientific research (the Cognitive Interview), in favor of an interviewing method that is loosely-constructed, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.”

Social workers and therapists may need to Start By Believing the person they seek to heal. But the police are not mental health workers; they deal in cold, hard facts that have no gender or race. Investigators need to discern what is true or false about a situation rather than respond emotionally to it. In the process, some officers make mistakes and some act with malice; officers are human beings with all the flaws of shared humanity. The incompetence or malfeasance of individuals must be remedied but neither one is an indictment of the principles of Western justice. Turning accusations into convictions only makes prisoners of innocent people.

Content / Editorials / The Metastasizing Cancer of Trauma-Informed Justice – ifeminists.com

Categories
Law & Justice Legal Scholarships Title IX

Single-sex scholarships singled out

2 state colleges’ awards for women face U.S. bias inquiries

by EMILY WALKENHORST ARKANSAS DEMOCRAT-GAZETTE | December 6, 2020 at 3:43 a.m.

story.lead_photo.caption
FILE – The campus of the University of Central Arkansas in Conway is shown Oct. 27, 2008. (AP Photo/Danny Johnston)

Two Arkansas universities have joined the fast-growing ranks of institutions under federal investigation for offering “single-sex scholarships” — namely, scholarships for women.

The U.S. Department of Education this year has opened at least 120 Title IX investigations into colleges and universities for offering “single-sex scholarships.” Two of those investigations were at the University of Central Arkansas and the University of Arkansas at Little Rock.

The number of investigations of “single-sex scholarships” opened in 2020 and still active top the number of active investigations filed this year in every other Title IX category, including investigations into sexual violence and sexual harassment. Those categories combine for only 103 investigations opened this year and still active, according to federal data analyzed by the Arkansas Democrat-Gazette.

The increase in the scholarships investigations is largely because of complaints filed by a single person, said Brett Sokolow, president of the Association of Title IX Administrators. Mark Perry, a finance professor at the University of Michigan-Flint, has filed numerous complaints alleging unfairness to men. In blog posts and letters, Perry has likened his fight against single-sex academic programs, such as science summer camps for girls, as an effort to “end gender discrimination” and to end “gender apartheid.”

In many cases, the investigations have pressured colleges to either discontinue their women-only scholarship programs or make them available to men, as well. If successful in Arkansas, about a dozen privately funded scholarships would have to change.

O p p o n e n t s of t h o s e changes contend that the female-only scholarships and programs are critical to encouraging greater representation of women in certain academic fields dominated by men, such as science and engineering.

While 127 investigations into single-sex scholarships and 69 investigations into single-sex programs remain open, Sokolow acknowledged female-targeted scholarships and programs are ubiquitous. He said hundreds or thousands of schools could have such programs or scholarships.

“It’s pretty widespread,” he said.

Under Title IX, Sokolow said, academic institutional scholarships, whether provided by the institution or its foundation, must be distributed roughly 50-50 to women and men. That’s regardless of the student-body makeup.

In contrast, in athletics, the distribution must be proportional to the gender makeup of the student body. If 60% of students are women, roughly 60% of the school’s athletes should be women and roughly 60% of the dollar amount of athletic scholarships awarded should go to women.

Federal Equity in Athletics Disclosure Act data, examined by the newspaper, show that proportional distribution of athletic scholarships is not followed almost anywhere in Arkansas. Most student-athletes are male, and they receive most of the scholarship money. The scholarship money, however, is often distributed proportionally to the gender makeup of the student-athlete populations.

The idea behind those rules assumed that more men would play sports and that student bodies would be about 50-50 men and women, Sokolow said.

Only one of those assumptions proved to be true in the long run. Once outnumbered, more women now attend college than men, nationwide and in Arkansas.

Data provided by a handful of Arkansas universities show that most institutional academic scholarship money, not including foundation-provided scholarships, goes toward women. In most years, on average, however, female students received less in aid than the average male student.

The Arkansas Democrat-Gazette requested the information from all 10 of Arkansas’ traditional four-year public universities and many said they did not track it or did not respond. The newspaper obtained data outside of athletics from only five.

Colleges and universities commonly fail to track academic scholarship distribution data by race or gender, Sokolow said. But the investigations are causing many to start paying attention, he said.

The federal education department is investigating the University of Central Arkansas and the University of Arkansas at Little Rock for women-only academic scholarships financed by their foundations.

The Arkansas Democrat-Gazette obtained investigative records so far in each case. The complaints weren’t included and the complainants’ identities have been redacted.

The federal education department is investigating seven scholarships awarded to UCA students and at least three awarded to UALR students.

Many of the scholarships target academic programs in which women are less represented, such as science. Some are for business students.

Neither university offers scholarships for only men.

UALR also is under investigation for a single-sex program, based on a complaint from a person who was denied admission into a program.

The investigations have sought data on scholarships awarded, which the universities told the newspaper they have complied with.

The investigations remain open, though many colleges have attempted to resolve the complaints prior to any formal findings, by ending the scholarship programs or opening the scholarships up to more than women.

Sokolow often advises schools to do that. That’s easier when schools are the sponsors of the scholarships, he said. If the scholarships are provided through the foundation, the benefactor must agree to change the terms of the gift.

Others argue the schools shouldn’t have to do those things and the complaints should be tossed.

Earlier this year, the National Women’s Law Center, which has spoken out against the single-sex scholarship complaints, published a guide arguing that academic programs and scholarships targeting a single gender are allowed under Title IX. The guide notes the law states that schools can “take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex.”

“For example … a school can provide targeted programming to women in science, technology, engineering, and math (STEM) because women are underrepresented in these fields,” the law center contends. “Schools use affirmative action to promote diversity and to ensure that past discrimination and exclusion do not perpetuate ongoing exclusion.”

Categories
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

Categories
Department of Education Department of Justice Law & Justice Legal Office for Civil Rights

Judge Barrett a reformer for higher education

Opinion – Op-Ed

by Chandler Thornton, 10/25/2020

Conservatives greeted the nomination of Judge Amy Coney Barrett to the Supreme Court with enthusiasm for her originalist interpretation of the law, but all students who care about civil liberties, regardless of political persuasion, should welcome her nomination for the decidedly positive effect it will have in restoring sanity on America’s college campuses.

Over the last several decades, liberals on college campuses have enacted racial preferences in admissions, clamped down on the free speech rights of campus conservatives, imposed strict ideological tests on students, and eliminated any pretense of due process for students unfairly accused of sexual assault.

In particular, under President Obama, universities were provided guidance in 2011 and 2014 that led to the creation of “kangaroo courts,” where students facing sexual misconduct charges were punished without being afforded a hearing or the right to cross-examine their accuser. This led to a wave of cases that were invalidated by courts nationwide.

Last year, Judge Barrett authored a unanimous opinion for the U.S. Court of Appeals for the Seventh Circuit that restored the rights of a student, named “John Doe,” who alleged his university violated both the Due Process Clause of the Fourteenth Amendment and Title IX when investigating and adjudicating an allegation of sexual misconduct brought forward by another student, referred to as “Jane Doe.”

In her ruling in Doe v. Purdue University, Judge Barrett said Purdue’s procedures fell far short of fair, just and impartial treatment.

“John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. Withholding the evidence on which it relied in adjudicating his guilt was sufficient to render the process fundamentally unfair,” Barrett wrote.

Judge Barrett went on to cite some of the problems with Purdue’s grossly unfair rush to judgment.

“At John’s meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. And in a case that boiled down to a ‘he said/she said,’ it is particularly concerning that … the committee concluded that Jane was the more credible witness — in fact, that she was credible at all — without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement,” Barrett noted.

A shift to a more originalist-minded Supreme Court is coming at a time when the spotlight is on higher education, as race-based admissions and the stifling of campus free speech have become controversial flash points.

While Judge Barrett’s views on campus free speech and racial preferences are less documented, she drew clear lines between herself and the late Justice Antonin Scalia, who consistently voted against race-conscious admissions and was an outspoken defender of free speech.

At the Rose Garden ceremony where President Trump announced her nomination, Barrett said, “I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”

Understanding the importance of applying the law as written, guided by the original intent of the authors, and careful not to inject one’s own personal views or subjective policy opinions, was a hallmark of Scalia’s judicial philosophy.

That Judge Barrett will take the same approach is a relief for those of us looking forward to the day when common sense and fair play return to college campuses.

Chandler Thornton is the national chairman of the College Republican National Committee.

Categories
Law & Justice Legal Title IX

Federal judge rejects ACLU-backed lawsuit against Title IX rule

by Jeremy Bauer-Wolf, @jbeowulf

October 21, 2020

Dive Brief:

  • A federal judge Tuesday dismissed an American Civil Liberties Union-backed lawsuit that sought to void the U.S. Department of Education’s contentious new rule governing campus sexual violence.
  • The ACLU filed it on behalf of four activist groups in May, arguing certain provisions of the Title IX regulation, such as no longer looking into certain off-campus cases, were unlawful.
  • This is the latest defeat in a string of legal challenges against the rule, suggesting it will likely remain in effect for some time.

Dive Insight:

Education Secretary Betsy DeVos’ new rule directing how colleges should investigate and potentially punish campus sexual assault went into effect in August.

The changes represent a significant shift from the Obama administration’s position on Title IX, the federal law barring sex discrimination in education. Its guidance is credited with bolstering survivor protections.

DeVos’ rule narrows the definition of sexual harassment, and it reduces the number of cases colleges would need to investigate. It also creates a quasi-judicial system for reviewing allegations, in which both parties, through a surrogate, can cross-examine the other.

Survivor advocacy groups, as well as Democratic attorneys general, sued shortly after DeVos issued the final rule in May. None have succeeded in blocking the regulation so far.

U.S. District Court Judge Richard Bennett, who was appointed by President George W. Bush, threw out the ACLU-led case Tuesday, writing that the organizations lacked standing to sue. One of them, Know Your IX, can file an amended complaint, however.

The groups argued the rule violated the Administrative Procedure Act, the process by which government agencies issue regulation. And they said it undermined the intent of Title IX and created burdens for colleges to comply.

Bennett wrote that Know Your IX, specifically, didn’t prove the rule was reducing student reports of sexual violence. In a previous court case against the department’s Title IX policies, Bennett wrote, the plaintiff was able to show a decrease in student complaints.

Know Your IX also didn’t demonstrate the rule resulted in more work for the organization, as it alleged. The group said in court filings it received a “spike in training requests” for spring 2020 and believed it would see more, but Bennett wrote this was speculative.

Know Your IX tweeted Wednesday it was disappointed with the decision and would discuss next steps with its counsel.

https://www.educationdive.com/news/federal-judge-rejects-aclu-backed-lawsuit-against-title-ix-rule/587482/

Categories
Campus Civil Rights Due Process Law & Justice Legal Sexual Assault Title IX

Attacking due process on campus might be Joe Biden’s most glaring hypocrisy

The hypocrisy of Joe Biden’s 2020 platform is sometimes even more infuriating than its substance.

He’s chosen to run as an anti-police, empty-the-jails “social justice” warrior despite boasting for decades about how he wanted to “lock the SOBs up” and how he’s been integral to “every major crime bill since 1976.” He’s also running as a “Made in America” nationalist despite having led the charge to flood America with cheap Chinese goods and admit the People’s Republic into the World Trade Organization.

There are numerous other examples, but none is so galling as Biden promising to deny college students accused of sexual misconduct even the most basic due process rights. The kangaroo courts that he wants to mandate by law on college campuses would already have heard enough from his own sexual assault accuser, former staffer Tara Reade, to destroy his life. It’s a good thing for Joe Biden that he’s a 77-year-old politician — and therefore entitled to face his accusers and question their credibility — instead of a 19-year-old college student.

Earlier this year, Biden promised a “quick end” to a Title IX rule implemented by education secretary Betsy DeVos, claiming that it “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” In reality, it does no such thing. It does not provide college students accused of sexual harassment anywhere near the rights guaranteed to criminal defendants in the U.S. Constitution. It does not require alleged victims to come face-to-face with the people they accuse. It didn’t even reach the standard that Democrats demanded for Biden when he himself was accused of sexual assault. It merely requires schools to set consistent standards, inform the accused of the evidence against them, and allow the accused to cross-examine the witnesses — through a third party if necessary — who are providing evidence against them.

In fact, the only reason Secretary DeVos had to issue those regulations affirming the barest minimum standard of due process rights — rights that still fall well short of what would be required in any criminal proceeding — is that the Obama-Biden administration wrote a letter in 2011 threatening colleges and universities with a total withdrawal of federal funding unless they deprived the accused of virtually all rights in sexual assault and harassment complaints.

Contrary to the pablum the Biden campaign has served up to appease campus feminists, Secretary DeVos was hardly the only person to notice that the Obama-Biden threat letter was outrageous and likely unconstitutional. Almost as soon as it went into effect, young men who had their reputations and academic careers destroyed in proceedings that wouldn’t pass muster in traffic court started to sue.

In case after case, the federal courts tore so deeply into the policies the Obama-Biden administration demanded of colleges that they almost certainly could never be implemented legally in any public university, let alone serve as a prerequisite for funding by the Department of Education. In fact, one of the many decisions specifically citing the 2011 letter as possible evidence of unlawful discrimination was penned for a unanimous, all-woman panel by Judge Amy Coney Barrett, President Trump’s latest nominee to serve on the Supreme Court.

Joe Biden himself should be glad about that. While he’s no longer in college, he should be eager to see a woman on the Supreme Court who understands that, in America, everyone is entitled to know who is accusing him of what and to confront the evidence against him. Despite his intense need to pander to those who believe that a mere accusation should be enough to kick men out of colleges, take their scholarships, and make them unemployable, Joe Biden deserves the same due process as the rest of us.

Jenna Ellis (@JennaEllisEsq) is a constitutional law attorney and the senior legal adviser for the Trump 2020 campaign. She is the author of The Legal Basis for a Moral Constitution.

https://www.americanthinker.com/blog/2020/10/attacking_due_process_on_campus_might_be_joe_bidens_most_glaring_hypocrisy.html#.X3-FPHDiTIk.mailto