Category: Office for Civil Rights

Guilty Until Proven Innocent: The Devastating Impact of the Pre-2020 Title IX Regulations on College Students Accused of Title IX Violations

Post author By Edward Bartlett
Post date April 30, 2021

Guilty Until Proven Innocent: The Devastating Impact of the Pre-2020 Title IX Regulations on College Students Accused of Title IX Violations

Natanya DeWeese, Esq.

It is common knowledge that criminal defendants have constitutional rights, including the right to confront the witnesses against them. College students accused of violating Title IX have far fewer rights. Instead of being found guilty beyond a reasonable doubt, they are found responsible by a preponderance of the evidence. This legal standard is applied by college faculty, staff, and sometimes students, many of whom have no legal knowledge. To a college student accused of violating Title IX, the possibility of losing their college education and future career is just as serious as a defendant facing criminal charges. If the due process protections given to accused students in the 2020 regulations[1] are rescinded, accused students will lose the few rights they have in these proceedings. As an attorney who represents students accused of Title IX violations, I have seen firsthand the devastating impact the pre-2020 regulations had on accused students and the unfair outcomes that resulted when the accused could not tell their stories.

The current policy of permitting advisors to cross-examine allows the accused to explore inconsistencies and challenge credibility, and allows the hearing panel to determine the truth. Without cross-examination, the accuser dictates the narrative, permitting hearing panels to find students responsible for sexual misconduct based on very little evidence. This has devastating consequences for accused students, including suspension or expulsion. If an accuser admitted in writing that she consented and she was not afraid of the accused, but testified to the contrary at the hearing, the accused would have no opportunity to question her about these inconsistencies without cross-examination. Without a way for the accused to ask follow-up questions or challenge the accuser’s credibility, a hearing panel would not explore possible evidence of consent and could find the accused responsible based on the accuser’s testimony. Since suspension or expulsion are likely sanctions for students found responsible for sexual misconduct, there is too much at stake to not allow the truth to be explored.

Before the regulations permitted advisors to cross-examine, colleges enacted poor substitutes that did not allow students’ stories to be told. Approaches included having students submit questions to the hearing chair in advance to ask each other at the hearing, having students or their advisor email the hearing chair during the hearing with questions for a witness, or relying on interview transcripts in the investigation file and not having the witnesses testify at all. These approaches resulted in students reading prepared answers at the hearing with no opportunity to ask each other follow-up questions, allowing hearing chairs to change the wording of questions so they asked something entirely different from what the student intended, and hearing panels making determinations based on transcripts of interviews with witnesses who had no personal knowledge of the incident and barely knew the accused. None of these approaches allowed accused students to meaningfully question their accuser or witnesses.

It is also important to retain the policy that colleges provide an investigative report that fairly summarizes the evidence. Without a fair report, colleges are free to proceed based only on information from the accused. In one case[2], the investigative file was missing most of what the accused student said in his interview with the investigator. The college claimed the recording of his interview was corrupted and the investigator didn’t take notes. Rather than interviewing him again, the college proceeded to a hearing, with a file that contained several pages of evidence from the accuser and half a page from the accused. The student was found responsible and suspended.

Students who are suspended or expelled for Title IX violations face the sudden end of their educational and career aspirations. They are left in a world of fear, uncertainty, anxiety, and depression. Do they want to return to the college that suspended them? Can they transfer to another college with this mark on their record? Do they even want to try? And what will become of their future if they don’t? They are ostracized by their peers and fear interactions with others. For the falsely accused, it is as if they are wearing a scarlet letter “R” for “rapist,” but they did nothing wrong.

Despite college policies claiming that students are presumed innocent, this is not always the case in practice, especially before the 2020 regulations. Students feel they are presumed guilty and that nothing they say makes a difference, especially when they are not given a fair opportunity to tell their side of the story or challenge the evidence against them. The process is traumatic and dehumanizing for students, creating a PTSD that is triggered even by receiving an email from a college official. They don’t trust the colleges to get to the truth of what happened. Without allowing students to cross-examine their accusers or receive a fair investigation, how can colleges accurately determine who is responsible and who is not?

I do not diminish the trauma that victims of sexual assault go through. OCR should consider that accused students are traumatized too, especially under the prior regulations that gave them few rights and little opportunity to have their side of the story told. OCR should give students equal rights and opportunities to be heard, because without regulations that give both students due process, the colleges will not.

Links:

[1] “U.S. Department of Education Launches New Title IX Resources for Students, Institutions As New Rule Takes Effect,” August 14, 2020, https://www.ed.gov/news/press-releases/us-department-education-launches-new-title-ix-resources-students-institutions-historic-new-rule-takes-effect

[2] OCR found that the college discriminated against this student on the basis of sex and did not provide him with a fair process. https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/02182335-a.pdf

Office for Civil Rights Title IX

Biden OCR Acting Head Appointee Has Dubious Record

Post author By Edward Bartlett
Post date February 4, 2021

Biden OCR Acting Head Appointee Has Dubious Record
by James Baresel

February 1, 2021

For over fifteen years Columbia University law professor Suzanne Goldberg has intermittently hovered around the fringes of major news stories. In 2003 she nearly achieved 15 minutes of fame as co-council in the Lawrence v. Texas case that saw the Supreme Court contradict its own precedents and declare a law against sodomy unconstitutional. Just over 10 years later she was a special advisor to her university’s president on matters of sexual assault during one of the first high profile controversies over academic institutions’ responses to rape allegations. Now Joe Biden has appointed her assistant secretary of the Department of Education’s Office of Civil Rights.

Goldberg’s new position only sounds obscure. In fact it means she will be acting director of the OCR, responsible for planning and implementing the thousand and one details needed to translate a broad agenda into practical action—rendering its new holder’s record of considerable interest.

One key point in assessing Goldberg is the distinction between how she interprets the meaning of laws is interpreted and how handles allegations concerning the facts of particular cases. Where the former is at she undoubtedly favors “spinning” laws (including Constitutional law) to fit her own ideological presuppositions, as displayed in Lawrence v. Texas. The issue here is not what one thinks of the anti-sodomy law the Supreme Court struck down. It is Goldberg’s support for a judicial activism that disregarded the original intentions of legislators and spun the meaning of texts in order to bring about a change she desired through a court’s fiat rather than normal legislative processes. That she will give similar treatment to the meaning of the civil rights legislation she is now responsible for implementing seems probable.

What this does not tell us is what standards Goldberg would set for assessing allegations that a particular person violated (her interpretation of) civil rights legislation. This question does not concern what behaviors she believes violate such legislation or whether her beliefs correspond to legislators’ intentions. It concerns the standards of evidence that must be met for allegations to be officially “proven.” On this topic her record at Columbia University is too ambiguous to be reassuring.

Insight into Goldberg’s attitudes can be gained from the case of Emma Sulkowicz, who attained notoriety in 2014 as a sort of forerunner to the “Me Too” movement by melodramatically carrying a mattress around Columbia’s campus for her entire senior year. To the media she claimed to be protesting the university’s refusal to expel a student who had raped her. In reality a university investigation had concluded her allegation failed to meet even the standard of “more likely than not,” a decision reached despite excluding evidence in the accused student’s favor . The New York City police also determined Sulkowicz’s claims could not be substantiated, while the accused student voluntarily met with a member of the district attorney’s office and was assured there were no grounds for prosecution.

Sulkowicz then took her story public, launching a campaign to drive her alleged attacker from the university and revealing his name in violation of Columbia’s confidentiality policies. Short of expelling the accused student without evidence, the university surrender as abjectly as possible. Policies establishing that the break of confidentiality was grounds for disciplinary action were changed rather than enforced One of Sulkowicz’s professors accepted her mattress carrying as a “visual art project” that served as her major’s equivalent of a thesis with the full acquiescence of the administration. Not surprisingly, the accused student was subjected to ostracism and harassment.

Goldberg would not only have played a role in formulating the administration’s response to this situation as an adviser on sexual assault policies but was appointed to the office of Executive Vice President for University Life created (in part) to more thoroughly address such matters It is hard to imagine she would have been in such positions of trust while deeming the university’s low standards of proof unacceptable. When Sulkowicz’s supporters staged a “Day of Action” (carrying their own mattresses) Goldberg and the university president issued a statement saying that: “No person who comes to a university or college to learn and live should have to endure gender-based misconduct today, particularly the young women who most frequently sustain these violations.” After the accused student sued the university, its entrusted its defense to a lawyer with whom Goldberg co-taught classes rather than a member of the firm it usually employed.

Despite her indulgence of unofficial tarring of individuals cleared by formal investigations, Goldberg does seem to have the integrity to insist that such investigations be conducted in an unbiased manner aimed at objectively determining whether or not allegations are corroborated by the level of evidence stipulated by whatever regulations happen to be in force. On this point at least she has been willing to protect justice despite the ire of Columbia’s would-be lynch mobs She also revised Columbia policies not only to more effectively respond sexual assault allegations but to better assure due process for the accused in formal investigations. Subsequent to this, however, it introduced further policies revisions aimed at countering federal regulations instituted by the Trump administration in the interests of due process.

While Goldberg has the integrity to rise above show trials and (at least in official proceedings) guilty until proven innocent assumptions, her concern for justice seems too meager to be reassuring.

Source: https://ifeminists.org/e107_plugins/content/content.php?content.1492

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

The Biden Plan For Title IX Must Protect Due Process

Post author By Deanna Brown
Post date February 1, 2021

By: MICHAEL POLIAKOFF | January 25, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Keep Cross-Examination Out of College Sexual-Assault Cases

Post author By Deanna Brown
Post date February 1, 2021

By Suzanne B. Goldberg
JANUARY 10, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Post author By Deanna Brown
Post date January 16, 2021

GREG PIPER – ASSOCIATE EDITOR, THE COLLEGE FIX

JANUARY 14, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the guidance.

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

Civil Rights Office for Civil Rights Title IX

More victories from my efforts to advance civil rights and challenge systemic sexism in higher education

Post author By Deanna Brown
Post date November 14, 2020

By:  Mark J. Perry
     November 5, 2020

I was informed yesterday by the Department of Education’s Office for Civil Rights (OCR) that another of my (now) 244 complaints (probably the most ever filed by a single individual, at least for single-sex programs) alleging Title IX violations in higher education has been successfully resolved in my favor. That brings the total number of Title IX complaints to date that have been favorably resolved to 30 and there are close to 100 ongoing federal OCR investigations based on my complaints that I expect to also be successfully resolved in my favor (given the clarity of Title IX’s legal standard above and the clear and frequent violations of that law in higher education). Successful resolutions are illegal Title IX violations involving sex-specific female-only programs that are corrected with one of three outcomes: 1) the discriminatory program is discontinued, 2) the discriminatory female-only program is offset with an equivalent male-only program, or 3) the discriminatory female-only program is converted to a coeducational program open to all genders.

Here is information about the latest successful resolution of one of my Title IX complaints to the OCR:

In May 2019 I filed a Title IX complaint with the OCR against Duke University for operating three single-sex, female-only programs that illegally excluded and discriminated against male students. In August 2019, the OCR opened an investigation of Duke for violating federal civil rights laws (Title IX) for these three programs:

1. The Duke University Marine Lab has annually hosted the Girls Exploring Science & Technology (GEST) event, which as the program name indicates is a single-sex, female-only program that provided middle school girls only the opportunity to participate in hands-on science, technology, engineering and math (STEM) activities alongside female scientists working in those fields.

2. Duke’s FEMMES (Females Excelling More in Math, Engineering, and Science) as the program name indicates is a single-sex, female-only student-led education outreach organization whose mission is to engage young girls (only) in STEM (science, technology, engineering, math) fields through exciting hands-on activities and mentorship from female students and research faculty at universities. “In all components of FEMMES, female students and faculty members volunteer their time to instill enthusiasm about their careers in the developing minds of young women.” This education outreach program is discriminatory because it illegally excluded and discriminated against male students.

3. Girls STEM Day @ Duke as the program name indicates is an annual single-sex, girl only program that has taken place annually at Duke University in May for more than 100 middle and high school girls. This discriminatory program operated exclusively for girls and illegally excluded and discriminated against boys on the basis of sex against male students.

To resolve its Title IX violation, Duke University expressed an interest in voluntarily resolving the complaint before the completion of OCR’s investigation and signed a Voluntary Resolution Agreement (VRA) to address in allegations. In that VRA Duke agreed to decide by January 2021 whether it will: a) discontinue its discriminatory, single-sex, female-only programs or b) convert the female-only programs to coeducational programs open to all students and participants regardless of sex. If Duke chooses option (b) the university will also change the names of the programs “to eliminate any suggestion that they are for a single-sex and ensure that all communications related to the programs effectively communicate that the programs coeducational.” There is also an option for Duke to maintain the discriminatory names GEST and FEMMES but only if the university “can develop and implement strategies to effectively communicate to the applicable University community and the public that the programs notwithstanding their names are open to all students regardless of sex.”

From my experience, it’s easier for most universities to discontinue their illegal, discriminatory single-sex, female-only programs than to redesign them as coeducational programs open to all students including males. The programs and their supporters, staff, participants, and donors are too psychologically vested in female-only programs and it creates too much cognitive dissonance and consternation trying to get “buy-in” from key constituents to open those programs to males. The commitment to provide illegal special preferences to females usually outweighs any concern to legally provide equal educational opportunities to males, and it’s therefore easier to just discontinue and drop the discriminatory program than to include males.

And the graphic above from the current FEMMES (Females Excelling More in Math, Engineering and Science) website (see any patterns?) makes it seem like Duke hasn’t yet accepted the fact that it was just found by the OCR to be in violation of Title IX’s prohibition of sex discrimination. And it hasn’t yet accepted that the female-only FEMMES program is violating its own anti-discrimination policy (edited slightly for humor):

Duke University is committed to ensuring an environment free of prohibited discrimination, and our policies encourage an inclusive community that respects and values all of its members [except for males until we got caught].

In accordance with federal laws, Duke University does not discriminate on the basis of age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex [except for males until we got caught], sexual orientation, or veteran status. We expand these protections further by also prohibiting discrimination based on gender identity, sexual orientation, and gender expression [except for males until we got caught].

It’s always both amusing and disappointing that so many universities so pretentiously, pompously and yet disingenuously profess their commitment to non-discrimination while at the same time discriminating on the basis of sex so openly and brazenly??

Here are some other updates on my civil rights advocacy:

1. In October, Western Washington University entered into a Voluntary Resolution Agreement with the OCR to resolve its Title IX violation for hosting and offering the “Girls Engineering Math and Science (GEMS) Academy,” which as the name indicates was a discriminatory, single-sex, female-only program that illegally excluded boys. The university was given until November 20 to decide if it would discontinue its discriminatory girl-only program or convert it to a coeducational program open to all genders include males. Given the fact that the program website no longer works, I’ll assume the university shut the illegal program down rather than legally open it to boys. Too much cognitive dissonance, too much vested interest in girls, and not enough buy-in to include boys, see above.

2. Also in October, Oregon State University resolved the federal investigation of its Title IX violation for offering five discriminatory illegal female-only faculty awards by opening the five awards “to anyone in the OSU community who has worked to advance gender equity.” Prediction: The awards will continue to be given to female faculty, but at least male faculty will now be technically eligible to receive these awards. We’ll call this a hollow Title IX victory.

3. In the last month, the OCR has opened 11 federal investigations of civil rights (Title VI and IX) violations based on my complaints for the following universities in the last month:

a. The University of Connecticut for its Outstanding Senior Women Academic Achievement Award, the Women Of Color Collective (WOCC) Event (Title VI), and the Men’s Project, a single-sex, male-only program “to train students who identify as male to positively influence their peers by challenging social norms that promote gender-based violence; understanding their connection to survivors of gender-based violence; and role modeling effective bystander interventions.” This is my first Title IX complaint for a male-only program. However, the program is offered through the university’s Women Center, so I suspect it’s probably a program for men to address their toxicity and privilege.

b. Yale University’s School of Management for a series of illegal, discriminatory single-sex, female-only programs including Programs for Women, Women’s Leadership Program Live Online, the Women’s Leadership Program, the Women’s Leadership Program Online, and Women on Boards.

c. The University of Alabama Birmingham for six discriminatory, single-sex, female-only staff, student, and faculty awards.

d. University of Connecticut for its BOLD Women’s Leadership Network.

e. Loyola Marymount University for hosting and partnering with the girl-only Project Scientist program.

f. University of Wisconsin Madison for its discriminatory Center for the Advancement of Women in Science and Medicine.

g. University of Minnesota for its Women’s Leadership Institute and the Women In Leadership program in the Carlson School of Management.

h. SUNY College of Environmental Science & Forestry for its Girls’ Summit program.

i. California Institute of Technology for hosting the discriminatory Project Scientist organization.

j. Lakeland Community College (Ohio) for its Woman of Achievement Awards.

k. State University of New York Albany for a variety of 14 different single-sex, female-only scholarships, awards, centers, academies, initiatives, and programs. This is a good example of a university that has tolerated illegal sex discrimination and allowed it to spread unchecked throughout the entire university. I’m sure I haven’t yet uncovered many other civil rights violations at SUNY-Albany as an outsider reviewing its websites.

Bottom Line: A university that tolerates and promotes so much illegal sex discrimination must either not even be aware that they are violating federal civil rights laws or be aware but not care because they think it’s acceptable to discriminate against certain groups. And SUNY Albany’s not alone, they’re fairly typical of the hundreds of American universities that practice systemic sexism with impunity. So either they’re ignorant of federal laws prohibiting discrimination or they think they’re above the law. In either case, it’s a sad indictment of “higher” education.

More Victories from My Efforts to Advance Civil Rights and Challenge Systemic Sexism in Higher Education

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

Sex discrimination in Oklahoma higher education

Post author By saveadmin
Post date October 29, 2020

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.

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

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

Judge Barrett a reformer for higher education

Post author By saveadmin
Post date October 27, 2020

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.

Campus Office for Civil Rights Sex Stereotyping Title IX Title IX Equity Project Victims

PR: Hinting at Sex Bias, Federal Judge Slaps Down RPI for Circumventing New Title IX Regulation

Post author By saveadmin
Post date October 25, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Hinting at Sex Bias, Federal Judge Slaps Down RPI for Circumventing New Title IX Regulation

WASHINGTON / October 26, 2020 – A federal judge has ruled against Rensselaer Polytechnic Institute for utilizing its old Title IX policy for a case that was adjudicated after the August 14 effective date of the new regulation. The decision is widely seen as a rebuke to RPI, both because it reversed a decision by college administrators, and because of the strong language used in the opinion (1).

In this case, John Doe and Jane Roe had a sexual encounter while under the strong influence of alcohol. Echoing the familiar he-said, she-said pattern, Doe alleged that Roe pressured him to put his hands around her neck and engage in unprotected sex. In contrast, Roe claimed that his hands were placed on her neck in a non-sexual way, and that the sexual activity was non-consensual.

Doe and Roe filed Title IX complaints against each other with school officials.

During the campus adjudication, RPI applied different standards against the two parties, deciding that “Doe’s complaint against Roe was insufficiently substantiated because he failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe.” As a result, the college made a determination in favor of Roe.

Doe then filed a lawsuit in the New York Northern District Court. In his October 16 ruling, Judge David Hurd suggested that sex bias was at work: “[T]he female’s complaint proceeded without issue, the male’s was struck down in part on grounds not contemplated anywhere in the policy’s definition of consent. That inequitable treatment provides not inconsiderable evidence that gender was a motivating factor in RPI’s treatment of Doe.”

Relying on unusually strong language, the court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” Doe had presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded.

Sex discrimination against male students appears to be widespread on college campuses. Recently, George Washington University ordered 23 student groups to amend their constitutions to comply with the school’s nondiscrimination policy. These groups include Girls Who Code, Queens Movement, and female-only service groups (2).

Other forms of sex discrimination include female-only services (3), female-specific scholarships (4), one-sided gender studies courses (5), and sex stereotyping (6).

This appears to be the first judicial ruling regarding the applicability of the new Title IX regulation. Judge Hurd’s decision can be viewed online (7).

Links:

Campus Department of Education Discrimination Due Process Executive Order Office for Civil Rights Race Sex Stereotyping Sexual Assault Title IX Title IX Equity Project

PR: Noting the ‘Seriousness of Penalties,’ College Administrators Suspend Trainings that Promote Sex Stereotypes

Post author By saveadmin
Post date October 19, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Noting the ‘Seriousness of Penalties,’ College Administrators Suspend Trainings that Promote Sex Stereotypes

WASHINGTON / October 19, 2020 – In response to new federal requirements, college administrators have begun to stop school trainings and curricular offerings that promote stereotypes based on sex or race. For example, the University of Iowa recently announced a decision to suspend all such trainings, workshops, and programs. Noting “the seriousness of penalties for non-compliance with the order,” the pause applies to all harassment and discrimination trainings offered by the institution (1). Other institutions of higher education reportedly have made similar decisions (2).

Two federal policies are driving the re-evaluation. First, the new Department of Education sexual harassment regulation states that Title IX training activities “must not rely on sex stereotypes.” (3) Second, Executive Order 13950 directs federal agencies to suspend funding for any institution that promotes concepts that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive.” (4)

SAVE is urging administrators at colleges and universities across the country to take immediate steps to end trainings and other activities that may promote sex stereotypes. Title IX and other training programs are known to be promoting sex stereotypes in at least seven ways:

Domestic violence: Each year there are 4.2 million male victims of physical domestic violence, and 3.5 female victims, according to the Centers for Disease Control (5). University training programs need to clearly and accurately state these numbers.
Sexual assault: Nearly identical numbers of men and women are victims of sexual assault, according to the federal National Intimate Partner and Violence Survey. Each year, 1.267 million men report they were “made to sexually penetrate,” compared to 1.270 million women who report they were raped (6). But many university training programs utilize data from surveys relying on methodologies that undercount the number of male victims who were made to penetrate.
Annual vs. lifetime incidence: Due to well-known problems with recall and memory retrieval, lifetime incidence numbers significantly undercount domestic violence and sexual harassment incidents, especially less serious incidents that occurred in previous years. University trainings should use annual, “in the past 12 months” numbers, not “lifetime” numbers.
Sex-specific pronouns: In referring to domestic violence or sexual assault perpetrators and victims, many training materials misleadingly refer to the perpetrator as “he” and the victim as “she.”
Examples: Training materials often provide hypothetical examples to illustrate key concepts. Such examples need to highlight approximately equal number of male and female victims.
Imagery: Some university websites feature domestic violence incidents that portray a threatening male standing over a fearful, often cowering female. Such one-sided portrayals are misleading.
Negative stereotyping of men as a group: Some universities offer campus-wide programs that seek to redefine, reform, and/or stigmatize masculinity. University-sponsored courses that promote theories of “toxic masculinity,” “rape culture,” and “patriarchal privilege” are likely to be in violation of the federal ban on sex stereotyping. Such stereotypes serve to undermine principles of fairness and equity for male students.

For example, the University of Texas offers a program titled “MasculinUT.” The program’s website states that concerns about sexual assault and interpersonal violence justify the “need to engage men in discussions about masculinity as one tool to prevent violence.” (7) The university does not offer a similar program directed at females, thereby creating an unlawful stereotype of male perpetrators and female victims.

Some universities teach courses that feature the American Psychological Association report, “Guidelines for Psychological Practice with Boys and Men.” (8) The accompanying APA article made the stereotyping claim that “traditional masculinity — marked by stoicism, competitiveness, dominance and aggression — is, on the whole, harmful.”

To date, the SAVE Title IX Equity Project has submitted 20 complaints to the federal Office for Civil Rights for non-compliance with regulatory requirements for Title IX training materials (10).

Links:

https://diversity.uiowa.edu/regarding-executive-order-13950?utm
https://blog.aspb.org/policy-update-uneven-implementation-of-executive-order-on-race-and-sex-stereotyping/
https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf 45(b)(1)(iii)
https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/
https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf Tables 9 and 11.
Lara Stemple and Ilan Meyer. The Sexual Victimization of Men in America: New Data Challenge Old Assumptions. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4062022/
https://deanofstudents.utexas.edu/masculinut.php
https://www.apa.org/about/policy/boys-men-practice-guidelines.pdf
https://www.apa.org/monitor/2019/01/ce-corner
http://www.saveservices.org/equity/