Category: Sexual Harassment

Categories
Sexual Assault Sexual Harassment Title IX

Biden’s Enigmatic Executive Order on Sex Discrimination

Biden’s Enigmatic Executive Order on Sex Discrimination

Buddy Ullman

April 29, 2021

President Biden’s March 8th Executive Order (EO) 14021 mandated “that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity” and directed Secretary of Education Cardona to review all Department of Education policies that might be inconsistent with the EO.  Cardona’s review needs to be finalized by June 16th.  It’s a tight deadline.

By issuing EO 14021, President Biden is unmistakably targeting the new Title IX (TIX) compliance Rule that former Secretary of Education Betsy Devos effected in August, 2020.  In fact, the Rule is specifically cited three times in the 1½ – page EO.  Of note, the EO and the DeVos Rule are not the same: they overlap and clash.

In response to the EO, the Department of Education’s Office for Civil Rights, headed by Acting Assistant Secretary Suzanne Goldberg, issued a letter to stakeholders and press release announcing the launch of a comprehensive review of the Rule that she will head.  Ms. Goldberg’s assessment is more expansive than that authorized by the EO and includes a public hearing, the issuance of a question-and-answer document, and most concerning, a notice of anticipated rulemaking that seems precipitous.

President Biden does not offer any explanation for why he believes that the DeVos regulations might be discriminatory and therefore inconsistent with EO 14021.  Neither does Ms. Goldberg.  Whereas there are components of the 2,033 page DeVos rule to which people disagree, there is absolutely nothing in the Rule that is even remotely discriminatory.  In fact, the Rule vigorously supports compliance with TIX, which in itself is an anti-discrimination federal civil rights law.

President Biden did promise during the course of his campaign to put a “quick end” to the Rule, and Goldberg’s review may be a sly mechanism to accomplish this objective.  Biden’s line of reasoning for his campaign promise appears to be his groundless belief that the DeVos Rule seeks to “shame and silence survivors,” and “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” I find his ratiocination to be nonsense, and I’m a progressive Democrat and ardent Biden fan.

Ms. Goldberg’s views on the DeVos Rule are largely unknown at this point, but she does report, ultimately, to the President.  The Assistant Secretary in a 2019 op-ed did express her opposition to a pivotal component of the Rule, cross-examination (XXN) in a live-hearing format, but her dissatisfaction was based mainly on hypothetical disparities between advisors to the parties in a dispute, an argument also applicable to any criminal case in a court of law where XXN is a constitutional mandate.  Ms. Goldberg’s argument against the Rule is not compelling and is offset by the enormous benefits that cross-examination brings to the truth-finding objective of a TIX investigation.  Furthermore, eliminating XXN for students in TIX proceedings that would be constitutionally mandated for nonstudents in a court of law, I would argue, is the epitome of discrimination, and would be a violation of President Biden’s EO.

There are some noteworthy differences between EO 14021 and the one-sentence TIX, which states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  The significance and impact of these discrepancies is obscure but disquieting.

EO 14021, for example, applies specifically to students, while TIX relates to all persons, most pertinently faculty and staff, who can be respondents in TIX proceedings, as I learned the hard way.  EO 14021 also impacts students in all schools, whereas TIX is restricted to those schools and educational institutions that receive federal financial assistance.  Because EOs are limited to the operations of the federal government, the jurisdiction of EO 14021 over educational institutions that are not overseen by TIX is unclear.  Equivalently ambiguous is whether the current TIX regulations apply to violations of Biden’s EO that are not covered by TIX.  EO 14021 stipulates no enforcement mechanism.

EO 14021 is also much expansive in its purview than TIX.  TIX focuses on educational programs and activities, while Biden’s EO encompasses the educational environment.  What exactly constitutes an educational environment is highly debatable.  In contrast, the Rule’s directives pertaining to settings under a school’s TIX purview are transparent and were obliged by the Davis verdict that was affirmed  by five liberal justices, including progressive icon Ruth Bader Ginsburg.  The justices established that “the harassment must take place in a context subject to the school district’s control.” but the educational environment that is the focus of the EO includes places outside a school’s control, e.g., a home.

The punctilious and judicious Rule is predicated upon: (1) the United States Constitution, principally the 1st, 5th, and 14th amendments; (2) judicial precedent, in particular the 1999 Supreme Court decision Davis versus Monroe County Board of Education that was affirmed by five liberal justices; and (3) congressional intent, i.e., the text of TIX.  The Rule insists upon reasonable, fair, and equitable procedures by which gender discrimination, sexual harassment, and sexual assault disputes are investigated under TIX.  Unlike the vague, discretionary, and now rescinded Obama-era guidance that was actually spearheaded by then Vice President Biden in 2011, the DeVos rule is constitutionally and legally sound and does not discriminate against respondents.

The vast majority of Americans support the due process and free speech provisions that are encompassed in the DeVos Rule.  Joe Biden promised in his inaugural address to “be a president for all Americans.”  Let’s hope he will.

Categories
Sexual Assault Sexual Harassment Special Report Title IX

PR: Appellate Court Decisions Reveal Widespread Due Process Deficiencies

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Appellate Court Decisions Reveal Widespread Due Process Deficiencies. Oberlin, Purdue, and USC the Most Egregious Cases.

WASHINGTON / April 22, 2021 – A new report summarizes 23 appellate court decisions of college procedures for handling allegations of sexual misconduct. Titled, “Appellate Court Decisions for Allegations of Campus Due Process Violations, 2013-2020,” the SAVE report summarizes the 23 court rulings, which document major deficiencies in the procedures that colleges and universities utilize to investigate and adjudicate allegations of sexual misconduct.

One or more of the appellate rulings apply to all colleges, public and private, in the following 31 states: AR, CA, CT, DE, IA, ID, IL, IN, KY, LA, MA, ME, MO, NJ, NY, OH, OR, MA, ME, MN, MT, ND, NE, NV, PA, RI, SD, TN, VT, WA, and WI. The report notes that 67% of all U.S. colleges are located in these states.

The most egregious cases involved the following three institutions:

  1. Oberlin College, which advertised on its website that it had a 100% conviction rate.
  2. Purdue University, where two hearing board members admitted to not reading the investigative report, but still voted to expel the accused student.
  3. University of Southern California, which relied on a “judge, jury, and executioner” single-investigator model.

From a legal perspective, the most important ruling was the Doe v. Purdue University case, which made future allegations of sex discrimination easier to prove. The Seventh Circuit Court ruled that a student only needed to “raise a plausible inference that the university discriminated against [him] ‘on the basis of sex.’” (1)

Overall, the decisions enumerate a broad range of protections that are due on college campuses regarding adequate notice of the allegations, impartial and accurate investigations, disclosure of evidence to the accused, cross-examination, fair hearings, lack of conflict of interest among college officials, proper use of testimony, and institutional compliance with its own policies.

Seven public opinion polls have been conducted in recent years, all documenting that a strong majority of Americans support due process on campus (2). Recent editorials and statements by liberal and conservative voices reveal continued support for campus fairness (3).

SAVE urges college officials to become fully acquainted with the appellate decisions, and continue to fully implement the new Title IX regulation, which upholds rights and protections for both complainants and the accused. The new SAVE report is available online (4).

Links:

  1. http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D06-28/C:17-3565:J:Barrett:aut:T:fnOp:N:2362429:S:0
  2. https://www.saveservices.org/sexual-assault/opinion-polls/
  3. https://www.saveservices.org/title-ix-regulation/
  4. https://www.saveservices.org/wp-content/uploads/2021/04/Appellate-Court-Cases-2013-2020.pdf

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

Categories
Campus Sexual Assault Sexual Harassment Title IX

Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses

Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses

April 21, 2021

“Victim-centered” philosophy has become widely utilized by campus adjudication panels across the country (1).  “Victim-centered” ideology presumes that the accuser is always telling the truth, and any inconsistencies in his or her testimony are taken as actual proof of the putative traumatization. Of course, this assumption precludes the possibility that her memory was affected by excessive alcohol intake, or that she may be recounting a well-embellished falsehood.

Recently the New York Supreme Court ruled on a case in which a female student from the State University of New York – Purchase claimed she was a victim of PTSD, which she said precluded her from giving consent to sexual intercourse.

According to a recent commentary, the New York State affirmative consent policy states students “must obtain consent at every escalation of sexual activity through words or actions. In practice, schools have punished students after accusers claim they didn’t give constant consent, like a continuous question-and-answer session. As I have previously reported, there simply is no way for an accused student to prove they obtained affirmative consent under current, draconian policies.” (2)

According to Doe, he and a female Purchase College — State University of New York student were watching a movie one evening with some other students at Doe’s dorm suite. When Doe decided to attend another party, the woman asked, and was permitted to stay at the dorm suite with the other students.

When Doe later returned to the dormitory, the female asked another student to leave so the two students could be alone. She then asked Doe if she could stay the night and requested a pair of Doe’s pajamas to change into. The woman then got into Doe’s bed. The two students began to kiss, and the woman assisted Doe in removing her pajama bottoms. After some initial sexual activity, Complainant took the initiative to request Doe to use a condom. The encounter then progressed to sexual intercourse.

The following day, Doe attempted to contact the female student in a friendly, everyday manner. Three days later she reported the encounter as a sexual assault. A Title IX investigation concluded with Doe being charged with a violation of the Student Code of Conduct, which prohibits any sexual act without consent or sexual intercourse with someone considered to be physically helpless.

The school Hearing Board determined that statements by the woman (now the “Complainant”) about giving consent were conflicting and unreliable. The Board stated it was “concerned that some of [Complainant’s] statements after her initial report were tainted by reading the supports of other witnesses and parties.” This assessment was largely due to the woman’s accounts changing from what she said to the University Police and Title IX Investigator, compared to how she testified during the hearing.

For example, the Complainant told the Police that she was not fearful of Doe.  But the woman later told the Hearing Board that she did not ask Doe to stop because she was fearful of him. Additionally, the student changed the reasons for her inability to give consent: First it was fear, then incapacitation due to alcohol, finally it was an anxiety attack.

In contrast, Doe testified that the Complainant was of sound mind throughout the interaction and believed there was clear-cut consent, based on her actions. Nevertheless, the Hearing Board concluded that while the kissing and removal of the Complainant’s pants were consented to, the remainder of the sexual activity was not. The SUNY Purchase’s Appeals Board found that Doe violated the Student Code of Conduct and suspended him for one year.

Doe then filed an Article 78 appeal to ask the New York Supreme Court to review SUNY Purchase’s determination that he violated code C.8 of the SUNY Purchase Student Code of Conduct.

The Court noted that its review of the case was limited to whether SUNY Purchase’s decision was based on substantial evidence. Substantial evidence is relevant proof that would lead a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

The Court cited Education Law § 6441(1), which states that “consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.” The Court noted that the college Hearing Board had reported Complainant’s testimony lacked credibility. The Court concluded that the SUNY Purchase’s decision to punish Doe “was not supported by substantial evidence,” and that the alleged absence of consent amounted to mere conjecture and speculation.

On March 31, 2021 the Court issued a ruling that annulled SUNY Purchase’s decision and dismissed the charge that Doe violated the Student Code of Conduct. Additionally, the Court vacated all penalties against Doe and ordered the expungement of any references to such findings from his academic record (3).

Kimberly Lau (4), counsel to the accused student, explained, “John Doe was found responsible of sexual assault despite the Hearing Board’s determination that the complainant’s testimony on consent was ‘unreliable and conflicting.’ SUNY Purchase’s disciplinary decision was illogical and in violation of NY State law and its own policies on consent. I’m pleased the Court unanimously agreed.”

OCR Review

Ironically, just three weeks before the Court issued its ruling, President Joe Biden issued an Executive Order calling for the Department of Education to consider “suspending, revising, or rescinding” the newly implemented Title IX regulation (5).

The Biden Order is relevant to the New York case because the new regulation requires that complainants and respondents be treated “equitably,” which means “impartial investigations and adjudications,” including “an objective evaluation of all relevant evidence,” according to the language of the regulation (6).

Clearly, the SUNY Purchase adjudication process was not impartial, objective, or equitable.

So as the Office for Civil Rights moves forward with its review of the Title IX regulation, the Office needs to pay attention to the findings of the New York Supreme Court. Specifically, the OCR needs to consider revising the existing regulation to discourage colleges’ reliance on biased “victim-centered” methods, and improve the specificity of its requirements for impartial, objective, and equitable adjudications.

Links:

  1. https://www.saveservices.org/sexual-assault/investigations/ 
  2. https://www.dailywire.com/news/university-said-accuser-was-conflicting-and-unreliable-but-still-found-accused-student-guilty-a-court-just-overturned-the-schools-finding?fbclid=IwAR004lJwvFtCT3jEN82daxDcgb7pMS5NSSm9c920BXbrCGxQkCRzmjQihdA 
  3. http://www.nycourts.gov/courts/AD2/Handdowns/2021/Decisions/D66100.pdf 
  4. https://www.collegedisciplinelaw.com/Kimberly-Lau 
  5. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/
  6. Section 106.45 (b)(1).  https://www.saveservices.org/2020/05/new-title-ix-regulatory-text-34-cfr-106/
Categories
Campus Sexual Assault Sexual Harassment Title IX

Tulane U: COVID-19 sidelines sexual misconduct procedures

Tulane U: COVID-19 sidelines sexual misconduct procedures

Lily Mae Lazarus and Sala Thanassi
April 15, 2021

It is no secret that Tulane Univerity has a systemic sexual violence problem. According to the 2017 Climate Survey, 77% of all student survey respondents report being victims of sexual assault and 71.4% report being subjected to unwanted sexual contact. 75.6% of these perpetrators were Tulane students and 51.8% of the reported instances occurred on campus. This year is no different as “The pandemic did not end sexual violence—or sexual harassment or sexual discrimination—on this campus,” Meredith Smith, Tulane University sexual misconduct response/Title IX coordinator, said. According to the breakdown of student disclosures in the fall of 2020, disclosure rates of sexual misconduct exceeded those from fall 2019 until students were sent home due to COVID-19. These numbers paint a harrowing picture of the failure of Tulane’s conduct system and the inescapable reality of sexual misconduct for students, unchanged since the Climate Survey’s publication and, if anything, overshadowed by COVID-19.

To best understand the priority imbalance between COVID-19 conduct violations and those related to Title IX, an overview of the external legal factors is required. In May of 2020, Title IX statutes around the U.S. changed dramatically. The new regulations redefined what constitutes sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Further, the new Title IX issues important changes to the trial process: an individual accused of sexual misconduct has the right to cross-exam their accuser, and universities have the option to use a more difficult standard of proof by requiring “clear and convincing” evidence.

The majority of sexual misconduct reports at Tulane are outside of these newly defined parameters, but the university pledged to treat all sexual misconduct that was previously a violation of Title IX as eligible for an administrative procedure. Tulane also does not opt to use a stricter standard of proof in formal administrative hearings. Instead, to be found in violation of the Tulane University Code of Student Conduct, there must be a preponderance of evidence, or, in layman’s terms, that it is more likely than not a violation occurred.

Regardless of changing statutes, the sexual misconduct epidemic at Tulane has not disappeared and was rather pushed into the shadows and out of the mind of the administration. Since Tulanians’ return to campus this fall, the university has promptly investigated and prosecuted violators of the university’s COVID-19 guidelines. From expulsions, suspensions, fines and administrative threats, Tulane spares no expense regarding the consequences of public health rule flouting.

When it comes to COVID-19 related offenses, a picture of maskless students standing in a group, sent to the conduct office anonymously without context, is taken at face value and serves as sufficient grounds for swift administrative action. In instances of Title IX violations, all parties are subject to an inefficient and traumatizing investigation and trial that, if anything, dissuades future victims from coming forward and allows perpetrators to remain unscathed. The discrepancy in investigation times illustrate a startling reality in which formal conduct investigations, despite being labeled as equally pressing, are not treated with equal importance.

The lack of administrative ferocity surrounding instances of sexual misconduct prior to COVID-19 demonstrates a pattern. According to the Climate Survey, 84% of both male and female respondents claimed Tulane did or would actively support them with formal or informal resources if they reported sexual misconduct. Despite this figure, in 2017, there were only 205 reported cases at Tulane of sexual misconduct and, of that group, only 16 had disciplinary proceedings, and only 8 resulted in disciplinary action. This trend still exists, and few reports of sexual misconduct proceed to formal conduct hearings. Although the Office of University Sexual Misconduct Response and Title IX Administration supports victims to the best of their abilities, the formal conduct system fails them at their weakest hour. This is unacceptable.

This conundrum is not unique to Tulane. In September 2020, New York University’s newspaper published an article regarding the deprioritization of Title IX during COVID-19. Similar to circumstances at Tulane, NYU suspended multiple students for violating COVID-19 guidelines and sent numerous reminders to students surrounding the administration’s willingness to act immediately and aggressively against those flouting the rules. Yet, according to NYU student Nicole Chiarella, NYU’s administration addresses Title IX with a startling nonchalance amidst a pandemic. “NYU’s continual passivity showcases how without a financial incentive — such as the one provided by reopening campus amid a pandemic — sexual assault will remain as a mere administrative afterthought, subsequently harming survivors … Its persistent disregard for survivors of sexual assault fosters a toxic campus environment that safeguards the accused and ostracizes the very students NYU claims to protect,” Chiarella said.

At Tulane, students’ email inboxes are constantly filled with reminders from the Office of the Vice President of Student Affairs to be respectful citizens and practice proper COVID-19 protocols, yet the administration remains silent on issues of rape, harassment and nonconsensual sexual behavior. How can a university aggressively combat systemic sexual misconduct when victims and non-victims alike lack procedural transparency, a constant influx of information and a feeling of safety when disclosing their experiences? The simple answer is they cannot.

The American Civil Liberties Union estimates that 95% of campus rapes in the U.S. go unreported. One of the primary reasons students do not come forward is a fear that their institution will not believe them. Although, in theory, Tulane mitigates this difficulty by not adopting scrutinous standards of proof, submitting sexual violence victims to lengthy investigation processes, not applied with the same intensity to COVID-19 related offenses, places an undue burden on procedures claiming to be of equal conditions.

The Code of Student Conduct, in addressing Title IX procedures, promises the university will “promptly and equitably respond to all reports of discrimination and harassment in order to eliminate prohibited conduct, prevent its recurrence, and address its effects on an individual or the community.” Similarly, the Office of Student Conduct, tasked with investigating Title IX and all other conduct violations, claims that the university attempts to conclude their investigations within 60 days of an issuance of the notice of investigation, barring special circumstances. With Tulane hyperfocused on tracking down those guilty of crimes against the COVID-19 guidelines, perpetrators of sexual violence have the luxury of time and administrative apathy, as the conduct system pushes all non-pandemic related issues to the side.

Delays in Title IX cases during the COVID-19 pandemic have numerous adverse effects on survivors. Accused perpetrators are able to use a public health crisis to further restrict victims’ rights access to an education or in some cases to see justice served. Prior to the May 2020 Title IX changes, Title IX complaints were required to be handled in a timely manner. Although Tulane promises this, including provisions for special circumstances allows the conduct system to revise the timeline of Title IX cases at their own discretion.

It is illogical to assume the administration was unaware of the possible COVID-19 delays in sexual misconduct procedures. Tulane had ample time to create an action plan, but the administration chose not to prioritize this pervasive issue. Various organizations published information directed at academic institutions upon the onset of the pandemic, including that “for students who are survivors of sexual assault, navigating resources and reporting may be more challenging due to COVID-19,” The Rape, Abuse & Incest National Network, the nation’s largest anti-sexual violence organization, said. Equal Rights Advocates, in an article counseling schools on how to navigate Title IX hearings during the pandemic, urged universities to move forward with investigations and hearing without unreasonable delays because students have a fundamental right to “a prompt and equitable resolution of sexual misconduct claims.” Further, the article explains that delays in these procedures force survivors to remain traumatized and uncertain, preventing them from finding closure and potentially leading to institutional betrayal.

Rates of sexual misconduct at Tulane are substantially higher than the national average and the pervasiveness of Title IX violations on campus severely diminish students’ feeling of safety and community. That being said, if the Office of Student Conduct promises to “foster a safe and healthy community in which academic success can occur” how can they push Title IX issues to the side which effectively deny victims a right to their education? The administration has shown it can act swiftly to punish violators of COVID-19 guidelines, build temporary outdoor classrooms, and enforce mask and testing mandates. Yet, this enthusiasm disappears when it comes down to tackling the pre-existing and well-documented sexual misconduct problem on campus.

To address the administrative difficulties of addressing sexual misconduct, “Let’s start with admitting that the system is hard, even if it works perfectly, and so to dedicate ourselves to unpack each step and possibility in the investigation and adjudication and put as much care and support as we can into a system that is processing so much pain,” Smith said. Tulane cannot continue to treat cases of sexual misconduct with apprehensiveness and lanquidity; it must address these procedures with the same intensity and order as it does with violations of COVID-19 guidelines.

Source: https://tulanehullabaloo.com/56435/views/opinion-covid-19-sidelines-sexual-misconduct-procedures/

Categories
Campus Department of Education Sexual Assault Sexual Harassment Title IX

PR: Liberal Voices Call for Campus Due Process, Reject Return to Former DCL Policy

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Liberal Voices Call for Campus Due Process, Reject Return to Former DCL Policy

WASHINGTON / March 30, 2021 – On March 8, President Joe Biden issued an Executive Order instructing the Department of Education to consider back-tracking on campus due process protections (1). In response, numerous editorials have been published supportive of campus due process, rejecting the excesses of the 2011 Dear Colleague Letter (DCL) policy on sexual violence (2).

On March 22, the Editorial Board of the Los Angeles Times criticized the Obama-era policy, which “ignored common traditions of due process for the accused,” causing colleges to swing too hard in favoring accusers. The essay urged the Biden policy review to be “thoughtful rather than reactive.” (3)

Three days later, former Democratic presidential candidate Michael Bloomberg penned an editorial highlighting how the 2011 policy had shortchanged defendants by failing to “uphold due process.” Bloomberg also noted that “Alleged victims said that schools failed to investigate their claims professionally.” (4)

Then on March 28, the Washington Post Editorial Board weighed in. The editorial highlighted the due process deficiencies with the Dear Colleague Letter, which gave rise to numerous “successful court challenges.” The Editorial Board affirmed the usefulness of the Biden review, and warned, “there are some things worth saving in these educational rules – and so the administration should tread carefully.” (5)

In addition, the New York Times published a news article on March 8 on the Biden policy review and invited readers to express their opinions (6). A review of all reader comments posted on March 9 reveals the vast majority of NY Times’ readers, many of whom identify as liberal, are supportive of campus due process. This comment by “R.P.” in Bridgewater, NJ received the largest number of Recommends:

“This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?” (7) [bolding in original]

Seven separate public opinion polls have been conducted in recent years, all documenting that a strong majority of Americans support due process on campus (8). The most recent poll, commissioned by SAVE, found strong bipartisan support for campus fairness (9):

  • “Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves.” Agree: Democrats: 80%, Republicans: 88%
  • “Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Agree: Democrats: 66%, Republicans: 75%
  • “Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Agree: Democrats: 71%, Republicans: 86%

SAVE urges college officials to continue to fully implement the new Title IX regulation, which upholds rights and protections for both complainants and the accused.

Links:

  1. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/
  2. https://www.saveservices.org/title-ix-regulation/
  3. https://news.yahoo.com/editorial-betsy-devoss-campus-sex-100019802.html
  4. https://www.bloomberg.com/opinion/articles/2021-03-25/title-ix-biden-should-bring-better-justice-to-u-s-universities
  5. https://www.washingtonpost.com/opinions/biden-has-a-chance-to-restore-balance-to-the-rules-on-campus-sexual-assault/2021/03/28/cc4416fc-8767-11eb-8a8b-5cf82c3dffe4_story.html
  6. https://www.nytimes.com/2021/03/08/us/politics/joe-biden-title-ix.html
  7. https://www.saveservices.org/2021/03/most-ny-times-readers-support-campus-due-process/
  8. https://www.saveservices.org/sexual-assault/opinion-polls/
  9. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-with-political-party-identification-11.18.2020.xlsx
Categories
Campus Sexual Assault Sexual Harassment Title IX

PR: Liberals Call for Campus Due Process, Urge Biden Administration to ‘Tread Carefully’

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Liberals Call for Campus Due Process, Urge Biden Administration to ‘Tread Carefully’

WASHINGTON / March 29, 2021 – On March 8, President Joe Biden issued an Executive Order instructing the Department of Education to consider back-tracking on campus due process protections (1). In response, 21 editorials have been published to date supportive of campus due process, and urging caution by the Biden Administration (2).

The individuals and organizations writing these articles represent all points on the political spectrum. Many of the commentaries came from liberal sources.

On March 22, the Editorial Board of the Los Angeles Times criticized the Obama-era campus policy, which “ignored common traditions of due process for the accused,” causing colleges to swing too hard in favoring accusers. The essay urged the Biden policy review to be “thoughtful rather than reactive.” (3)

On March 25, former Democratic presidential candidate Michael Bloomberg penned an editorial highlighting how the Obama policy had shortchanged complainants by failing to “uphold due process.” Bloomberg also called for greater involvement of the police and the courts in campus sex cases (4).

Three days later the Washington Post Editorial Board weighed in. The editorial highlighted the due process deficiencies with the Obama-era policy, which gave rise to numerous “successful court challenges.” The Editorial Board affirmed the usefulness of the Biden review, and warned, “there are some things worth saving in these educational rules – and so the administration should tread carefully.” (5)

In addition, the New York Times published a news article on March 8 on the Biden policy review and invited readers to express their opinions (6). A review of all reader comments posted on March 9 reveals the vast majority of NY Times’ readers, many of whom identify as liberal, are supportive of campus due process. This comment by “R.P.” in Bridgewater, NJ received the largest number of Recommends:

“This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?” (7) [bolding in original]

Seven separate public opinion polls have been conducted in recent years, all documenting that a strong majority of Americans support due process on campus (8). The most recent poll, commissioned by SAVE, found strong bipartisan support for campus fairness (9):

  • “Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves.” Agree: Democrats: 80%, Republicans: 88%
  • “Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Agree: Democrats: 66%, Republicans: 75%
  • “Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Agree: Democrats: 71%, Republicans: 86%

SAVE urges the Biden Administration to take a measured and thoughtful review of the historic Title IX regulation, which upholds rights and protections for both complainants and the accused.

Links:

  1. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/
  2. https://www.saveservices.org/title-ix-regulation/
  3. https://news.yahoo.com/editorial-betsy-devoss-campus-sex-100019802.html
  4. https://www.bloomberg.com/opinion/articles/2021-03-25/title-ix-biden-should-bring-better-justice-to-u-s-universities
  5. https://www.washingtonpost.com/opinions/biden-has-a-chance-to-restore-balance-to-the-rules-on-campus-sexual-assault/2021/03/28/cc4416fc-8767-11eb-8a8b-5cf82c3dffe4_story.html
  6. https://www.nytimes.com/2021/03/08/us/politics/joe-biden-title-ix.html
  7. https://www.saveservices.org/2021/03/most-ny-times-readers-support-campus-due-process/
  8. https://www.saveservices.org/sexual-assault/opinion-polls/
  9. https://www.saveservices.org/wp-content/uploads/2020/11/YouGov-Poll-with-political-party-identification-11.18.2020.xlsx
Categories
Campus Sexual Assault Sexual Harassment Title IX

Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems

Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems

By Jame Baresel

March 16, 2021

This past summer the State of New York and the City School District of New York filed a case for an injunction against revisions to Title IX regulations the Trump administration had implemented to assure due process for college students accused of sexual assault. The case was heard by United States District Judge John G. Koeltl, a member of the Democratic Party nominated to his office by former President Bill Clinton. Not only did the judge deny the injunction but he commended the revisions as having “the potential to benefit both complainants and respondents.”

Now, after less than two months in office, President Joe Biden has issued an executive order requiring a review of such reforms, as he had promised during his campaign and as over 100 Democratic members of Congress insisted in a letter to Secretary of Education Miguel Cardona. Either ignorantly or cynically, these politicians claim that the reforms are intended to “intimidate victims” or destroy protections for them.

In fact the Trump regulations do not even give students accused of sexual assault “the accused the same protections as a defendant in a criminal case.” They merely require “that colleges need to give notice of allegations; that accusers and accused have the right to an advocate and to appeal findings; that they have a right to a hearing on a reasonable timeline; and that witnesses can be cross-examined.”

And they were not much of an innovation, more a return to common sense accepted by both parties for decades until Obama era Democrats turned to an ideologically driven stacking of the procedural deck against the accused. Since then the ways in which Obama era rules violate due process and put false accused men at unjustified risk have received considerable attention. Other important factors have, however, frequently been overlooked.

First:

Title IX regulations largely provide guidance for legal and forensic amateurs. Only one out of 57 college and university staff members responsible for implementing Title IX has professional courtroom experience. Most come from academic fields whose members are likely to conduct investigations through ideological preconceptions or from administration. [https://www.nas.org/reports/dear-colleague] The latter can be inclined merely to switch their method of protecting their institutions’ reputations, from covering up sexual assault to demonstrating that they “believe women.” Such individuals need instructions on objectively obtaining and weighing evidence on both sides of a case.

Second:

Obama era regulations have been applied in a prejudiced manner. Hundreds of students judged guilty of sexual assault by university authorities have challenged the findings in court on due process grounds. Approximately half the court rulings have been in their favor, despite the burden of proof being on them (as plaintiffs). Given the difficulties of mounting legal challenges to universities’ judgments against accused students, the number of innocent students who have suffered due process violations is inevitably higher than the number who have mounted such challenges. Such challenges bog down the time and money of universities as well as that of students.

One study has actually found that most Title IX sexual assault cases result from “misunderstandings and mixed signals regarding consent and usually involve alcohol, regret, and fuzzy memories” but that “students are encouraged, in situations like this, to file discrimination complaints with the Title IX office, where ideological staff stand ready to railroad accused students.” Even if (for the sake of argument) objective investigators could be fair to accused students while acting under procedures dating from the Obama era, the ease with which they can be used as a cloak for prejudiced investigations would necessitate the Trump reforms.

Third:

Even when Obama era regulations were in force and highly publicized, the vast majority of college sexual assaults went unreported, while many students filed complaints with the federal Office of Civil Rights alleging university officials responded to accusations of sexual assault with indifference or negligence. This suggests that the Obama regulations did little to force apathetic university officials to action. And it is clear that the Obama regulations didn’t remove the reasons many women fail to report sexual assault, predictably given it is a matter of human attitudes rather than structures. Either the problem is with the attitudes of university officials (those who can’t be bothered to do their jobs) or those of victims (preferring passivity over fighting through the unpleasantness of reporting and proving a case).

The truth is that the Obama regulations do not just undermine due process, they undermine due process without accomplishing much in return. Even when they have not been inimical to justice they have been at best a superficial response to a complex problem, at worst a meaningless gesture. While they might have greatly increased the extent to which female students felt the government is trying to do something to keep them safe, their impact on actual safety was minimal.

Source: http://www.ifeminists.com/e107_plugins/content/content.php?content.1502 

Categories
Campus Due Process Sexual Assault Sexual Harassment Title IX

Vast Majority of NY Times Readers Support Campus Due Process

Vast Majority of NY Times Readers Support Campus Due Process

SAVE

March 16, 2021

On March 8, the New York Times ran an article titled, “Biden Will Revisit Trump Rules on Campus Sexual Assault.” The balanced and thoughtful article presented both sides of the campus due process debate, allowing readers to draw their own conclusions.

A review of the readers’ comments reveals a strong majority are in favor of the current Title IX regulation, based on:

  1. Number of comments generally supportive of the new regulation
  2. Number of persons who “Recommend” each comment

Following are the 14 comments with at least 50 Recommends. A strong majority express support of the new regulation, and a couple favor referral of such cases to local police. Not a single one calls for a return to the Obama-era standard.

Below the 14 strongly supported comments are all 127 reader comments that were posted on March 9.

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

FOURTEEN COMMENTS WITH AT LEAST 50 RECOMMENDS

1. R.P. commented March 9

R.P.

Bridgewater, NJ

This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?

122 Recommend

2. Dave commented March 9

Dave

New Jersey

One of the few things that the Trump administration did that I fully agreed with. Leave it alone.

93 Recommend

3. Tim commented March 9

Tim

NJ

The DeVos rules “require colleges to hold a live hearing with cross-examination by a third party … and also require that cases be investigated under a presumption of innocence and that parties have equal access to evidence and appeals processes.”

No person in his or her right mind could be against this. If you are accused of an infraction or crime it is the very least you would expect. In their rush to appease this activist wing of their party, many of whose assertions on the issue of campus sexual assault have been greatly exaggerated or proven outright false, the Democrats are throwing one of the foundations of democracy under the bus. When the Republican Party, which by all accounts should be taking its last breath right now, crushes the Democrats in 2022, this will be one reason why.

89 Recommend

4. RCP commented March 9

RCP

Texas

So, it’s back to the Obama inquisition on these matters? Denial of due-process to accused? What is the problem that Democrats have with fundamental fairness from college campuses to debating legislative issues? Is it that they have no winning position, no persuasive argument?

82 Recommend

5. Joyce Hill commented March 9

Joyce Hill

Maryland

Why isn’t this just a police matter? Why do victims have to be subjected to a different set of rules depending on the location of the incident? I told my daughter when she first went to college; if something, God forbid, should happen, call the POLICE first then campus security.

78 Recommend

6. RobertF commented March 9

RobertF

New York

It may well be that the present rules swung a little too far in the other direction. But we can’t go back to the way things were. Male students were prevented from graduating and had their lives ruined on accusations that were either baseless or went too far. I recall the story of mattress girl at Columbia, who had had consensual sex with a student but claimed that during consensual sex he went too far. She was almost successful in destroying his life, because the male student lost the first few rounds of school proceedings having received no due process. We can never go back to anything resembling that.

63 Recommend

7. Karen commented March 9

Karen

New York

I completely support federal laws that require colleges to provide increased protections for students with regard to sexual harassment and assault. That said, I think it would be a big mistake to reinstate the Obama-era ad hoc “tribunals” to prosecute sexual assault claims. These proceedings are often conducted by college faculty and staff with no (or little) legal training, and fail to provide even the most basic due process rights to the accused, which—unsurprisingly—disproportionately impacts male students of color and the working class, who do not have the means to adequately protect themselves. While I understand that the criminal justice system has miles to go to adequately support women and men who have suffered sexual assault, creating an ersatz court system for college students is not the way to go. Let’s continue to work to improve how the criminal justice system treats sexual assault victims—to the benefit *all* victims, whether enrolled in college or not.

63 Recommend

8. RG commented March 9

RG

upstate NY

As a male professor I feel obliged to explain to males that they are at high risk for career termination in a culture where one is presumed guilty if confused and there is no due process. There is the assumption that females never lie and cannot be presumed competent to speak up for themselves but must have their feelings protected at all costs. I now conduct all advising sessions online and record them, just in case.

62 Recommend

9. Doug R commented March 9

DDoug R

Michigan

Universities should play NO ROLE in investigations of sexual assaults. Sexual assaults are a crime and and investigations should be handled by county or state police departments, based on whether they are a private or state school.

You wouldn’t allow Microsoft or Google to investigate a sexual assault on their property, why would you let a university?

59 Recommend

10. Frank commented March 9

Frank

Boston

And this, men and parents of sons, is why you cannot trust Democrats.

They really believe that young men do not deserve due process of law.

They want to permanently deny accused young men a college education without the basic protections afforded defendants in CIVIL litigation.

No right to see the charges.

No right to discover and gather evidence.

No right to legal counsel.

No right to question the accuser.

No right to an impartial judge or jury.

56 Recommend

11. Jim commented March 9

Jim

Pittsburgh

I am a college professor and I have 2 sons and a daughter. Yes, I worry about my daughter, but more so about my sons. I have seen HR offices pursue charges against boys that even the girls themselves did not want to pursue. I have seen what it means for boys to lose their 6th amendment “confrontation clause” rights.

The problem is that schools now have administrators whose entire paycheck depends on looking for ways to prosecute boys who by third party accusations and even pure rumor are brought up on charges against unwilling women they are not allowed to confront. Bad break-ups happen ego’s are battered, but that should not mean quasi-legal life-destroying HR action is appropriate. Boys must be able to defend themselves fairly.

54 Recommend

12. Alison commented March 9

Alison

DC

This is a terrible idea, and I formerly prosecuted sex crimes in the Army. Accused individuals have rights too. The mindset of “all complaints are fact” and “all complaints describe a crime” when it comes to sex crime allegations is dangerous for the concept of due process; just because this is happening outside of a courtroom doesn’t mean it is less devastating.

What if this was your brother? Your son? Your father? Wouldn’t you want him to be given a chance?

54 Recommend

13. Talbot commented March 9

Talbot

New York

Besides “administrators and due-process activists” Harvard Law School faculty–including women–also criticized the old rules, and praised the changes DeVos made.

And since when did defending one of our core values–due process– require “activists”?

54 Recommend

14. bill commented March 9

bill

mendham nj

Under the Obama rules, if two young people with identical amounts of alcohol in their blood have consensual sex but two days later the girl believes she was too drunk to consent, the boy is thrown out of school with no meaningful ability to defend himself. We cannot return to that standard.

53 Recommend

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

ALL 127 READER COMMENTS 

Chris-zzz commented March 9

Chris-zzz

Boston

Due process can be tough to stomach, especially for those of us who tend to side with victims. But, in the long-run, due process rights are just and essential to fairness for everyone. I do agree that more of these cases should be reported to the police and not adjudicated by universities.

6 Recommend

Chauncey Gardiner commented March 9

Chauncey Gardiner

Virginia

Good bye to due process — again. Bring back the Star Chamber persecution.

You do know that folks sorted through of due process and equality before the law during the English Civil Wars. Right? The Administration is sending us back to 1640. Enjoy the ride.

5 Recommend

Jim commented March 9

Jim

NC

Bias in the media does not take the form of explicit, mustache-twirling lies. It seeps in under the floorboards, as in this article.

  1. The subheadline (which I know is from the copy desk, not the authors): “…regulations by Betsy DeVos that gave the force of law to rules that granted more due-process rights to students accused of sexual assault.”

Excuse me: *granted* more due-process rights? The government doesn’t grant rights, which inhere in each human being from birth. The government *protects* rights. The left gets this wrong a lot.

  1. “…effectively beginning his promised effort to dismantle Trump-era rules on sexual misconduct …”

If you want to smear something, just call it “Trump-era.” Easy-peasy. Look, I’m also glad he’s gone. But I had not been in the habit of thinking of the 230-year-old Fifth Amendment to the Constitution as a “Trump-era” provision. (That’s the one about “due process of law.”)

(I confess I had been thinking of the recent assault on the Fifth Amendment in these cases as an “Obama-era” provision.)

Sexual assault is a violent crime. There are places in the world where rape is still a capital crime. Murder is the only more serious crime one person can commit against another.

If one college student were to murder another, would the killer face a Student-Faculty Adjudication Committee hearing? No: You’d call the police. Rape on campus? Call the police. Period.

7 Recommend

Rick Sanders commented March 9

Rick Sanders

Whittier

Make both of the penalties the same, If you are guilty of rape it’s prison time, If you are guilty of faking a rape it is prison time, case closed.

2 Recommend

1 REPLY

Ben S., NYC commented March 9

Ben S., NYC

New York, NY

@Rick Sanders You don’t understand the issue. If it were that cut and dried–that we could determine with certainty that one student is telling the truth and the other is lying–then we wouldn’t have the problem.

Fact is, in most of these cases, both students are telling the truth about some aspects of their encounter, and both students are lying about some aspects, and some aspects are open to multiple interpretations

1 Recommend

Angry in VA commented March 9

Angry in VA

Virginia

It is beyond clear that racist white males simply want to institutionalize their right to sexually abuse defenseless women. With regards to trans women in sports, there is no biological basis for gender. It is simply a social construct. This is discrimination against trans people by the white male patriarchy, pure and simple .

0 Recommend

Barbara commented March 9

Barbara

SC

As a former probation officer, I have never understood why allegations of rape and sexual assault are the responsibility of the school rather than law enforcement, as they would be if they occurred anywhere else. Let the law take its course, while the schools focus on making their campuses safe and educating both young men and women about what constitutes sexual assault and the fact that “no means no” at any point along the way to intercourse or other sexual activity.

7 Recommend

Concerned Citizen commented March 9

Concerned Citizen

New York

This all started when Obama declared there was a rape culture on campuses, but never produced any evidence to back it up. He then had his Education Department send out a directive – without the normal formal regulatory process which included feedback – which, among other things, changed the basis of conviction for sexual assault from the criminal standard of the court system of beyond a reasonable doubt to the civil standard of 50.001%, and eliminate normal due process and defendant rights, such as the opportunity to confront the accuser. This effectively meant that almost every college young man who was accused of sexual assault, was guilty, and his future jeopardized.

And to top it off, the Obama directive threatened any university that did not comply with the order, with a cutoff of federal funding. Numerous law suits were filed and many won by students unfairly convicted. So that reversing DeVos’ reasonable reversal of the extreme regulations of the Obama Administration will be difficult. While DeVos can be, and has been, criticized in other areas, her actions in the are of Title IX were not only fair, but exemplary.

8 Recommend

JS commented March 9

JS Midwest

Common sense and common decency demand that a balanced set of guidelines are adopted in the use of Title IX to address campus sexual assault. Quote from the article applicable here: “The (Obama-era) guidance, however, was also criticized by school administrators and due-process activists, who said it amounted to an illegal edict that incentivized schools to often err on the side of complainants. Hundreds of federal and state lawsuits have been filed by students accused of sexual misconduct since 2011, when the Obama administration issued its guidance, and dozens of students have won court cases against their colleges for violating their rights under those rules.”

The article warns that any new guidelines that violate due process rights for the accused will be treated as replacing one injustice with another and declared void. The supreme court has ruled that due process requires that laws not be “unreasonable, arbitrary, or capricious.” Too many campus proceedings have come to violate these guidelines. Withdrawal of federal funds from universities is a powerful lverage which, used properly, can right the long history of wrongful campus assault absent consequences. The same threat of fund withdrawal, sadly, has threatned universities into assault investigations which violate the basic tenets of the supreme court ruling.

1 Recommend

MR2987 commented March 9

MR2987

Washington DC

This article perpetuates the myth that Obama-era guidance required schools to curtail due process rights for students accused of sexual assault. It did no such thing. The only mandate was that the standard of proof in those cases had to be preponderance of the evidence (i.e., more likely than not), something the DeVos regulation reversed. Beyond that, decisions to limit due process rights of accused students were made not by the Obama administration but by school administrators habitually focused on protecting the interests of schools at the expense of the rights of individual students. They then blamed it on the Obama-era guidance, falsely claiming it forced them to do what they were always inclined to do, which is to deal with a problem like sexual harassment in a way that will present the least risk to their institution even if it means trampling the rights of their students. In the end, students accused of sexual assault were sacrificed by their schools just as students who were victims of sexual assault had been sacrificed for decades when it was more convenient for schools to sweep their accusations under the rug. The conflict here is not between students who are victims of sexual harassment and students accused of sexual harassment – all of whom benefit from a system that includes a full set of due process protections – but between students and school administrators. You can already see the lobbying beginning from the latter to weaken protections for students.

1 Recommend

Greg commented March 9

Greg

hingham, MA

This is what happened in Salem in 1692. Accusation equates to guilt. Spectral evidence is admissible. What could go wiring?

0 Recommend

CC commented March 9

CC

San Francisco

Reading the comments I’m reminded that Defending Our Children is #1 on any list, and it looks like more parents can imagine their children being accused than being victimized.

0 Recommend

John commented March 9

John

Upstate NY

So much confusion about the difference between legal proceedings and administrative tribunals. As always, follow the money. Colleges are deathly afraid of losing federal funds, so they demonstrate that they have in place a system that complies with the non-discrimination purpose of Title IX. At the end of their administrative process, a “guilty” party is not thrown in jail; that person is usually suspended or removed from the institution. If that person equates that to having ruined his (in most cases) life, couldn’t he sue for damages? That would bring the whole matter before the courts, where it becomes a legal proceeding, which is where it should have been in the first place.

7 Recommend

4 REPLIES

MR commented March 9

MR

Chicago

@John Doesn’t that administratively guilty person still carry a Scarlet Letter when he/she attempts to enroll for employment for or student admission to another college? Won’t they also need to disclose their past in other situations?

7 Recommend

Joe commented March 9

Joe

Here

@MR No, the student will not have to disclose anything in the future. Only criminal convictions (or professional sanctions in certain licensed professions) meet that criteria.

1 Recommend

John commented March 9

John

Upstate NY

@MR Not if they won the lawsuit I suggested. My notion is that a proper legal proceeding would expose all the weaknesses of an unjustified “guilty” ruling from an unqualified panel operating under a murky set of standards. I’d still much prefer that people take sensible steps to keep themselves out of these situations.

2 Recommend

Donald

New Orleans

@John That has been the case. Some universities are losing their drawers because they didn’t give students due process. University of California SD, U of Tenn Chattanooga, Middlebury, George Mason and so on. They all got sued by male students punished by these schools. They have to pick their poison. Lose funding due to Title IX or lose lawsuits when they get sued for running kangaroo courts.

2 Recommend

GRH commented March 9

GRH

New England

What happened to the supposedly moderate, centrist Biden? It was bad enough when the Obama administration forced this through in the “Dear Colleague” letter during Obama 2nd term but at least then it was more of a good faith effort and they had no idea how the real-world results would play out. Now, everyone has seen the real world results and it was absolutely disastrous.

Just because Trump the man was outrageous does not mean every single policy issued by his administration was itself de facto outrageous. In one of the few positives, Ms. DeVos did a thorough deep dive on this issue and brought badly needed corrections. Biden may have a “moderate” and “centrist” demeanor or tone but the policies coming out of his administration are anything but.

The Democratic Party has given up any pretense of its once consistent principles and values, such as civil liberties and due process, in favor of catering to the very worst instincts wired into humanity, most especially tribalism, and in doing so, have become nothing more than the mirror image of Trumpism. Sad and strange times.

20 Recommend

1 REPLY

BayArea101 commented March 9

BayArea101

Midwest

@GRH Well said – thank you.

1 Recommend

Nick Costantino commented March 9

Nick Costantino

Ridgefield, New Jersey

Assaulted: inform the police, file charges.

Harassed: enlist a lawyer, file a lawsuit.

Make sure students understand the foregoing, and have on campus a legal aid office and a branch of the local police.

Investigations and adjudications of civil and criminal wrongs don’t need to be/shouldn’t be done by the schools.

The schools are free to disqualify from enrollment/continued enrollment persons convicted of sexual assault and/or found liable for sexual harassment.

13 Recommend

2 REPLIES

Andrew commented March 9

Andrew

Colorado

@Nick Costantino All major universities have their own police department. That’s where students go to report their assaults, and for decades those reports have then been not taken seriously or even overtly hidden to protect the university’s reputation.

Even ignoring the issues with universities running their own police departments, just think about how private business handle this. You don’t have to be convicted of criminal charges for HR to terminate you for inappropriate behavior. You don’t get criminal due process because it isn’t a criminal trial.

2 Recommend

Joe commented March 9

Joe

Here

@Nick Costantino I agree that victims of sexual assault should contact the police, but your comment is simplistic. The criminal justice system has never come close to adequately addressing the epidemic of sexual crimes in this country and we know that victims have often been thoroughly abused a second time by the system. It is for that reason that all victims, male and female, are being afforded another venue in which to address these issues. The standards are lower because the stakes are lower; these are not criminal proceedings. Requiring a criminal conviction or judicial finding of civil liability for a simple removal from an institution of learning is an unreasonably high bar in my view. Certainly workplaces don’t have to meet that standard before they hand you a pink slip. They can show you the door for no reason at all, and often do.

1 Recommend

czarnajama commented March 9

czarnajama

Warsaw

I just hope that people at the White House read the commentaries here, and realise how overwhelmingly people oppose any reversion to the Obama era “Dear Colleague” rules.

The Administration should instead provide assistance to cities and town with universities and colleges to improve the police stations adjoining campuses, with properly trained male and female officers able to correctly and sympathetically deal with complaints, and encourage the reduction of administrative units bloated with personnel supposedly mandated by Title IX. The cost of tertiary education must be brought down.

I spent six years at a Canadian university with an effective RCMP unit next to it, and was most impressed by their understanding and efficiency. Even today, that unit handles more complaints than the University administration. But then, that University has an idyllic location, miles from any difficult neighbourhood.

11 Recommend

Diane Merriam commented March 9

Diane Merriam

Kentucky

I would hope that due process is not thrown out again. There may be limits on what a student’s representative might do, just as no badgering or “blaming” the victim in regular court, but the consequences of a “conviction” for a student are almost as bad as they are in regular court. A person’s life can be destroyed.

11 Recommend

SK commented March 9

SK

Chicago

So the article quotes Jill Biden’s Chief of Staff as stating that the accuser and the accused deserve due process and the article simply conveys that the administration is reviewing and modifying the current policy. Yet a majority of the commenters conclude that the accused will have no due process rights going forward. This is the overreaction and lack of critical reading that leads to someone like Trump being elected.

5 Recommend

5 REPLIES

czarnajama commented March 9

czarnajama

Warsaw

@SK A good point. I think most commenters here just don’t want to see any reversion to the “Dear Colleague” guidelienes, and hopefully the review will not recommend such a reversion.

8 Recommend

Lilo commented March 9

Lilo

Michigan

@SK “As vice president, Mr. Biden was integral to President Barack Obama’s efforts to overhaul Title IX…”

“The Obama administration issued guidance to schools, colleges and universities that critics in and out of academia said leaned too heavily toward accusers and offered scant protections or due process for students and faculty accused of sexual harassment, assault or other misconduct.”

It is not an overreaction when a Democratic apparatchik promises “review and modification” to a policy which overturned her boss’ husband’s previous policy.

When it comes to allegations of assault or harassment made by women against men, some of the current Democratic ideas about “fairness” are not in line with what is constitutionally guaranteed.

4 Recommend

independent voter commented March 9

independent voter

Wisconsin

@SK ” Mr. Biden said they would “return us to the days when schools swept rape and assault under the rug, and survivors were shamed into silence.””

When that is the quote from the current president who wants to “review and modify the current policy”….it sounds like he wants to do much more that just review…..

1 Recommend

Hudsucker Proxy

AZ

@czarnajama It’s not a good point. At all. An accuser has no due process rights.

1 Recommend

Hudsucker Proxy

AZ

@SK Good God. An accuser has no constitutional right of due process.

This is the kind lack of critical thinking that gets people like Joe Biden elected. You view the accuser and accused as having equal rights because neither you nor anyone in Biden’s administration has any idea what the law actually is.

1 Recommend

David R. Segal commented March 9

David R. Segal

College Park, MD

Perhaps the one thing I have agreed on with the Trump DOE is the protection of the rights of the accused under Title IX. While most claims have some substance to them, a significant minority do not. Universities have pursued all with a vengeance, apparently to develop a body count to demonstrate due diligence, trampling the rights of all accused.

12 Recommend

acule commented March 9

acule

Lexington Virginia

Lucky me.

My false accuser merely lied in a divorce court and I soon moved permanently to another part of the USA.

Interestingly, false accusers need to break two of the Ten Commandments (you’d think Do Not Lie would suffice). It must have an ancient history.

6 Recommend

Driftwood commented March 9

Driftwood

WNC

Reading the comments, it appears that there may exist a fundamental misunderstanding. This process is a student code of conduct hearing for sanctions within the academic institution (somewhat akin an HR complaint in the workplace) and NOT a criminal trial. Should all academic sanctions hold more due process? Perhaps. They can have serious repercussions. However, the repercussions are not on par and are completely separate from criminal proceedings.

5 Recommend

1 REPLY

Paul commented March 9

Paul

Chicago, IL

@Driftwood Apparently you haven’t really researched the impact that the Obama era policy had on people. They were expelled from college. Many were unable to gain admittance to another. Scholarships were lost. There names were made public, and jobs were lost. In extreme cases they became homeless.

Yes they are different than a criminal proceeding. Such a proceeding affords the accused due process. The hearings that Biden supported previously did not.

While there is no jail time involved, the repercussions do have life long ramifications.

1 Recommend

Michael commented March 9

Michael

Manchester, NH

It seems that some of the commenters do not fully appreciate what due process means. The full term is “due process of law” and it is a legal standard used in a court of law. Due process-like proceedings are used in administrative tribunals but it is not true due process because it is not a court of law. Allowing the schools to set the evidentiary standards is not due process. Allowing third-parties to cross-examine witnesses deprives the accused the right to confront the accuser. This is presumably to erect a firewall to ensure impartiality. But impartiality is the role of the court, not the advocates.

Bottom line, this needs to be done in the courts, not by the schools. These issues are always fraught because there usually is no physical evidence. It will never be easy but the schools are not set up for it and none of it applies to privately funded schools.

12 Recommend

Russ commented March 9

Russ

Chicago

This is one of the best and most balanced articles on a sensitive topic that I’ve read in the Times in years. Well done to both writers and editors.

6 Recommend

Mike commented March 9

Mike

NY

It’s he-said she-said with a kangaroo court jury of professors who may be highly biased or deeply fearful of making a call that is perceived to be anti-victim. In reality, they have absolutely no place being involved in this sort of investigation, especially when the decision can bear so much weight on their own reputation and their employer’s.

As abhorrent as sexual assault is, this isn’t the answer, and these sort of half-baked appeasement bandaids make Democrats look ridiculous. It’s like they already want to lose in 2022. Please, for the love of god get it together and don’t elect another Trumpist.

16 Recommend

Todd commented March 9

Todd

Key West

This is bad idea. I realize that the Biden adminstration is committed to ridding the earth of anytime from the Trump adminstration regardless of the merits. But this issue isn’t even close. Courts across the nation have found in favor of men adjudicated against under the previous Obama “dear colleague letter” for having their rights violated.

Many feminists law professors, hardly Trump’s base, strongly supported the new standards. And it is worth noting these, pick your favorite name, Star Chambers, Kangaroo courts, disproportionately have been used against black male students.

21 Recommend

Amy Siegel commented March 9

Amy Siegel

Santa Fe

It has always eluded me as to why women on campus rely on the institution to address sexual assault on campus. It is a legal issue and should be handled by the police and the district attorney. The institution is incapable of denying their own self interest in the resolution to the crime. They do not have the capability to investigate the crime.

Why should women on campus be denied the same protections as women in the town?

If you are faced with any kind of assault, go to the police, document the evidence, take a friend with you. Don’t go to your TA or the student life administrator, go to the police.

16 Recommend

1 REPLY

A Thinker, Not a Chanter. commented March 9

A Thinker, Not a Chanter.

USA

@Amy Siegel The reason is the title 9 approach is different. Go to the police and you get rape kit tested, charges maybe brought, you’ll be cross examined at trial, with a high burden of proof.

Title 9 – just file a complaint. No test, no cross, no beyond a reasonable doubt burden. Even the definition of sexual assault is different in title 9, depending on the student handbook (in many places, intimate contact requires affirmative consent before each act. No affirmative consent obtained? Sexual assault).

But what people miss is that this is also a student conduct code issue. Like plagiarism. The school needs to address the allegation. It also needs a fair system.

6 Recommend

Donna Gray commented March 9

Donna Gray

Louisa, Va

What happened to Blackstone’s concept of “It is better that ten guilty persons escape than that one innocent suffer.” ? Or as John Adams said defending British soldiers charged with murder for their role in the Boston Massacre,

“It is of more importance to the community that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished….when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”

14 Recommend

anneoc commented March 9

anneoc

massachusetts

Sexual and other abuse allegations must have some burden of proof. Remember the Salem Witch Trials? On the other hand, there is the “where there’s smoke there’s fire” idea. Both sides need to be able to present their case to a neutral party.

6 Recommend

just Robert commented March 9

just Robert

North Carolina

Judgment especially in areas such as sex that are run by our emotions is done by the beholder. We need in sexual harassment cases impartial boards that can judge evidence on the facts without judgment on either party until they can be pinned down more effectively. And these boards of inquiry must be separate from the institutions where the events occurred to be. If possible we must find a middle ground that respects the individuals involved then take actions either legal or otherwise.

1 Recommend

K commented March 9

K

NY

If Obama’s rules were applied to Biden himself, he would not be president.

But, hey, no worries about turning a whole generation of young men into Republicans, right?….

12 Recommend

alyosha commented March 9

alyosha

wv

You write that the Biden administration will reconsider “rules on sexual misconduct that afforded greater protections to students accused of assault.”

What you should have written is: “rules that afford a modicum of the normal rights of an accused person..”

11 Recommend

Thomas commented March 9

Thomas

Buffalo

Does Biden realize the irony that this means more Tara Reades on college campuses. Should we believe all accusers all the time?

8 Recommend

Honora commented March 9

Honora

NY

Who would argue against more due process rights for the accused? Don’t liberals have sons?

13 Recommend

Callie commented March 9

Callie

New York

Every needs to check out HelpSaveOurSons.com. The Obama era policy has devastating effects, on men of color in particular, accused of sexual assault. We need Due Process for both involved.

9 Recommend

Disillusioned commented March 9

Disillusioned

NJ                                                                                                                                    Times Pick

As with most issues today, Party views on sexual assault or sexual harassment are diametrically opposed. Republicans refuse to recognize that the “boys will be boys” attitude no longer flies. Many believe that harassment is a badge of honor, a sign of masculine virility. But too many Democrats are also willing to blindly accept a victim’s story without a complete investigation. Not every rape claim is true, just as not every allegation of consensual sex is accurate. Schools need to educate the student body and thoroughly investigate all claims without the influence of bias.

13 Recommend

3 REPLIES

Todd commented March 9

Todd

Key West

@Disillusioned Thinking that young men accused are entitled to some sembalance of due process when accused of something that may well ruin their lives is hardly thinking “boys will be boys” And courts across the nation have agreed.

11 Recommend

GRH commented March 9

GRH

New England

@Disillusioned , the Betsy DeVos led rules on this matter in no way support a “boys will be boys” attitude. They worked with all stake-holders and, as even this article acknowledges, took into account feedback from victims’ rights groups and provided a dating violence definition; rape shield protections; supportive measures for victims, etc. Also, it is discrimination to frame this in terms of assuming all alleged harassers are male (check out the Avita Ronell case at NYU). Of course there were many outrages from the Trump administration but on this particular issue, they got it right. It is disturbing to see the supposedly “moderate” and “centrist” Biden taking action to possibly undermine and weaken the DeVos led rules. Let’s hope they leave the new rules in place after conducting their review instead of doubling and tripling down on the worst instincts of tribalism that threaten to turn the new Democrats into a mirror image of Trumpism.

1 Recommend

Paul commented March 9

Paul

Chicago, IL

@Disillusioned Where is the evidence that Republicans won’t give up the boys will be boys attitude? If any thing it is the Democrats that haven’t given it up. Whenever a Republican does something along the lines of this article, they are generally expelled within days. Only once have I seen the Democrats oust someone, the comedian from MN and his loudest accuser in the Congress now says it was a mistake. Biden’s accuser was ignored. Originally Cuomo’s accuser was ignored. It was only after the heat started to come down about the nursing homes (which the Dems wanted to avoid) did they pick up the banner and yet it was left to the Republicans in NY to put the impeachment before the NY house. What about the AG from Virginia. Why is he still in office with no investigation? Bill Clinton? Who did you say can’t let go of boys will be boys?

1 Recommend

PTROTH47 commented March 9

PTROTH47

NYC

Where is the fairness in allowing transgender athletes to participate in women’s sports? Individuals who are biologically men and have gone through puberty will have the physical advantage of much greater muscle mass, which renders than faster and stronger. It may be that there are many individual women who are still better athletes than the transgender women, but, at a competitive level, there is no doubt that transgender athletes have an advantage. I don’t see that as an issue of civil rights for the transgender woman. She has every right to undergo a sex change operation and every right not to be discriminated against in areas such as housing and employment. However, that does not entitle this person to an advantage over non transgender women in competitive sports. If the same advantage were obtained by taking steroids, including testosterone, the person would be barred from competition.

43 Recommend

RobertF commented March 9

RobertF

New York

It may well be that the present rules swung a little too far in the other direction. But we can’t go back to the way things were. Male students were prevented from graduating and had their lives ruined on accusations that were either baseless or went too far. I recall the story of mattress girl at Columbia, who had had consensual sex with a student but claimed that during consensual sex he went too far. She was almost successful in destroying his life, because the male student lost the first few rounds of school proceedings having received no due process. We can never go back to anything resembling that.

63 Recommend

Jim commented March 9

Jim

Pittsburgh

I am a college professor and I have 2 sons and a daughter. Yes, I worry about my daughter, but more so about my sons. I have seen HR offices pursue charges against boys that even the girls themselves did not want to pursue. I have seen what it means for boys to lose their 6th amendment “confrontation clause” rights.

The problem is that schools now have administrators whose entire paycheck depends on looking for ways to prosecute boys who by third party accusations and even pure rumor are brought up on charges against unwilling women they are not allowed to confront. Bad break-ups happen ego’s are battered, but that should not mean quasi-legal life-destroying HR action is appropriate. Boys must be able to defend themselves fairly.

54 Recommend

3 REPLIES

Marcel commented March 9

Marcel

New York

@Jim You’re pointing to a larger issue with today’s American colleges. The explosion of the administrative-punitive complex on campuses. Energy and vast resources are being spent on keeping the faculty and students in check, regulating every aspect of academic and co-curricular life. All those deans and office holders have top justify their existence and they often rely on the support of the most loud and extreme voices on campus.

11 Recommend

Nemo commented March 9

Nemo

coral reef

@Jim Do you understand that these are not criminal proceedings and that therefore the 6th amendment confrontation clause does not apply? You can have an opinion on this issue but the basic misunderstanding of how our Constitution works is depressing. It’s like the right yelling about free speech when a publisher decides not to sell a certain book. The free speech protections of the Constitution are not implicated in that case either. Likewise, the constitutional protections due to a defendant in a criminal proceeding have no bearing on an administrative action taken by a college.

1 Recommend

Jim commented March 9

Jim

Pittsburgh

@Nemo Do you understand that that is exactly the problem? If these are not criminal charges they should be, and it is by circumventing the law by HR offices that boys are unable to defend themselves and their lives are destroyed by mere allegations.

5 Recommend

CanadianAlly commented March 9

CanadianAlly

Manitoba

It seems simple and why is it not: due process for all sides following an accusation of a criminal act involving students on school property and, call the police, not the school. Thus we would not see a different process conducted by each school in the country as each struggles to conduct their own trial while interpreting rules that the Justice system has a hard enough time with.

19 Recommend

Almighty Dollar commented March 9

Almighty Dollar * this person makes several negative comments about DeVos, not the regs

Michigan

Speaking from Michigan, anything Devos is involved with is most likely partisan, ideological, and not well thought out.

The policies she has bought here have been universal failures. From her charter schools (always in poor areas) to her advocating for religion, to her animus towards unions (so many black teachers are in public school unions).

Sadly, she is a dilettante with lots of “ideas” but no education in the field, and no experience as a teacher or administrator.

Another reason for massive inheritance taxes.

12 Recommend

8 REPLIES

Independent Observer commented March 9

Independent Observer

Texas

@Almighty Dollar “Speaking from Michigan, anything Devos is involved with is most likely partisan, ideological, and not well thought out.”

What’s not well thought out is your so-called argument, which fails to address the specific “Due Process” rights that she restored to university campuses. Your own attacks are simply ad hominem in nature, which generally fail in debate settings.

10 Recommend

mother commented March 9

mother

Ohio

Actually, had DeVos’s new policy had taken place in time, my son would be alive today. His ex girlfriend couldn’t accept his break up and went on to accuse him of sexual misconduct 7 mos after the breakup. She incited internet mob, he had “hearings” in the middle of november (during heavy testing in his 300 and 400 level classes) he was found dead the weekend before thanksgiving. He had no due process rights.

20 Recommend

Almighty Dollar commented March 9

Almighty Dollar

Michigan

@Independent Observer The best guess or a persons (future) performance is past track record. That’s why so much worry about CV’s.

Devos bought her way in to a job she had no ability to fill.

From Devos – Asked whether Christian schools should continue to rely on giving—rather than pushing for taxpayer money through vouchers—Betsy DeVos replied, “There are not enough philanthropic dollars in America to fund what is currently the need in education…Our desire is to confront the culture in ways that will continue to advance God’s kingdom.”

Again; “I have decided, however, to stop taking offense at the suggestion that we are buying influence,” DeVos once remarked. “Now I simply concede the point. They are right. We do expect something in return.”

And this: DeVos has taken this pay-for-play approach before. Just consider the impact she had in her home state of Michigan last year. As a reward for passing a no-accountability charter school law in the state, the DeVos family once gave state Republicans $1.45 million in a seven-week period. That’s about an average of $25,000 a day. “A filthy, moneyed kiss” is how the Detroit Free Press’ editorial page editor described the lobbying effort.

Ad hominem? No.

Her own words reveal her. She bought her way in, and is a dilettante. Charter’s here have been failures, filled with fraud. And almost always in poor black areas. Not the multi million dollars public schools in Ada.

2 Recommend

Doug

IndianaMarch 9

@Almighty Dollar I fail to see where your critique actually draws on evidence. Yes, you disagree with charter schools and agree with teachers’ unions as a matter of principle, but you haven’t actually demonstrated in any way how DeVos’ policies harmed or helped students. How are public schools better for poor students than charter schools? What makes teacher’s unions morally correct simply because they have black members? A deeper level of analysis is required.

2 Recommend

Almighty Dollar commented March 9

Almighty Dollar

Michigan

@Doug From Politico: Despite two decades of charter-school growth, the state’s overall academic progress has failed to keep pace with other states: Michigan ranks near the bottom for fourth- and eighth-grade math and fourth-grade reading on a nationally representative test, nicknamed the “Nation’s Report Card.” Notably, the state’s charter schools scored worse on that test than their traditional public-school counterparts, according to an analysis of federal data.

Critics say Michigan’s laissez-faire attitude about charter-school regulation has led to marginal and, in some cases, terrible schools in the state’s poorest communities as part of a system dominated by for-profit operators. Charter-school growth has also weakened the finances and enrollment of traditional public-school districts like Detroit’s, at a time when many communities are still recovering from the economic downturn that hit Michigan’s auto industry particularly hard.

1 Recommend

czarnajama

WarsawMarch 9

@Almighty Dollar This has nothing whatever to do with the article and issue we are discussing here.

3 Recommend

Almighty Dollar commented March 9

Almighty Dollar

Michigan

@Almighty Dollar The DeVoses have at times targeted Republicans who didn’t fall in line with their education agenda. When state Rep. Paul Muxlow, a Republican elected in 2010, voted against a 2011 effort to lift a cap on the number of charters that can operate in the state, the couple’s Great Lakes Education Project spent nearly $185,000 to support a primary opponent against

Muxlow a year later. Muxlow said he was viciously attacked by DeVos-financed campaign mailers even though the law to lift the cap passed easily, and he is a reliably conservative lawmaker. He said he felt like the DeVoses were looking for a reason to get rid of him, largely because he was a former public-school teacher. Muxlow hung on to survive the 2012 primary by just 132 votes.

“They were watching me like a hawk. I was a teacher on the conservative side — and how could that be?” Muxlow said. “My sense is that Great Lakes Education Project, under the control of the DeVos family, would like to close out public schools.”

0 Recommend

Almighty Dollar commented March 9

Almighty Dollar

Michigan

@czarnajama Please reread my original comment. I stated any policy Devos crafted is most likely not very good. And I was challenged and told I had no evidence. So I offered some. Crete a new policy, hold offenders accountable. Fine. Just know whatever it is Devos was behind is most likely political and not practical.

0 Recommend

Oliver commented March 9

Oliver

New York

If your son is accused of sexual harassment you run to his side. If your daughter is the accuser of sexual harassment you run to her side. It’s whoever’s ox is being gored. That’s how these things tend to work.

6 Recommend

1 REPLY

mother commented March 9

mother

Ohio

Had DeVos’s new policy had taken place in time, my son would be alive today. His ex girlfriend couldn’t accept his break up and went on to accuse him of sexual misconduct 7 mos after the breakup. She incited internet mob, he had “hearings” in the middle of november (during heavy testing in his 300 and 400 level classes) he was found dead the weekend before thanksgiving. He had no due process rights. My daughter went on 1 year later to die by suicide. This single “policy” took both of our beloved children.

2 Recommend

Shamrock commented March 9

Shamrock

Westfield

The Obama rules were clearly a denial of due process and of simple human decency. Let alone incredibly sexist.

41 Recommend

Doug commented March 9

Doug

Indiana

The paper of record would certainly never miss an opportunity to point out that the rules the Biden Administration is reinstating disproportionately target Black and Latino students, were it not the Biden Administration doing so. A glaring omission.

20 Recommend

bill commented March 9

bill

mendham nj

Under the Obama rules, if two young people with identical amounts of alcohol in their blood have consensual sex but two days later the girl believes she was too drunk to consent, the boy is thrown out of school with no meaningful ability to defend himself. We cannot return to that standard.

53 Recommend

Ehillesum commented March 9

Ehillesum

Michigan

So the left doesn’t care for due process, eh? What a surprise.

26 Recommend

1 REPLY

Kb commented March 9

Kb

Ca

@Ehillesum I’m as far left as they come, and I supported most of the changes the trump administration enacted. Why? Because I believe in due process. I also think that in cases of rape/sexual assault, they should be reported to the police and tried in a court of law, not by professors and administrators.

9 Recommend

Driftwood commented March 9

Driftwood

WNC

I was raped on campus at NC State at 18. I couldn’t find justice and facing my rapist in class was so impossible I turned to substances until I was expelled that same semester. I didn’t finish my degree until almost a decade later. It nearly destroyed me. The monster of my attack chased me and constantly had me considering jumping off the proverbial cliff. It seems that as a society that we tend to worry so much about the wrongly accused that we dismiss the victims lives lost to the violence, made easier by the fact that it’s mostly women. And what is a woman’s life worth in comparison to the man’s? That seems like the real question we tend to avoid in this process.

15 Recommend

2 REPLIES

Todd commented March 9

Todd

Key West

@Driftwood While I certainly feel sorry for you personal situation I think this is the answer to your question. Our entire system of law is based on the concept of innocent until proven guilty. And guilty has to be beyond a reasonable doubt. I don’t think it has or even had anything to do with a man’s life’s value verses that of a women. And you may think a world were men acccused by women are automatically guilty is preferrable. Unfortunately we have tried that system. It is how young black men in the south were accused of rape by white women. The were typically lynched immediately. And it is worth noting that the Obama adminstration standard was disproportionately victimizing young men of color.

6 Recommend

Driftwood commented March 9

Driftwood

WNC

Times Pick

@Todd I think we need a system that balances needs better. Having experienced it I could never recommend another survivor go through it. There has to be a better way that doesn’t destroy the lives of the minority of survivors brave enough to come forward, especially when the perpetrators are so often able to walk away without consequence. It’s not an all or nothing proposition. And having been expelled,* I can assure everyone that it’s not the same as a criminal trial and does not carry the same consequences. I can agree, however, that it is too arbitrarily applied and the system needs to be reformed. But in a way that also values the lives and education of the survivors of rape and sexual assault.  *expelled for failing after sexual assault

9 Recommend

Gary Cohen commented March 9

Gary Cohen

Great Neck NY

Colleges and universities have little incentive to enforce laws that will put their “higher learning” institutions in a bad light and hurt fund raising. At many large division 1 schools the football and basketball coaches earn more than the president of the universities.

8 Recommend

Daddy commented March 9

Daddy

WyomIng

Regressive move.

Biden cannot be in control of his faculties. Didn’t he go to law school? It’s one thing if you never studied western civilization, Judeo Christian values or law that removing due process seems like a good idea but Biden had that education.

12 Recommend

1 REPLY

Victoria Charlton commented March 9

Victoria Charlton

NJ

Did you read the article or simply decide Biden was incompetent based upon your conservative bias?

3 Recommend

Midwest Josh commented March 9

Midwest Josh

Four Days From Saginaw

Difficult to have buyers remorse given that Trump was the other option. That being said.. Decisions like this, the $86 billion in union bailouts without strings covered here yesterday, and the underreported mess now at our southern border – get to work NYT – Biden is going to wear out his welcome in the middle very quickly. We can’t afford another Trumplican gaining any traction off of these policy decisions. Do better, Mr. President.

30 Recommend

1 REPLY

GRH commented March 9

GRH

New England

@Midwest Josh , it’s frightening because Biden was supposed to be moderate and centrist but his policies have been anything but. Instead of trying to hew to the center a la Bill Clinton or Obama (during his first term, that is), the Democrats have gone far left from the get-go and may be in serious danger of empowering and electing another Trump, but this time someone more disciplined and savvy. Trump was rightly rejected because of his many outrages but it was not an endorsement of the far left.

Perhaps Bill Clinton was a once-in-a-generation type political talent but Biden does not seem to have the Bill Clinton savvy for finding the center at all.

1 Recommend

Lilo commented March 9

Lilo

Michigan

So basically if you are a male college student you will be found guilty with no ability to defend yourself. Yeah, THAT makes sense..

35 Recommend

Suzanne Storms commented March 9

Suzanne Storms

Hong Kong

Are we calling that four years an “era” now?

2 Recommend

Oliver commented March 9

Oliver

New York

Just because Trump was a horrible president doesn’t mean he didn’t get some things right. He got this one right. No need to tinker. Sometimes it’s best to leave well enough alone.

37 Recommend

tom commented March 9

tom

ireland

there should be no action taken by institutions these complains should be dealt with by the police only

20 Recommend

RG commented March 9

RG

upstate NY

As a male professor I feel obliged to explain to males that they are at high risk for career termination in a culture where one is presumed guilty if confused and there is no due process. There is the assumption that females never lie and cannot be presumed competent to speak up for themselves but must have their feelings protected at all costs. I now conduct all advising sessions online and record them, just in case.

62 Recommend

Talbot commented March 9

Talbot

New York

Besides “administrators and due-process activists” Harvard Law School faculty–including women–also criticized the old rules, and praised the changes DeVos made.

And since when did defending one of our core values–due process– require “activists”?

54 Recommend

LaFaye commented March 9

LaFaye

Nova Scotia

And again the Dems choose to distract with culture war nonsense rather than implement meaningful change (read: increasing the minimum *ahem* starvation wage, medicare for all, etc ) that will *actually* improve the lives of increasingly beleagured and abused middle-and working class people. I am dissappointed, but in no way surprised.

If Biden actually believes in these outrageous standards he’s pushing, let his administration revisit the Tara Reade case and apply them there.

26 Recommend

KPO commented March 9

KPO

Colorady

All of these comments so far are disturbing. Do people really think that false accusations are the rule here rather than the very rare exception? It speaks volumes that the commenters think that young women would put themselves through the shame, humiliation and trauma of accusing someone of sexual assault just for what? Revenge? Laughs? Also, we’re NOT talking about a civil right being taken away in these cases—it’s a privilege to study on a particular campus. And revoking a privilege does not require due process at the level a criminal case does. Want your sons lives not to be ruined? Teach them to respect women’s bodies as under the women’s control. It’s really not that difficult.

16 Recommend

4 REPLIES

Lori commented March 9

Lori

AZMarch 9

I can’t thank you enough for this comment.

1 Recommend

Adrienne commented March 9

Adrienne

Virginia

Why should anyone’s life be turned upside down and inside out over an accusation he has little to no recourse in refuting before a committee that has the power to mark them a sexual predator absent any judicial finding? And, good luck transferring to another school with this on the record. If a student believes herself to be the victim of a crime, she should report such to the police, with the assistance of her school.

8 Recommend

Doug commented March 9

Doug

Indiana

@KPO Would you care to address the fact that black men make up only 6% of the college population but over 25% of Title IX investigations under the Obama-era guidance? Your argument would seem to imply that this is a just outcome.

5 Recommend

Lilo

Michigan

@KPO Because we all know that women never ever ever make mistakes, misinterpret events, or lie.

3 Recommend

SAH commented March 9

SAH

New York

“The Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action.”

And make no mistake, college actions for sexual assault are criminal actions, and are downright unconstitutional! To add insult to severe injury, the make up of the “court, history teachers, geology professors and the like, are INCOMPETENT to deal with and decide such serious legal matters.

I hated Trump and DeVos. But their change towards due process was “correct!” The police and real courts should handle this anyway.

Biden, in my view, seems to be ramping up identity politics. I hope my early impressions are wrong. If my impressions prove accurate, the 2022 elections could turn into a disaster for the Democrats!! Beware!!

31 Recommend

4 REPLIES

Tim commented March 9

Tim

NJMarch 9

@SAH I fear your early impressions are right. By leaning into identity politics, “hurtfulness,” cancel culture (real and imagined) and the cult of victimhood, the Democrats are going to lose half of their voters over 40 and get wiped off the electoral map in 2022.

5 Recommend

Victoria Charlton commented March 9

Victoria Charlton

NJMarch 9

Hate to tell you, but private institutions are not subject to the constitution. They can use whatever rules they wish to use.

0 Recommend

SAH commented March 9

SAH

New YorkMarch 9

@Victoria Charlton What you say may be true ..but perception equals reality in many minds.

And although you may be technically correct, most people think it’s wrong BECAUSE it makes a mockery of “due process”, one of the cornerstones of American society.

Maybe we should “re-examine” whether private institutions should be subject to the Constitution in many aspects.

2 Recommend

czarnajama

Warsaw

@Victoria Charlton The trouble is that they also receive federal funding in the form of research grants and the like, putting them under federal regulations such as Title IX if they want to continue receiving those funds.

1 Recommend

Peter commented March 9

Peter

Joppa Flats

IMHO, the schools should be cut completely out of the determination process. They are far too conflicted to properly adjudicate fairly in these matters.

44 Recommend

Doug R commented March 9

DDoug R

Michigan

Universities should play NO ROLE in investigations of sexual assaults. Sexual assaults are a crime and and investigations should be handled by county or state police departments, based on whether they are a private or state school.

You wouldn’t allow Microsoft or Google to investigate a sexual assault on their property, why would you let a university?

59 Recommend

1 REPLY

Driftwood commented March 9

Driftwood

WNC

@Doug R but they do investigate employees and whether they should continue employment based on their conduct in the workplace as per workplace policy. This isn’t a criminal investigation in universities, either. That is a separate issue. I think that perhaps this is the fundamental misunderstanding.

2 Recommend

MIMA commented March 9

MIMA

heartsny

I disliked many of Trump’s choices, but Betsy DeVos was number one on my list of dislikes.

DeVos did not even hold a college degree in education! Can anyone quite believe that?

DeVos was a religion pusher. She pushed religious vouchers for private religious schools. Many were religious schools that had no programs, no chance for disabled kids in their “educational” buildings. They never provided programs for the disabled and didn’t care.

DeVos was an anti educational promoter. She was all about religion and that was ok with those around her and certainly her appointer. And obviously he knew absolutely nothing about public education – seriously, going to a military all boys high school way away from his home? And his child going to a private elite school? What did he know, what did he care?

DeVos also was one of the first to walk out on the past president after the election last winter! Very interesting.

She came from money and never had a sprit or soul for public school kids – she had no idea about kids, scholastic achievement, scholastic advancement, and did nothing for US education for four long years.

I worked as a school nurse once, in a public Native American school. I could not imagine Betsy DeVos even knew those schools existed let alone do anything to make provisions. She was a detriment, not a leader of any means!

11 Recommend

1 REPLY

Tim commented March 9Tim

NJ

@MIMA Everything you say about DeVos is true, but it does not change the matter at hand. Even a broken clock is right twice a day, and this was one of those times for DeVos. IN any event this is not about one person. Anyone who is accused of a crime has the right to due process. Period. Obama was right about a lot of things but dead-wrong on this matter. Trump and DeVos were wrong about just about everything but they were right on this.

24 Recommend

Alison commented March 9

Alison

DC

This is a terrible idea, and I formerly prosecuted sex crimes in the Army. Accused individuals have rights too. The mindset of “all complaints are fact” and “all complaints describe a crime” when it comes to sex crime allegations is dangerous for the concept of due process; just because this is happening outside of a courtroom doesn’t mean it is less devastating.

What if this was your brother? Your son? Your father? Wouldn’t you want him to be given a chance?

54 Recommend

1 REPLY

Victoria Charlton commented March 9

Victoria Charlton

NJMarch 9

A college has every right to use whatever rules it chooses in determining who stays on campus and who does not. This is not a military tribunal nor is it a criminal one. The thing is that it should be. Colleges and universities should not be investigating a crime that takes place on its campus anymore than Google should be investigating one that takes place on theirs.

I don’t get why the government just does not butt out other than to require educational facilities to do one simple thing: call 911.

3 Recommend

R.P. commented March 9

R.P.

Bridgewater, NJ

This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?

122 Recommend

2 REPLIES

Independent Observer commented March 9

Independent Observer

Texas

@R.P. Exactly. If a charge as serious as sexual assault is levied at someone, the local police and justice system needs to be in charge of the process, not some academic admin board. This protects both the rights of the accuser and the accused, as it’s supposed to be. How anyone could think that should be “dismantled” is beyond me.

21 Recommend

Michael Browder commented March 9

Michael Browder

Chamonix, France

@R.P. Absolutely right. I hate Trump, but the accused need protection. What has happened in the past has been disgusting.

24 Recommend

R.P. commented March 9

R.P.

Bridgewater, NJ

This is one area where the Trump Administration was on the correct side of civil liberties and due process rights, and where the Biden Administration is retreating to interest-group politics. Do any of the people who want to go back to the ‘old days’ of no due process for the accused, have sons in college? Do they want them to be subject to these kangaroo courts where you have no right to question your accuser?

36 Recommend

Dave commented March 9

Dave

New Jersey

One of the few things that the Trump administration did that I fully agreed with. Leave it alone.

93 Recommend

Tim commented March 9

Tim

NJ

The DeVos rules “require colleges to hold a live hearing with cross-examination by a third party … and also require that cases be investigated under a presumption of innocence and that parties have equal access to evidence and appeals processes.”

No person in his or her right mind could be against this. If you are accused of an infraction or crime it is the very least you would expect. In their rush to appease this activist wing of their party, many of whose assertions on the issue of campus sexual assault have been greatly exaggerated or proven outright false, the Democrats are throwing one of the foundations of democracy under the bus. When the Republican Party, which by all accounts should be taking its last breath right now, crushes the Democrats in 2022, this will be one reason why.

89 Recommend

Joyce Hill commented March 9

Joyce Hill

Maryland

Why isn’t this just a police matter? Why do victims have to be subjected to a different set of rules depending on the location of the incident? I told my daughter when she first went to college; if something, God forbid, should happen, call the POLICE first then campus security.

78 Recommend

5 REPLIES

Concerned citizen commented March 9

Concerned citizen

Connecticut

@Joyce Hill Many of the behaviors under campus student conduct policies are not criminal, so the police wouldn’t be an option. For those behaviors that are criminal, students can choose to pursue a campus proceeding or a criminal process, or BOTH.

1 Recommend

Donna Gray commented March 9

Donna Gray

Louisa, Va

@Concerned citizen -Rape is a police matter!

4 Recommend

Mike commented March 9

Mike

NY

@Concerned citizen yeah but a sexual assault allegation is a criminal matter that should be viewed through an objective investigative lens that follows our laws, and not the political/PR lens of university employees.

6 Recommend

Driftwood

WNC

@Joyce Hill The police do not always listen. In my case, they refused to even take my statement. Rape kits sit untested for years. Criminal proceedings rarely result in conviction and can destroy the life of the survivor of the rape or assault. It takes great bravery to come forward and is often met with vitriol. Should the survivor have to choose to see their rapist in class everyday? And if the survivor cannot handle it, should they be the only one to face consequences and have to leave school and take on the debt? This isn’t simply philosophical- it’s costing lives as survivors are facing impossible choices. I’m not saying the solution is easy or should ever be blanket belief, but the system does not seem to work in the survivor’s favor, either.

2 Recommend

Karen                                                                                  Times Pick

New York

@Driftwood, the answer is to fix the criminal justice system, not to create a parallel campus tribunal. This ensures that *all* sexual assault victims — not just college students — receive fair and just treatment.

7 Recommend

A Thinker, Not a Chanter. commented March 9

A Thinker, Not a Chanter.

USA

“[The Trump rules] also require colleges to hold a live hearing with cross-examination by a third party and offer schools the flexibility to choose their evidentiary standard. The rules also require that cases be investigated under a presumption of innocence and that parties have equal access to evidence and appeals processes.” Among the people who praise this in criminal cases are the people who condemn this is title 9 hearings. Why? Because of the crime and who is getting accused. They discovered an easier standard under Obama in title 9 cases than in criminal courts and that is why you hear so much advocacy here: they want their venue of easier convictions.

16 Recommend

Karen commented March 9

Karen

New York

I completely support federal laws that require colleges to provide increased protections for students with regard to sexual harassment and assault. That said, I think it would be a big mistake to reinstate the Obama-era ad hoc “tribunals” to prosecute sexual assault claims. These proceedings are often conducted by college faculty and staff with no (or little) legal training, and fail to provide even the most basic due process rights to the accused, which—unsurprisingly—disproportionately impacts male students of color and the working class, who do not have the means to adequately protect themselves. While I understand that the criminal justice system has miles to go to adequately support women and men who have suffered sexual assault, creating an ersatz court system for college students is not the way to go. Let’s continue to work to improve how the criminal justice system treats sexual assault victims—to the benefit *all* victims, whether enrolled in college or not.

63 Recommend

1 REPLY

Matt commented March 9

Matt

San Francisco

@Karen “creating an ersatz court system for college students is not the way to go.” How true. And that court system, with the number of employees it entails, along with the apparatchiks who staff the broader inquisition, seriously add to the already inflated cost of tuition, in addition to the payments made to those accused who win judgements against the colleges in court. I think Obama was probably the best president in my lifetime, and I go back to Truman, but his administration’s handling of Title lX was one of its few serious errors. I hate to say it, but Trump, who was, by far, the worst president, was far more rational and fair in this matter.

10 Recommend

Frank commented March 9

Frank

Boston

And this, men and parents of sons, is why you cannot trust Democrats.

They really believe that young men do not deserve due process of law.

They want to permanently deny accused young men a college education without the basic protections afforded defendants in CIVIL litigation.

No right to see the charges.

No right to discover and gather evidence.

No right to legal counsel.

No right to question the accuser.

No right to an impartial judge or jury.

56 Recommend

1 REPLY

Technologist commented March 9

Technologist

Ft. Lauderdale

@Frank No Frank, that is not what “Democrats” want. Democrats want the due process and evidentiary rules that align with our ideal of a justice system. We don’t want a campus administration attempting to talk a young woman of her accusations if the subject is a star athlete.

I for one don’t believe the schools should be handling the cases at all. If the claim is rape, then the police should be brought in with their investigators that specialize in this area.

I can see the schools handling harassment and other non-criminal offenses that can be settled with administrative actions, but even then the regular rules of evidence, due process, and standard of guilt should be equal. DeVoss went too far. The Obama rules were too far from the other direction. We should have learned from both, so let’s get it right this time.

Rape and sexual assault have nothing to do with political parties. We both have boys and girls that should be given equality in all proceedings.

2 Recommend

RCP commented March 9

RCP

Texas

So, it’s back to the Obama inquisition on these matters? Denial of due-process to accused? What is the problem that Democrats have with fundamental fairness from college campuses to debating legislative issues? Is it that they have no winning position, no persuasive argument?

82 Recommend

2 REPLIES

s.chubin commented March 9

s.chubin

Geneva

@RCP It is important to get the balance right(.It should not be a partisan issue as masks became in your country.)

10 Recommend

J Lance commented March 9

J Lance

Chesterfield, VA

@ RCP When “courtlike tribunals and cross-examination of accusers” is written as a pejorative in this article that answers your well stated comment.

9 Recommend

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

This article was prepared with the assistance of Cynthia Garrett, Esq.

 

Categories
Campus Sexual Assault Sexual Harassment Title IX

115 Lawmakers Call for Return to Failed Campus Policy

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

115 Lawmakers Call for Return to Failed Campus Policy

WASHINGTON / March 8, 2021 – SAVE is challenging a Congressional letter that calls on the Department of Education to replace the current Title IX regulation, which took effect last year, with “key portions” of its 2011 campus sexual assault directive. Organized by Rep. Jackie Speier of California, the March 2 letter is signed by 115 Democratic members of the House of Representatives (1).

Unfortunately, the 2011 directive, also known as the “Dear Colleague Letter,” failed to achieve its primary goal of reducing campus sexual assaults. The American Association of Universities reported increases among undergraduate students in the rate of nonconsensual sexual victimization from 2015 to 2019 (Men: 1.4% increase; Women: 3.0% increase). (2)

The Obama-era policy also failed to improve the reporting of sexual misconduct:

  1. Eight years after the policy took effect, only 11% of sexual assaults were reported to campus police. In addition, only 45% of victims reported that school officials were “very likely” or “extremely likely” to take their report seriously (3).
  2. The American Association of University Women reported that 89% of American colleges received zero reports of rape incidents in 2016 (4).

SAVE has documented numerous cases in which complainants were mistreated by campus officials (5). As a result, the number of Title IX complaints to the Department of Education increased more than five-fold following issuance of the 2011 directive (6).

The 2011 policy also gave rise to a spate of false allegations. According to Brett Sokolow, president of the Association of Title IX Administrators, “Probably 40 or 50% of allegations of sexual assault are baseless.” (7) To date, over 680 lawsuits have been filed by accused students against their universities (8).

The  directive was criticized by law professors from Harvard University (9), Penn Law (10), Cornell University (11), and from numerous other schools (12). Former Supreme Court justice Ruth Bader Ginsburg also criticized campus procedures, commenting, “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” (13)

A number of organizations issued reports sharply critical of the Department of Education statement:

  • American College of Trial Lawyers (14)
  • American Association of University Professors (15)
  • National Association of Scholars (16)
  • American Bar Association Task Force (17)

These findings reveal the 2011 directive, which cost colleges many millions of dollars to implement (18), was both ineffective in curbing campus assaults, and harmful in curtailing accused students’ due process rights.

In light of these facts, SAVE urges lawmakers to speak out in support of policies that are consistent with constitutional due process guarantees, and are likely to succeed in reducing campus sexual assaults.

Links:

  1. https://speier.house.gov/_cache/files/1/b/1be77711-5eae-4bf8-bed0-dd59629db852/0D83F3D46B1ABB9DE425FBA985209850.2021-03-02dwc-title-ix-letter-to-cardona-final.pdf
  2. https://www.aau.edu/newsroom/press-releases/aau-releases-2019-survey-sexual-assault-and-misconduct
  3. https://www.aau.edu/newsroom/press-releases/aau-releases-2019-survey-sexual-assault-and-misconduct
  4. http://www.saveservices.org/2020/04/89-percent-of-colleges-reported-zero-incidents-of-rape-in-2015-2/
  5. https://www.saveservices.org/sexual-assault/victims-deserve-better/
  6. https://www2.ed.gov/about/overview/budget/budget20/justifications/z-ocr.pdf
  7. https://www.thecentersquare.com/national/legal-experts-say-bidens-pushing-ahead-to-the-obama-past-on-campus-rape-could-be/article_184d1e3a-3fc0-11eb-956d-87947675f52c.html
  8. https://www.titleixforall.com/
  9. https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html
  10. http://media.philly.com/documents/OpenLetter.pdf
  11. https://www.scribd.com/document/375274931/John-Doe-v-Cornell-Motion-of-23-Cornell-Law-Professors-to-File-Amicus-Brief-in-Support-of-Student
  12. http://www.saveservices.org/wp-content/uploads/Law-Professor-Open-Letter-May-16-2016.pdf
  13. https://www.theatlantic.com/politics/archive/2018/02/ruth-bader-ginsburg-opens-up-about-metoo-voting-rights-and-millenials/553409/
  14. http://www.abajournal.com/news/article/aba_task_force_recommends_due_process_protections_in_campus_sexual_assault
  15. https://www.actl.com/docs/default-source/default-document-library/position-statements-and-white-papers/task_force_allegations_of_sexual_violence_white_paper_final.pdf
  16. https://d28htnjz2elwuj.cloudfront.net/pdfs/7ea041e49156306ba76cb62a4f8c6c65.pdf
  17. http://www.nas.org/articles/OCRs_New_Sexual_Harassment_Guidelines_Threaten_Academic_Freedom_Due_Process
  18. https://www.nytimes.com/2016/03/30/us/colleges-beef-up-bureaucracies-to-deal-with-sexual-misconduct.html?_r=0
Categories
Law & Justice Sexual Harassment

Virginia Senate blocks strange harassment legislation, but it might still pass

By Liam Bissainthe February 9, 2021

The Virginia state senate blocked a bill that could potentially change the definition of “sexual harassment.” It would also hold even small employers liable for comments defined as either “workplace harassment” or “sexual harassment.” Employers would held liable even for conduct that occurs “outside of the workplace,” and even for conduct committed by “nonemployees” such as customers.

But the very same provisions are found in another bill passed by the Virginia House of Delegates, that is still sitting in a committee of the state senate. So the legislation could still conceivably become law.

In a 20-to-18 vote, the state senate voted on February 5 to send the first harassment bill (SB 1360) back to the Judiciary Committee, where it died on February 6. But the exact same provisions appear to be found in the second harassment bill, HB 2155, which is still alive and sitting in the General Laws committee.

Reportedly, the ladies at Richmond SHRM objected to the bill. According to a comment at the Bacon’s Rebellion blog, they were concerned that

Any offensive comment based on a protected class is potentially the basis for a claim, regardless of whether the person at whom the comment was directed files the claim or was offended.

Employees may file a claim even if they are not the victim, if the conduct occurred outside of work (arguably outside the scope of employment), and there was no harm or adverse employment action. Because sexual harassment under these bills does not have an “unwelcome” conduct standard, a third party could arguably file a claim based on mutually consensual conduct between two other people that they deem offensive.

Bystander employees may sue on his/her own and thus bring in the target of harassment even if the target wishes to remain silent and work the situation out on his/her own.”

A lawyer also raised separate concerns about the bill in articles at Bacon’s Rebellion and at CNS News. The bill states that harassment can consist of “verbal, pictorial, audio, or visual conduct.”

The bill also says “conduct may be workplace harassment regardless of whether …. the conduct occurred outside of the workplace.” But as a federal appeals court once observed, “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.” (See Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987)).

Employers may find it very difficult to enforce workplace norms outside the workplace. Telling them to regulate conduct “regardless” of where it occurs seems like overreaching. As a judge once pointed out in her ruling in dismissing a sexual harassment lawsuit, “even top level executives are entitled to make fools of themselves after work and on their own time.” (See Alvey v. Rayovac Corp. (1996)).

There may be occasional instances where conduct outside the workplace poisons the workplace, but that’s rare enough that it’s misleading to say that conduct is harassment “regardless” of where it occurs. Often, as the court noted in the Sparks case, whether conduct occurs in the workplace makes all the difference in the world.

The bill also requires employers to take “immediate and appropriate corrective action” in response to harassment among coworkers. Surely, employers should respond promptly in cases of harassment. But “immediate” action may not be possible. What if the harassment complaint is filed after work hours, or when the supervisor is absent from the worksite?

Federal courts only require “prompt and appropriate” action, for an employer to avoid a sexual harassment lawsuit. (See, e.g., Spicer v. Commonwealth of Virginia, 66 F.3d 705, 710 (4th Cir. 1995) (“prompt and adequate”); Intlekofer v. Turnage, 973 F.2d 773, 779 (9th Cir. 1992) (“prompt and appropriate”)).

“Immediate” action is not always feasible. For example, when employees are out of the office, or deaf employees need a sign-language interpreter, that may justify the employer taking a bit more time to figure out whether the accused employee is guilty, under the “prompt and appropriate” standard used by the courts — as one court made clear in overturning a jury verdict against an employer that took a while to figure out what action to take. (See Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001)).

The bill contains the following anti-employer language that may result in juries holding employers liable for conduct, even when its effect on the complainant is so trivial that the complainant could never win a harassment case under existing law:

Conduct may be workplace harassment regardless of whether (i) the complaining party is the individual being harassed; (ii) the complaining party acquiesced or otherwise submitted to or participated in the conduct; (iii) the conduct is also experienced by others outside of the protected class involved; (iv) the complaining party was able to continue carrying out the duties and responsibilities of such complaining party’s job despite the conduct; (v) the conduct caused a tangible or psychological injury; or (vi) the conduct occurred outside of the workplace.

(See proposed Va. Code § 2.2-3905(B)(9)(e)(3)).

This anti-employer language makes it seem like the conduct doesn’t need to be any big deal to the plaintiff, for the plaintiff to sue over it. Under existing law, people who sue over sexual or racial harassment, but view the conduct as “not a big deal,” lose their lawsuits. For example, a man admitted just that in his deposition, and lost his harassment lawsuit for precisely that reason. (See Newman v. Federal Express, 266 F.3d 401 (6th Cir. 2001)).

Under federal law, conduct amounts to illegal sexual harassment when it is severe or pervasive enough to create a hostile or abusive working environment for the plaintiff, from both an objective perspective (that of a reasonable person) and the subjective perspective of the plaintiff. (See Harris v. Forklift System, 510 U.S. 17 (1993); Clark County School District v. Breeden, 532 U.S. 268 (2001)). This dual requirement isn’t stated in the bill, although it doesn’t rule it out, either (it doesn’t contain words like “severe or pervasive,” although neither do some state EEO laws that are interpreted by judges as requiring “severe or pervasive” conduct for liability. Some campus sexual or racial harassment codes that banned racist or sexist speech but didn’t have language requiring that it be “severe or pervasive” were struck down as a a result, as being overly broad restrictions on free speech. See, e.g., DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)).

In comments to the Senate Finance Committee, Senator McClellan, chief sponsor of the bill, indicated that the bill incorporates existing legal standards on what is “sexual harassment.” But that claim is questionable given its text.

For example, the bill says conduct can be harassment “regardless” of whether “the complaining party is [not] the individual being harassed.” But if the complaining party isn’t being harassed, that’s a strong sign that the complaining party’s own work environment wasn’t hostile, which means she can’t sue under existing law. That’s because “the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff,” notes a federal appeals court. (See Gleason v. Mesirow Financial, 118 F.3d 1134, 1144 (7th Cir. 1997)).

The bill also says conduct can be harassment “regardless” of whether “the conduct is also experienced by others outside of the protected class involved.” But if the conduct is experienced by men and women alike, that is a sign that the conduct is not discriminatory, and is not a form of discriminatory harassment, such as sexual harassment, under existing law. Instead, the conduct may simply be a normal part of the job. For example, the California Supreme Court rejected a sexual harassment lawsuit over conduct that was not aimed at the plaintiff — sexual jokes by comedy writers that were part of the process of producing an adult-oriented sitcom — because the conduct wasn’t aimed at the plaintiff based on her sex. The conduct may have offended her, but it didn’t treat women worse than men, and sexual humor was simply a necessary part of producing an adult-oriented sitcom. (See Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006)).

The bill also doesn’t include the word “unwelcome” in its definition of sexual harassment. The Supreme Court has always said that conduct has to be “unwelcome” to be sexual harassment. Not including the word “unwelcome” in the definition of sexual harassment might lead to people suing over offensive remarks they themselves instigated (and thus objectively welcomed) or, conceivably, people suing over “welcome” but offensive relationships among their peers. Under existing law, if you instigate an exchange you can’t sue over it, such as when you say something vulgar or profane, and your co-workers respond in kind. (See Scusa v. Nestle USA, 181 F.3d 958 (8th Cir. 1998)).

Virginia Senate blocks strange harassment legislation, but it might still pass – Liberty Unyielding