Categories
Campus Sexual Assault Sexual Harassment Title IX

PR: Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Legal Experts Warn of the Perils of Campus ‘Dual-Track’ Adjudications

WASHINGTON / September 17, 2020 – One month after a historic civil rights policy took effect at colleges across the nation, legal experts are warning administrators about the legal pitfalls of “dual-track” adjudications. Dual-track adjudications are employed by colleges when students or faculty are accused of a type of sexual misconduct that falls outside the strict definitions found in the new Title IX regulation.

Yesterday, SAVE issued a report titled, “Dual Track Adjudications: Recipe for Legal Disaster.” The Commentary notes that apart from the requirements of the new federal policy, “there is another branch of government that vigorously enforces due process rights: the judiciary.” The analysis cites recent decisions by the Third, Sixth, Eighth, and Ninth Circuit Courts that make it easier for an accused student to prevail in a legal action charging the university with sex discrimination (1).

The article concludes, “While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices.”

The SAVE Commentary echoes concerns recently expressed by a number of legal experts:

Last week, Samantha Harris and Michael Allen published an editorial titled, “Universities Circumvent New Title IX Regulations.” The attorneys reveal, “Things were supposed to change in August, when the new Title IX regulations took effect, with robust free speech and due process protections. Now it appears that many campuses are fighting to ensure these protections remain illusory. It’s not that institutions aren’t changing their policies. Rather, they are doing so to comply superficially while claiming increased authority to subject students and faculty to processes that provide few, if any, of the protections that the regulations require.” (2)

In an August 24 editorial, attorney Teresa Manning voiced concerns that schools “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.” For example, Princeton University’s dual-track policy does not require in-person questioning of parties, even though legal scholars believe that live cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” (3)

Addressing the issue more broadly, legal commentator KC Johnson identifies three themes reflected in the four recent appeals court decisions: officials’ indifference to innocence, widespread procedural irregularities, and institutions that bowed to political pressures to find more accused persons guilty. In his September 15 article, Johnson warns of the specter of continued litigation: “In theory, the new federal Title IX regulations, which require colleges to use fairer procedures, will protect against the injustices identified in the recent appellate decisions. But political, legal, and university opposition to the regulations cloud their future. It may be that federal courts will need to continue to correct campus processes that too often seem indifferent to justice.” (4)

If college administrators decide to create “dual-track” adjudications, SAVE urges that these systems assure the same level of due process protections as campus Title IX adjudications.

Links:

  1. http://www.saveservices.org/2020/09/dual-track-adjudications-recipe-for-legal-disaster/
  2. https://www.nationalreview.com/2020/09/title-ix-universities-circumventing-new-rules/
  3. https://heinonline.org/HOL/LandingPage?handle=hein.journals/soulr15&div=21&id=&page=
  4. https://www.city-journal.org/biden-v-courts-title-ix
Categories
Discrimination Sexual Assault Sexual Harassment Title IX

Rep. Ben Cline Opening Statement at Hearing on Gender-Based Protections

WASHINGTON, DC/September 10, 2020 – Today, Rep. Ben Cline (R-VA), Republican Leader of the Subcommittee on Civil Rights and Human Services, offered the following opening statement, as prepared for delivery, at a subcommittee hearing to discuss gender-based protections:
 
“Prior to coming to Congress, I was proud to serve as a prosecutor of domestic violence cases to ensure justice was carried out. Additionally, during my time as a Delegate in Virginia’s General Assembly, I authored several bills to meaningfully increase protections for such victims and their families. Furthermore, while in Congress, I have worked across the aisle to introduce H.R. 6685 with Congresswoman McBath to allow funds allotted through the Family Violence Prevention Services Act to still be accessed during the pandemic. Here in Congress, our committee has created protections for pregnant women, students, and workers alike so they can live, work, and learn in environments free from discrimination. I know I speak for all my colleagues here today when I say no one should ever be denied an opportunity because of unlawful discrimination.

“That’s why my Republican colleagues and I consistently support legislation that aligns with protections defined under existing civil rights laws. These very laws are what ensure the fairness I mentioned earlier in classrooms and workplaces across the country.

“Unfortunately, the same cannot be said for my colleagues on the other side of the aisle. Democrats cherry pick who does and does not deserve protections.

“Democrats have undermined students’ rights and fundamental fairness under Title IX of the Education Amendments of 1972. In 2011, the Obama administration issued guidance that created significant controversy and confusion. Many criticized the guidance for undermining due process rights for involved parties and for denying public review and comment from affected stakeholders. In fact, multiple court cases have struck down campus procedures that resulted from the guidance.

“The Trump administration addressed this past wrongdoing by taking over 124,000 public comments into consideration while drafting a rule that defines the responsibilities of institutions to respond to allegations of sexual harassment, including sexual assault, under Title IX.

“Many Democrats have been critical of the Education Department’s updated Title IX rule despite the fact that the rule is rooted in our deepest, time-tested legal traditions. It requires schools to take all allegations of sexual harassment, including sexual assault, seriously, and support and protect survivors during every step of the process.

“This rule will help ensure that all students can pursue education free from discrimination, harassment, and sexual violence, and we owe it to survivors to ensure that clear and fair procedures are in place to respond to sexual violence. The Department of Education’s Title IX rule delivers on this front.

“Democrats have also consistently tried to roll back protections that allow religious organizations to operate in accordance with their sincerely held religious beliefs.

“In fact, Democrats slammed a proposed rule announced last year by the Department of Labor (DOL) to protect religious liberty. Religious organizations have been discouraged from seeking federal contracts because of uncertainty surrounding the requirements for religious organizations. DOL’s proposed rule clarifies the protections given to religious organizations that contract with the federal government. DOL rightly considered recent Supreme Court decisions regarding the religious freedom of employers, which affirmed the limitations on the government to infringe on the free exercise of religion. Not only does this proposed rule protect religious liberty, it also benefits both the contracting system and taxpayers by encouraging additional qualified organizations to bid for contracts, which will increase competition and provide needed goods and services that may otherwise not be available.

“Bottom line, all Americans deserve to learn and work in an environment free from discrimination based on their sex or religion. Committee Republicans have and will continue to advocate for policies that allow students to learn and employees to work in environments free from discrimination.

“While I look forward to the testimony from our witnesses, I’d like to point out that my Democrat colleagues only allowed Republicans to invite one witness to cover a very broad set of issues. Unfortunately, this structure will limit the Subcommittee’s ability to have a robust discussion today on how to best ensure Americans can pursue an education and a career in positive environments.”

https://republicans-edlabor.house.gov/news/documentsingle.aspx?DocumentID=407043

Categories
Campus Sexual Assault Sexual Harassment Title IX Equity Project Training

PR: Many Universities Not Compliant with New Title IX Requirement to Post Training Materials

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Many Universities Not Compliant with New Title IX Requirement to Post Training Materials 

WASHINGTON / September 8, 2020 – A review of the websites of 50 colleges and universities across the nation reveals that 65% are out of compliance with the Title IX regulation’s requirement to post all Title IX training materials. This past week, SAVE filed complaints with Office for Civil Rights against several of these non-compliant schools.

The Title IX implementing regulation, 34 CFR 106, has new provisions, which went into effect on August 14, 2020, that require the posting of Title IX training materials. The regulation calls on schools to post on their websites, “All materials used to train Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process.” §106.45(b)(10)(D)

On May 18, the Office for Civil Rights issued detailed guidance on the topic: https://www2.ed.gov/about/offices/list/ocr/blog/20200518.html. The guidance states, “All materials used to train Title IX personnel…Must be publicly available on the school’s website.” [emphasis in the original].

The guidance goes on to explain:

“Section 106.45(b)(10)(D) does not permit a school to choose whether to post the training materials or offer a public inspection option. Rather, if a school has a website, the school must post the training materials on its website.

  • A school must post on its website: “All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.” Posting anything less than “all materials” on the website in insufficient. Accordingly, merely listing topics covered by the school’s training of Title IX personnel, or merely summarizing such training materials is not the same as posting “all materials.” [emphasis in the original]

Many institutions, such as Princeton University (1), posted training materials geared toward students and faculty, or webinars provided by the Department of Education, but did not post the training materials used for Title IX staff. The federal regulation states that all materials used to train Title IX personnel must be posted. Training materials that are protected by a student ID number or password are also out of compliance, as the federal regulation states the material must be made publicly available.

In contrast, many schools are in compliance with the federal regulation’s posting requirement. Examples of such schools are Amherst College (2) and the University of Colorado-Boulder (3). The University of Vermont even posted a YouTube video of the actual training program that their staff attended (4).

SAVE has filed complaints with the Office for Civil Rights against 10 schools that are out of compliance with the federal regulation. More OCR complaints will be filed as SAVE continues its review of school websites.

The SAVE Title IX Equity Project has found that Title IX violations are widespread at schools across the country. These violations pertain to sex-specific scholarships, sex-specific programs, and due process procedures in campus adjudications. The number of open OCR investigations of such violations currently exceeds 200 cases, and continues to increase (5).

Citations:

  1. https://sexualmisconduct.princeton.edu/reports
  2. https://www.amherst.edu/offices/title-ix/title-ix-policy
  3. https://www.colorado.edu/oiec/policies
  4. https://www.uvm.edu/aaeo/title-9-sexual-misconduct
  5. http://www.saveservices.org/equity/ocr-investigations/
Categories
Campus Sexual Assault Sexual Harassment Title IX Victims

PR: Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Survivors, Accused Students, and Faculty Bid ‘Farewell’ to Campus Kangaroo Courts; Welcome New Title IX Regulation

WASHINGTON / August 18, 2020 – Sexual assault survivors, accused students, and faculty members are welcoming the new Title IX regulation, which took effect this past Friday on college campuses across the nation. Title IX is the federal law that bans sex discrimination at schools receiving federal funds. The new regulation replaces a 2011 Department of Education policy that sparked national controversy, hundreds of lawsuits, and thousands of federal complaints.

Sexual assault survivors are applauding the new regulation because it provides a detailed and legally enforceable framework for colleges to investigate and adjudicate allegations of sexual assault. Under the old policy, some victims reported the ‘brush-off’ treatment they received was more traumatic than the original assault (1).

Many of these victims complained to the federal Office for Civil Rights. As a result, the number of sex discrimination complaints increased over four-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). (2)  Male victims of sexual assault are anticipating that their complaints also will taken more seriously by campus administrators.

Accused students will benefit from a restoration of fundamental due process rights, which include the right to an impartial investigation and an unbiased adjudication. Over the years, hundreds of wrongfully accused students have sued their universities. On July 29, for example, a federal appeals court reversed a lower court decision and reinstated sex discrimination charges brought by David Schwake against Arizona State University (3). The Schwake decision brings the number of judicial decisions in favor of students accused of sexual misconduct to 184. (4)

Faculty members, who found their free speech rights curtailed by expansive definitions of sexual assault, welcomed the new Rule, as well. The National Association of Scholars decried how faculty members had been “denied the chance to respond to complaints, the right to confront and question witnesses, and even the right to be presumed innocent.” (5)

On August 9, Judge John Koeltl issued a ruling that allowed the regulation to be implemented as planned on August 14. Highlighting the long-awaited improvements for all parties, the Judge noted the regulations will “benefit both complainants and respondents by providing procedural guidance for grievance procedures,” and promised complainants “greater assurance” that decisions “will not be overturned because the process did not comply with due process.” (6)

The new Rule has been praised by a wide range of stakeholders, including the Independent Women’s Forum (7), National Association of  Criminal Defense Attorneys (8), Harvard law professor Jeannie Suk Gersen (9), former ACLU president Nadine Strossen (10), former Virginia governor Douglas Wilder (11), and others (12).

Staci Sleigh-Layman, Title IX Coordinator at Central Washington University, explains, “These new changes give a lot of credibility and due process and equal kind of attention to the person accused as well as the person coming forward… they put in place a process that seeks to provide due process for both sides.” (13)

Links:

  1. http://www.saveservices.org/sexual-assault/victims-deserve-better/
  2. https://www2.ed.gov/about/overview/budget/budget20/justifications/z-ocr.pdf
  3. https://www.businessinsurance.com/article/20200730/NEWS06/912335881/Man%E2%80%99s-Title-IX-case-against-Arizona-State-University-reinstated#
  4. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
  5. https://www.nas.org/blogs/statement/the-new-title-ix-rules-make-it-to-the-finish-line
  6. https://kcjohnson.files.wordpress.com/2020/08/nys-pi-ruling.pdf
  7. https://www.iwf.org/2020/05/06/iwf-applauds-new-title-ix-regulations-as-fair-and-balanced/
  8. https://www.nacdl.org/newsrelease/NewTitleIXRegulationsDueProcess
  9. https://www.chronicle.com/article/The-Sex-Bureaucracy-Meets-the/248849
  10. https://ricochet.com/podcast/q-and-a/nadine-strossen-the-aclu-and-betsy-devos/
  11. https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html
  12. http://www.saveservices.org/2020/08/numerous-groups-and-individuals-applaud-new-title-ix-regulation/
  13. https://cwuobserver.com/15452/news/title-ix-changes-will-overhaul-sexual-assault-policy-at-cwu/
Categories
Campus Civil Rights False Allegations Sexual Assault Sexual Harassment Victims

The New Title IX Regulation: Historic Civil Rights Victory

“Victory belongs to those that believe in it the most and believe in it the longest.” – Randall Wallace

It is not common in one’s lifetime to experience a Civil Rights victory as historical as the one we celebrate today.

Today, August 14, 2020, the new Title IX regulation implementing rules for sexual harassment goes into effect at schools across America.  SAVE celebrates this victory for our nation, our students, and faculty, many of whom have been subjected to unfair campus disciplinary hearings over the past nine years.

Since 2011, when the controversial Dear Colleague Letter on sexual violence was released, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with “expulsion” or “suspension”, and countless professors have been fired or censured.  There is no limit to the trauma and emotional abuse these persons have experienced.

Many of these persons complained. As a result, the Department of Education reported that following release of the DCL, the number of Title IX complaints to the OCR increased nearly 5-fold, from 17,724 (2000-2010) to 80,739 (2011-2020).

Today we turn the page. 

Margaret Thatcher famously said, “You may have to fight a battle more than once to win it.”  Secretary of Education Betsy DeVos, her staff, and individual civil rights advocates and groups, well understand the numerous battles that were fought to get to where we are today. Let’s highlight some of these efforts:

2011-2013:

2014-2016:

  • The Department of Justice reported the annual rate of sexual assault among college age females was 1/1000 women, refuting the widely disseminated one-in-five number.
  • Title IX for All was established, which offers a Database of OCR Resolution Letters and a Legal Database of lawsuits against universities.
  • A group of Harvard University Law Professors issued the statement, Rethink Harvard’s Sexual Harassment Policy.
  • A group of Penn Law faculty members issued their Open Letter, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities
  • The American Association of University Professors issued a report, The History, Uses, and Abuses of Title IX
  • Professors from around the country issued Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault
  • SAVE sent a letter calling on Congress to Rescind and Replace the Dear Colleague Letter (April 4), issued a Special Report, “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases;” and held meetings with staffers in 60 offices in the Senate and House of Representatives to discuss problems with the OCR policy. Over subsequent years, SAVE representatives would hold over 1,000 meetings with legislative staffers.
  • 2,239 articles and editorials were published critical of the OCR policy.

2017-2019:

2020:

  • On May 6, 2020 the Department of Education issued its final rule.
  • Four lawsuits were filed opposing the Rule, and amicus briefs were filed by SAVE, FACE, and FIRE.
    • Attorneys General lawsuit (Request for Preliminary Injunction denied on 8/12/20)
    • ACLU lawsuit (Pending)
    • National Women’s Law Center lawsuit (Pending)
    • State of New York lawsuit (Request for Preliminary Injunction denied on 8/9/20)

Today, August 14, 2020 the Final Rule is being implemented on college campuses and K-12 schools across America.

This has been an incredible journey ending in a momentous victory, but one that is not over.  The letter of the law was penned by our U.S. Department of Education, and now the spirit of the law must be carried out to ensure our students and faculty receive every protection the Title IX law provides.

Categories
Campus Discrimination Due Process False Allegations Rape-Culture Hysteria Sexual Assault Sexual Harassment Title IX Victims Violence

UNC Wants SCOTUS to Review Ruling Mandating Release of Sexual Assault Sanctions

Updated August 8, 2020

 — The University of North Carolina at Chapel Hill intends to ask the United States Supreme Court to review a 4-3 decision by the Supreme Court of North Carolina that ordered the school to release the names of students found responsible and sanctioned for sexual misconduct.

After a nearly four-year legal fight, UNC released a list of 15 names in response to a request for all sanctions issued for sexual misconduct since 2007.

The release of the records comes three months after the state Supreme Court sided with a coalition of North Carolina media organizations that sued the university after it denied a 2016 public records request for the information. The coalition includes Capitol Broadcasting Co., WRAL’s parent company, as well as UNC-Chapel Hill’s student newspaper, The Daily Tar Heel.

“We, along with many advocates for  survivors  of sexual assault and interpersonal violence, still believe the release of these records will inevitably lead to an increased risk of the identification of  survivors  and key witnesses and  could discourage others from participating in the Title IX process,” said Joel Curran, vice chancellor of University Communications.

“Universities should not be forced to release student records that could identify sexual assault  survivors,” Curran said.

Annie Clark, a former student who has spent seven years advocating for more transparency about sexual assaults on campus, says the release of the names is a step in the right direction.

“We have a lot of survivor advocates and survivors themselves who want these names released, who want to have that vindication,” Clark said. “But you also have a lot of folks who don’t want that, who feel like, if their perpetrator’s or alleged perpetrator’s name is released, that it puts them in danger.”

Clark was one of five women who filed a complaint with the U.S. Department of Education in 2013 accusing UNC-Chapel Hill of underreporting sexual assault cases for 2010 in an annual report to the federal government on campus crime. It also alleged that campus officials allowed a hostile environment for students reporting sexual assault.

“It is very surprising that, over the course of years, that there are only 15 people who have been found responsible that the university released,” Clark said. “What we know is that one in four or one in five women, depending on the statistics used, are sexually assaulted before they graduate, drop out or leave college in another way.”

Clark wants UNC-Chapel Hill and other universities to release even more information, including how many total assaults are reported, how many are investigated and how many result in sanctions.

“There is a lot further to go,” she said. “I think we need to look beyond this one story of releasing names and look more towards why are people still doing, why are people are still getting away with and where are those aggregate numbers and where are people falling through the cracks.”

On UNC-Chapel Hill’s website for its Equal Opportunity Compliance office, sexual assault victims are encouraged to report criminal activity to law enforcement; however, accusers can choose to pursue a case through a university process that’s been kept completely confidential.

As for its internal process, Curran said, “The University’s Title IX policy and process are mandated by the federal government and are separate and distinct from any criminal process.”

“Sanctions are tailored to the unique facts and circumstances of each report, and the University’s Equal Opportunity and Compliance Office investigators and hearing panelists consider a variety of factors when determining the appropriate sanction,” said Leslie Minton, associate director of media relations. “Those factors are listed in the procedures associated with the Policy on Prohibited Discrimination, Harassment and Related Misconduct. This is an educational process focused on maximizing equal access to educational programs and activities and the safety and well-being of our students and campus community.

WRAL News has a team of reporters gathering more information on the students named and intends to share more information.

Source: https://www.wral.com/unc-wants-scotus-to-review-ruling-mandating-release-of-sexual-assault-sanctions/19225371/

Categories
Campus Investigations Sexual Assault Sexual Harassment Title IX Trauma Informed

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

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

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

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

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

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

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

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

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

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

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

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

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

Links:

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

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

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

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

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

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

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

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

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

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

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

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

Citations:

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

 

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

Categories
Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

Supreme Court Asked to Review Title IX ‘Circuit Split’

Former Michigan State University students have asked the U.S. Supreme Court to review an appellate court’s December 2019 decision in their case against the university, in which a judge delivered a precedent-setting and unfavorable decision for victims of sexual misconduct.

The petition to the Supreme Court, made by Emily Kollaritsch and other women who say they were raped by the same male student while attending Michigan State, asks the justices to solve a “circuit split” between appellate courts across the country. Several courts disagree on how colleges should be held liable when sexual harassment complainants experience further harm after filing complaints. The petition calls on the justices to decide whether colleges can be held responsible for failing to address students’ “vulnerability” to sexual misconduct, or if preventable sexual misconduct must actually occur for colleges to be found in violation of Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination at federally funded institutions.

The case is centered on Kollaritsch and argues that Michigan State failed to protect her from being further harassed by a male student after the university found him responsible for sexually harassing her in 2011. The university issued a no-contact order and Kollaritsch said the male student broke it, but Michigan State could not prove he had. Kollaritsch also said she suffered panic attacks as a result of seeing the male student on campus, which she said indicated that Michigan State was “deliberately indifferent” to her sexual harassment. She said she suffered further harm by the male students’ presence on campus.

The 2019 opinion issued in the United States Sixth Circuit Court of Appeals said Michigan State could not be held liable because Kollaritsch could only prove she experienced mental health challenges from seeing the male student and not “further actionable sexual harassment” by him. The case was sent back to the district court for dismissal.

The Sixth Circuit opinion deepened a split in how different appellate courts interpret a 1999 Supreme Court case that found colleges can be held liable for “deliberate indifference” to sexual misconduct on campus under Title IX. Some circuit courts maintain that if a victimized student is merely vulnerable to harassment, even if it does not actually occur, then the institution is failing to provide an equal educational environment and could be held liable. The Eighth and Sixth Circuits hold that alleged victims must “prove additional, post-notice sexual harassment in order to state a claim for damages under Title IX,” according to Kollaritsch’s petition.

The petition was filed on July 2. On July 23, the court approved an extension requested by Michigan State to move the deadline for when the university’s lawyers must file a response. Michigan State will respond to the petition by Sept. 9, the case’s docket says.

Source: https://www.insidehighered.com/quicktakes/2020/07/24/supreme-court-asked-review-title-ix-%E2%80%98circuit-split%E2%80%99

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Theological articles he shared were ‘ideologically problematic’ for accuser

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘China-man’ was an ‘inside joke’

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

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

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

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

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

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

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

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

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