Category: Title IX

Categories
Campus Department of Education Due Process Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX

16 New York Colleges Now Listed in the Kangaroo-Court ‘Hall of Shame.’ Syracuse U. is Worst Offender.

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

16 New York Colleges Now Listed in the Kangaroo-Court ‘Hall of Shame.’ Syracuse U. is Worst Offender.

WASHINGTON / December 8, 2021 – Judges have issued 31 rulings in recent years against 16 New York state colleges and universities. These decisions reveal widespread due process deficiencies for sexual harassment cases, which are typically handled by campus Title IX offices.

By far the worst offender is Syracuse University, with a total of six adverse judicial decisions to date. The school’s motto, translated from the Latin, states, “Knowledge crowns those who seek her.” In contrast, a Kangaroo Court cares more about reaching a “guilty” verdict (1), rather than engaging in an impartial search for knowledge and truth.

Unfortunately, many New York schools have ignored the most rudimentary notions of fairness. As a result, judges have handed down more decisions against New York colleges than schools in any other state, including states with larger populations.

Judges have ruled the following New York institutions violated key due process, Title IX, and/or contractual obligations:

  • Syracuse University – 6 decisions
  • Columbia University – 3 decisions
  • Cornell University – 3 decisions
  • SUNY Purchase – 3 decisions
  • Colgate University – 2 decisions
  • RPI – 2 decisions
  • Hobart and William Smith – 2 decisions
  • SUNY Stony Brook – 2 decisions
  • Hofstra University – 1 decision
  • Hamilton College – 1 decision
  • New York University – 1 decision
  • Skidmore College – 1 decision
  • John Fisher College – 1 decision
  • SUNY Albany – 1 decision
  • SUNY Cortland – 1 decision
  • United States Merchant Marine Academy – 1 decision

A complete listing of the case citations is available online (2).

The campus adjudications that are challenged in court represent a small subset of the total number of Title IX cases, suggesting that due process violations may be endemic at New York institutions. Due process includes timely notification of allegations, an impartial investigation, fair hearing, the right to appeal, and the presumption of innocence.

In 2015, New York enacted its “Enough is Enough” law that mandated a uniform definition of affirmative consent (3). The law did not address the due process rights of the accused.

More information about these and other judicial decisions is available in SAVE’s Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations (4).

Citations:

  1. https://www.merriam-webster.com/dictionary/kangaroo%20court
  2. https://www.saveservices.org/2021/11/new-york-national-champion-of-campus-kangaroo-courts/
  3. https://opdv.ny.gov/enough-enough
  4. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
Categories
Campus Sexual Assault Sexual Harassment Title IX

New York: National Champion of Campus Kangaroo Courts

New York: National Champion of Campus Kangaroo Courts

SAVE

November 29, 2021

Over the past decade, over 200 judicial decisions have been handed down against colleges across the country for violations of the rights of students accused of sexual misconduct. According to SAVE’s Analysis of Judicial Decisions,[1] these cases involve a broad range of due process violations:

  • Bias Towards Complainant: 34 judicial decisions
  • Guilt-Presuming Investigations: 33 decisions
  • Inadequate Cross Examination: 31 decisions
  • Institutional Sex Bias: 27 decisions
  • Lack of Proper Notice: 27 decisions
  • Failure to Give Respondent Access to Evidence: 23 decisions
  • Flawed Evaluation of Evidence: 20 decisions

Further analysis reveals that the state with the largest number of decisions against institutions of higher education is New York. Since 2013, trial and appellate courts have handed down 31 decisions against 16 New York schools.

The following schools were the losing party – the citations for all decisions are shown at the end of this article:

  1. Syracuse University – 6 decisions
  2. Columbia University – 3 decisions
  3. Cornell University – 3 decisions
  4. SUNY Purchase – 3 decisions
  5. Colgate University – 2 decisions
  6. RPI – 2 decisions
  7. Hobart and William Smith – 2 decisions
  8. SUNY Stony Brook – 2 decisions
  9. Hofstra University – 1 decision
  10. Hamilton College – 1 decision
  11. New York University – 1 decision
  12. Skidmore College – 1 decision
  13. John Fisher College – 1 decision
  14. SUNY Albany – 1 decision
  15. SUNY Cortland – 1 decision
  16. United States Merchant Marine Academy – 1 decision

In general, these decisions did not turn on subtle interpretations of nuanced legal precepts. Rather, they were based on a judicial recognition that colleges are failing to observe the most fundamental notions of fairness. In many cases, the bias was so flagrant as to suggest that sex bias was the motivating factor. This represents a violation of the federal Title IX law, which is expressly designed to ban discrimination on the basis of sex.

A Kangaroo Court is defined as “an unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as guilty.” These 31 decisions reveal that New York State now holds the dubious honor of being the national champion of Campus Kangaroo Courts.

The greatest embarrassment falls upon Syracuse University, with a total of six adverse judicial decisions, revealing a broad range of due process failings. The school’s motto, translated from the Latin, states, “Knowledge crowns those who seek her.” By definition, a Kangaroo Court cares more about reaching a “guilty” verdict than engaging in an impartial search for knowledge and truth.

One wonders whether SU administrators appreciate the irony.

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

Judicial Decisions Against New York Schools, 2013 – 2021

Name of College Number of Decisions Public or

Private

  

Case Citations (in reverse chronological order)
 

Syracuse University

  

 6

  

Private

 Fraternity of Alpha Chi Rho, Inc. v. Syracuse University, 141 N.Y.S.3d 296 (N.Y. Sup. Ct. Mar. 10, 2021)

Doe v. Syracuse University, 457 F. Supp. 3d 178 (N.D.N.Y. Apr. 30, 2020)

Doe v. Syracuse University., 440 F. Supp. 3d 158, 168 (N.D.N.Y. Feb. 21, 2020)

Doe v. Syracuse University, No. 5:18-CV-377, 2019 WL 2021026 (N.D.N.Y. May 8, 2019)

Noakes v. Syracuse University, No. 5:18-cv-00043-TJM-ML (N.D.N.Y. Feb. 26, 2019)

Doe v. Syracuse University, 341 F. Supp. 3d 125, 138 (N.D.N.Y. Sep. 16, 2018)
Columbia University  3 Private Doe v. Columbia University, Case 1:20-cv-06770-GHW (S.D.N.Y. Aug 1, 2021)

Feibleman v. Trustees of Columbia University in City of New York, No. 19-CV-4327 (VEC), 2020WL 882429 (S.D.N.Y. Feb. 24, 2020)

Doe v. Columbia University, 831 F.3d 46 (2d Cir. July 29, 2016)
Cornell University  3 Private Matter of Doe v. Cornell University, EF2016-0192. 2017 NY Slip Op 30142(U) (N.Y. Sup. Ct. Jan. 20, 2017)

Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016)

Prasad v. Cornell Univ., N.D.N.Y. No. 5:15-CV-322, 2016 WL 3212079 (N.D.N.Y. Feb. 24, 2016)
State University of New York at Purchase 3 Public Matter of Doe v. Purchase Coll. State Univ. of N.Y., 192 A.D.3d 1100, 1103 (N.Y. App. Div. Mar. 31, 2021)

Doherty v. Bice, No. 18-CV-10898 (NSR), 2020 WL 5548790 (S.D.N.Y. Sept. 16, 2020)

Bursch v. Purchase Coll. of State Univ. of New York, 125 N.E.3d 830 (N.Y. June 6, 2019)
Colgate University  2 Private Doe v. Colgate Univ., 457 F. Supp. 3d 164 (N.D.N.Y. Apr. 30, 2020)

Faiaz v. Colgate Univ., 64 F. Supp 3d 336, 341 (N.D.N.Y. Nov. 24, 2014)
Rensselaer Polytechnic Institute 2 Private Doe v. Rensselaer Polytechnic Inst., No. 1:20-CV-1185, 2020 WL 6118492 (N.D.N.Y. Oct. 16, 2020)

In the Matter of John Doe v. Rensselaer Polytechnic Institute, No. 254952 (N.Y. Sup. Ct. Nov. 6, 2017)
Hobart & William Smith Colleges 2 Private Doe v. Hobart and William Smith Colleges, 6:20-cv-06338 EAW (W.D.N.Y. June 23, 2021)

Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017)
State University of New York at Stony Brook 2 Public Doe v. Haas, 427 F. Supp. 3d 336 (E.D.N.Y. Dec. 9, 2019)

Velez-Santiago v. State University of New York at Stony Brook, 170 A.D.3d 1182, 1183 (N.Y. App. Div. Mar. 27, 2019)
Hofstra University 1 Private Matter of Hall v. Hofstra University, 101 N.Y.S.3d 699 (N.Y. Sup. Ct. Apr. 3, 2018)
Hamilton College 1 Private Matter of A.E. v. Hamilton College, 173 A.D.3d 1753 (N.Y. Ct, App. June 14, 2019)
New York University 1 Private Doe v. New York University, No. 1:20-cv-01343-GHW, 2021 U.S. Dist. LEXIS 62985 (S.D.N.Y. Mar. 31, 2021)
Skidmore College 1 Private Doe v. Skidmore College, 59 N.Y.S.3d 509 (N.Y. App. Div. July 13, 2017)
St. John Fisher College 1 Private Bisimwa v. St. John Fisher College, et al., E2019005959 (N.Y. Sup. Ct. Nov. 20, 2019)
State University of New York at Albany

 

 1 Public Alexander M. v. Cleary (SUNY-Albany), 188 A.D.3d 1471, 1476 (N.Y. App. Div. Nov. 25, 2020)
State University of New York at Cortland

 

 1 Public Boyd v. State Univ. of New York at Cortland, 973 N.Y.S.2d 413, 415-6 (N.Y. App. Div. Oct. 17, 2013)
United States Merchant Marine Academy

 

 1 Service Academy Culiver v. U.S., No. 2:17-cv-03514-JS-SIL, Document 48 (E.D.N.Y. July 6, 2017)

Citation:

[1] https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/

Categories
Campus Office for Civil Rights Press Release Sexual Assault Sexual Harassment Title IX

Newspapers, Commentators, and Organizations Give the ‘Thumbs Down’ to Catherine Lhamon

PRESS RELEASE

Email: info@saveservices.org

Newspapers, Commentators, and Organizations Give the ‘Thumbs Down’ to Catherine Lhamon

WASHINGTON / October 13, 2021 – A YouGov survey of the American public found that 68-80% of Americans — Democrats, Republicans, and Independents — support campus due process. https://www.saveservices.org/sexual-assault/opinion-polls/ Accordingly, a growing number of newspapers, commentators, and organizations has come out in opposition to the nomination of Catherine Lhamon to lead the Department of Education’s Office for Civil Rights.

During the July 13 HELP Committee hearing, Lhamon repeatedly side-stepped direct questions whether she believed in basic due process protections. She also admitted that she rejects the presumption of innocence, instead saying that Title IX adjudicators “should be open to the possibility” that the accused student is not guilty (https://www.saveservices.org/2021/07/ocr-nominee-catherine-lhamon-repeatedly-side-steps-questions-about-campus-due-process/). As a result, Lhamon failed to win approval from a majority of HELP Committee members. https://www.insidehighered.com/quicktakes/2021/08/04/lhamon-nomination-ocr-stalled-tie-vote-committee

Three media outlets, 35 commentators, and 12 non-profit groups — both liberal and conservative – have come out in opposition to the Lhamon nomination, often expressing their concerns in strong language:

Media Outlets

Commentators

Over 35 editorials by liberal and conservative commentators have been written in opposition to the nomination. https://www.saveservices.org/2021/08/pr-growing-opposition-both-liberal-and-conservative-to-the-nomination-of-catherine-lhamon/ and https://www.saveservices.org/2021/07/presumed-guilty-catherine-lhamon-cannot-be-entrusted-with-the-job-of-enforcing-anti-discrimination-rules-in-colleges/

Organizations

  1. American Enterprise Institute (https://www.aei.org/education/bidens-office-for-civil-rights-nominee-refuses-to-condemn-racial-discrimination/ )
  2. Center for Urban Renewal and Education (https://curepolicy.org/press/cure-policy-calls-for-senators-to-vote-against-nomination-of-catherine-lhamon/)
  3. Equality for Boys and Men (https://equalityforboysandmen.org/ )
  4. Families Advocating for Campus Equality (https://www.facecampusequality.org/s/FACE-OPPOSITION-TO-LHAMON-5-20-21-FINAL.pdf)
  5. Family Research Council (https://www.frcblog.com/2021/08/will-schumer-go-all-way-bidens-ed-nominee-catherine-lhamon/ )
  6. Foundation for Individual Rights in Education (https://www.thefire.org/catherine-lhamon-still-believes-the-title-ix-regs-allow-students-to-rape-with-impunity/)
  7. Independent Women’s Law Center and Independent Women’s Voice (https://www.iwv.org/2021/10/bidens-pick-for-title-ix-czar-catherine-lhamon-poses-serious-threat-to-civil-liberties/ )
  8. National Association for Scholars (https://www.nas.org/blogs/article/lhamon-wobbles-on-presumption-of-innocence-undermining-confidence-that-she-can-be-fair)
  9. National Coalition For Men Carolinas (https://www.ncfmcarolinas.com/ )
  10. Palm Beach Freedom Institute (https://amgreatness.com/2021/06/01/catherine-lhamon-and-the-coming-title-ix-nightmare/ )
  11. SAVE (https://www.saveservices.org/2021/07/presumed-guilty-catherine-lhamon-cannot-be-entrusted-with-the-job-of-enforcing-anti-discrimination-rules-in-colleges/)
  12. Title IX for All (https://titleixforall.com/today-and-tomorrow-email-u-s-senators-to-oppose-catherine-lhamons-nomination/)

“Should Catherine Lhamon be confirmed, we are likely to see the resurrection of college sex tribunals with all the procedural fairness of the Salem Witch Trials,“ according to Independent Women’s Law Center director Jennifer Braceras.

SAVE urges all senators to vigorously oppose the nomination of Catherine Lhamon.

Categories
Campus Sexual Assault Sexual Harassment Title IX

‘Take Responsibility Act’ Would Upend Long-Standing Supreme Court Decisions, Dramatically Increasing University Liability Risk

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

‘Take Responsibility Act’ Would Upend Long-Standing Supreme Court Decisions, Dramatically Increasing University Liability Risk

WASHINGTON / October 11, 2021 – Rep. Debbie Dingell (D-MI) recently introduced H.R. 5396 (1), a bill that would substantially increase universities’ risk of being targeted in Title IX lawsuits. The bill would remove the “actual notice” standard for Title IX claims, and provide a private right of action for alleged violations of Title IX regulations. These two changes would revolutionize how Title IX cases are handled on college campuses.

First, Section 3(a) of H.R. 5396 would abolish the “actual notice” standard for deliberate indifference of Title IX claims. “Deliberate indifference” claims are those filed against schools by persons who claim they are victims of sexual harassment or sexual assault where the university failed to act in response to the allegation.

Currently, such claims are governed by the standard set forth by the Supreme Court in Gebser v. Lago Vista Independent School District (2), and Davis Next Friend LaShonda D. v. Monroe City Board of Education (3). These cases established the same standard for faculty-on-student and student-on-student claims, respectively. For a plaintiff to succeed, he or she must show that the school had “actual notice” of the harassment, meaning that “an official who at a minimum has authority to address the alleged discrimination… has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” (4). In addition, the plaintiff must prove that the harassment was “so severe, pervasive, and objectively offensive that it… deprive[d] the victim of access to the educational opportunities.” (5).

Rep. Dingell’s bill would overrule these Supreme Court cases and establish a much lower standard. Under H.R. 5396, Title IX plaintiffs could use a negligence standard, which would allow them to prevail if they could merely show that the school “should have known” about the harassment. This bucks the Supreme Court’s reasoning that such a standard would unfairly punish schools for actions of third parties of which the school was unaware (6). Were this bill to become law, schools could expect a flood of litigation from alleged victims who may not have even filed complaints at their respective schools, because the school need not know about the harassment to be liable.

Second, the changes wrought by the bill’s Section 3(b) would be even more profound. This section would provide a private right of action to all Title IX plaintiffs (not just victim-plaintiffs) for violations of federal Title IX regulations.  As it stands now, victims of campus sex discrimination are required to prove discrimination in court, under the appropriate Title IX theories. Under H.R. 5396, a student could prevail if he or she shows discrimination, or that Title IX regulations were violated.

For example, the current Title IX regulations require “notice of the allegations of sexual harassment potentially constituting sexual harassment.” (7) Under the current Title IX regime, a plaintiff cannot sue if a school fails to provide adequate notice (unless he argues that the failure was motivated by sex-bias); rather, he will have to file a complaint with the Office for Civil Rights and hope that the Executive Branch enforces its regulations. Under the Dingell bill, by contrast, the plaintiff could simply show the school failed to provide adequate notice, and that failure in itself would be sufficient to show a violation of Title IX.

The effects would be immense. Whereas currently OCR could decline to pursue claims it received, under this bill every student effectively would become a citizen enforcement agency empowered to enforce federal regulations.

If this bill were to become law, schools could be held liable for harassment they did not know occurred, and for any failure to strictly abide by federal regulations. It is unclear whether sexual harassment accusers or respondents would be more likely to take advantage of these changes. But there is little doubt that if enacted into law, H.R. 5396 would provide an array of opportunities for students searching for creative strategies to cover their higher education expenses.

Citations:

  1. https://www.congress.gov/bill/117th-congress/house-bill/5396?q=%7B%22search%22%3A%5B%22H.R.+5396%22%2C%22H.R.%22%2C%225396%22%5D%7D&s=1&r=2
  2. 524 U.S. 274 (1998).
  3. 526 U.S. 629 (1999).
  4. Gebser, 524 U.S. at 290.
  5. Davis, 526 U.S. at 650.
  6. Davis, 526 U.S. at 642.
  7. Section 106.45(b)(2)(i)(B).
Categories
Campus Sexual Assault Sexual Harassment Title IX

Know Your IX: ‘I’m angry, I’m disappointed’

Know Your IX: ‘I’m angry, I’m disappointed’

October 6, 2021

This morning was not what I expected. Our team had a meeting scheduled at the Department of Education with Acting Assistant Secretary Suzanne Goldberg and Deputy Secretary Cindy Marten. We were coming with more than 55,000 signatures on a petition demanding the Department of Education take action to protect survivors. I’m not naive. I knew they were resistant. But we came to the table hopeful that we could meet a compromise.

Instead, the Biden Administration outright refused to respond to our reasonable demands and turned their backs on student survivors.

Currently, the Biden Administration plans to wait until May 2022 to propose a new Trump-DeVos Title IX rule to help survivors. But that’s way too late. If they follow the same timeline as the last Administration, we wouldn’t get a new more effective Title IX rule until February 2024. We told them student survivors cannot wait any longer for the department to restore our civil rights. They must act now.

And what was their response? They asked us for ideas on how to prevent sexual assault on campuses. Yes, really. As if we hadn’t just presented our ideas in the form of a petition with more than 55,000 supporters! How do you prevent sexual assault?? A new Title IX rule issued this year, not May 2022, that’s how!

Then we took a deep breath, and decided to share some stories of students who survived sexual assault. It was heart-wrenching and difficult. But we ended by again reiterating what would have helped these students –– a Title IX rule that supports the rights and safety of all.

But the Department, again, shirked off our demands. I’m sick and tired of people in power asking survivors to share their trauma only to ignore their demands and turn their back on them.

I’m angry, I’m disappointed, but I’m ready to keep fighting. We organized a national movement that pushed the Obama administration to take survivors’ safety and access to education seriously––and we will do it again. But we need your help––here’s how:

  1. If you’re a student or recent alumni, sign up here to join a national coalition of students demanding #EDActNow. Today was just the first step, but we’re not done yet.
  2. If you’re not a current student or recent alumni, donate to ensure we can expand our national movement to organize for the rights of survivors. No amount is too small!
  3. Add your voice to this fight and check out the #EDActNow digital engagement toolkit for ways you can spread the word online or in your own community.

This is just the first week of October, there is still time for the Department of Education to come to their senses and meet some of our demands. But from what we’ve seen today, it’s going to take a lot of pressure to get them there.

In Solidarity,

Sage Carson

Manager, Know Your IX

Source: Know Your IX group message titled, “We met with the Dept. of Education, they turned their backs on us.”
Categories
Campus Investigations Title IX

Brett Sokolow: Dogged Pursuit of a Separate Reality

Brett Sokolow: Dogged Pursuit of a Separate Reality

SAVE

September 24, 2021

The overriding purpose of a campus Title IX adjudication is to evaluate the truthfulness of the allegation. The due process procedures used to achieve this goal include objective investigations, live hearings with cross-examination, impartial adjudications, and an opportunity for appeal, all buttressed by the presumption of innocence.

Following the release of the Dear Colleague Letter (DCL) in 2011, suspended and expelled students began to file hundreds of lawsuits alleging violations of due process. Eventually, judges would issue over 200  decisions favorable to the students.

Six years after the issuance of the DCL, ATIXA president Brett Sokolow issued an upbeat assessment of the current state of due process on college campuses. Modestly titled, “One Response to Congressional Task Force Roundtable,” Sokolow dismissed any need to revitalize due process protections, concluding that “we need to be pushing back as an association and as a field” on the premise that campus processes lack “procedural rigor.”

None of his claims were supported by any references to case law, research, or even anecdotes. Indeed, a careful review of Sokolow’s assertions reveals that four of them are so contrary to existing case law as to suggest Sokolow was unaware of — or had chosen to ignore — the numerous judicial decisions that had been issued as of October 30, 2017, the date that Sokolow published his Response.

Sokolow’s four claims are presented below, verbatim and in italics, followed by a listing of the pertinent judicial decisions that had been issued before the date of the Sokolow pronouncement:

  1. Transparent Investigations and Access to Evidence: “Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;”

Contradicting the Sokolow assertion, 13 judicial decisions were issued prior to October 30, 2017 that documented deeply flawed investigative procedures:

  1. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017)
  2. Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799, 816–17 (E.D. Pa. Sep. 13, 2017)
  3. Doe v. The Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799, 817 (E.D. Pa. Sep. 13, 2017)
  4. Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
  5. Tsuruta v. Augustana University, No. CIV. 4:16-4107-KES, 2017 WL 11318533, at *3 (D.S.D. June 16, 2017)
  6. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
  7. Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
  8. Ritter v. Oklahoma City Univ., W.D. Okla. No. CIV-16-0438-HE, 2016 WL 3982554, at *2 (W.D. Okla. July 22, 2016)
  9. Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016)
  10. Doe v. Ohio State University, No. 2:15-CV-2830, 2016 WL 1578750, at *3 (S.D. Ohio Apr. 20, 2016)
  11. Doe v. Rector & Visitors of George Mason University, 149 F. Supp. 3d 602, 619 (E.D. Va. Feb. 25, 2016)
  12. Doe v. Georgia Board of Regents, No. 1:15-cv-04079-SCJ, at *37-38 (N.D. Ga. Dec. 16, 2015)
  13. Doe v. Washington and Lee University, No. 6:14-CV-00052, 2015 WL 4647996 (W.D. Va. Aug. 5, 2015)

The judge’s language was particularly strong in Doe v. Georgia Board of Regents: “To put it bluntly, [investigator] Paquette’s testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional.”

Regarding adequate access to evidence, three decisions underscored schools’ failures in this area:

  1. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *11 (S.D. Ohio Aug. 25, 2017)
  2. Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
  3. Marshall v. Indiana University, 170 F. Supp. 3d 1201 (S.D. Ind. Mar. 15, 2016)

In Marshall v. Indiana University, the judge noted, “the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against [respondent] Marshall, notably refusing, at all times, to share such information with Marshall or his attorneys.”

  1. Credible Evidence: “Colleges respect key procedural rules, including requiring that evidence be relevant and credible…”

Sokolow’s claim is challenged by three decisions issued prior to October, 2017 that revealed failures to conduct credibility assessments of the complainant:

  1. Arishi v. Washington State Univ., 196 Wash. App. 878, 908, 385 P.3d 251, 265 (2016)
  2. Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
  3. Mock v. University of Tennessee at Chattanooga, No. 14-1687-II, at *14 (Tenn. Ch. Ct. Aug. 4, 2015)

In Arishi v. Washington State Univ., the judge explained, “But the fact that [complainant] MOS did not testify and was never cross-examined undermines confidence in the outcome. This is particularly so in light of evidence undermining her credibility: she misrepresented her age on Badoo as 19, misrepresented ‘Alex’s’ age to her mother, was going out during the daytime when she was supposed to be doing homework at home, was driving illegally, and had a different version of events when interviewed by Sergeant Chapman than she did when interviewed twice by Detective Dow.”

  1. Evaluation of Evidence: “Colleges allow and seek expert evidence and testimony as needed;”

In contrast to the Sokolow characterization, seven judicial decisions that highlighted school deficiencies in the evidence evaluation had been handed down prior to his statement:

  1. Painter v. Adams, W.D.N.C. No. 315CV00369MOCDCK, 2017 WL 4678231, at *7 (W.D.N.C. Oct. 17, 2017)
  2. Richmond v. Youngstown State University, No. 4:17CV1927, 2017 WL 6502833, at *1 (N.D. Ohio Sep. 14, 2017)
  3. Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
  4. Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
  5. Doe v. Brown University, 166 F. Supp. 3d 177, 185 (D.R.I. Feb. 22, 2016)
  6. Prasad v. Cornell Univ., N.D.N.Y. No. 5:15-CV-322, 2016 WL 3212079, at *15 (N.D.N.Y. Feb. 24, 2016)
  7. King v. DePauw Univ., S.D. Ind. No. 2:14-CV-70-WTL-DKL, 2014 WL 4197507, at *13 (S.D. Ind. Aug. 22, 2014)

In Painter v. Adams, the judge revealed: “Here, defendants maintain in their Memorandum in Support of summary judgment that ‘plaintiff presented no documentary evidence’ at the disciplinary hearing. However, it appears that he presented no documentary evidence because he was prevented from doing so. The evidence, viewed in a light most favorable to the party resisting summary judgment, shows that he was prevented from placing into the record exculpatory physical evidence, which raises a concern as to whether plaintiff was denied Due Process.”

  1. Cross-examination: “Colleges allow questioning of the parties, if not cross-examination in its purest form.”

Six judicial decisions had been issued before October 2017 that exposed deficiencies in schools’ cross-examination procedures:

  1. Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. Sept. 25, 2017)
  2. Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017)
  3. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017)
  4. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017)
  5. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
  6. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014)

In Doe v. Glick, for example, the judge revealed, “Further, Respondent [Glick] appears to have told [complainant] Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule.”

Unsubstantiated Claims

On September 5, 2017, almost two months before Sokolow made his claims, the Foundation for Individual Rights in Education released the findings of its Spotlight on Due Process survey of due process policies at 53 top universities. Reporting on findings that FIRE characterized as “dire,” the survey found:

  • 6% of top universities did not guarantee students that they will be presumed innocent until proven guilty.
  • Only 47.2% of schools required that fact-finders be impartial.
  • 9% of schools were assigned a ‘D’ or ‘F’ grade for dismal due process policies.

But Sokolow apparently was unaware of the FIRE survey. To the contrary, Sokolow concluded his upbeat assessment by noting, “I think this is enough and should be enough to satisfy a judge.” So “colleges and universities need to do a better job of driving the dialogue about how much due process they DO afford,” Sokolow argued.

In an August 2021 presentation, Sokolow finally did acknowledge the existence of a “tide of litigation.” But inexplicably, Sokolow attributed the lawsuits to “a decade of conflicting guidance, judicial intervention, and inconsistent enforcement” (Brett Sokolow and Terri Lakowski, Time With IX. Slide No. 12) — not to the Kangaroo Court-like procedures that scores of judges had struck down during the preceding 10 years.

Sokolow’s unsubstantiated claims reveal a determined effort to pursue an alternate reality that bears little relationship to the current realities of campus Title IX adjudications.

Categories
Campus Title IX

ATIXA: Catherine Lhamon Senator Support Template Letter

ATIXA: Catherine Lhamon Senator Support Template
Letter

Download the word document template to customize and e/mail to your Senator now!

[Insert Senator Name Here]

[Insert Senator Office Name Here]

[Insert Address Here]

Dear [Insert Senator Name Here]:

I write to express my support for Catherine Lhamon’s nomination to be Assistant Secretary for the Office for Civil Rights at the US Department of Education. [I’ve admired Ms. Llhamon’s dedication in her roles as the Chair of the US Commission on Civil Rights, as Legal Affairs Secretary to Governor Newsom, and in her current role as the Deputy Director of the Domestic Policy Council at the White House with a focus on equity.

During her time leading the US Commission on Civil Rights, Ms. Lhamon took on the issue of fair wages for adults with disabilities under the Fair Labor Standards Act. As part of this work, she

recognized the importance of taking a bipartisan approach to this issue, and eschewed ideological dogmatism. The same was true of her first tenure with The Office for Civil Rights (OCR) from 2013-2017. Early on, she led efforts to ensure that victims of discrimination were well-protected, but her team at OCR also demonstrated that when circumstances indicated a need for Title IX to also be protective of the rights of respondents, including due process rights, Llhamon’s team was responsible for issuing the Wesley College Resolution. This seminal document was widely circulated to higher education in 2017 to signal that OCR enforced Title IX to ensure fairness to all, not just to victims.

In addition, her work at OCR increased transparency, by ensuring that enforcement actions were widely promoted and disseminated from the OCR website to schools in the field, when a key investigation finding was added to the online database. ATIXA expects a return to that consistent practice during the current administration.]

Thank you for taking the time to consider supporting the nomination of Catherine Lhamon to the Department of Education’s Office for Civil Rights. Your constituents in [insert state] are interested in your choice on this nomination and hope we have your support..

Very truly yours,

Brett A. Sokolow, JD

Source: https://www.atixa.org/resources/catherine-lhamon-senator-support-template-letter/  September 14, 2021

Categories
Campus Office for Civil Rights Sexual Assault Sexual Harassment Title IX

Continued Wave of Judicial Decisions Reveals Absurdity of Catherine Lhamon ‘Civil Rights’ Nomination

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Continued Wave of Judicial Decisions Reveals Absurdity of Catherine Lhamon ‘Civil Rights’ Nomination

WASHINGTON / September 13, 2021 – Judges have handed down over 200 Title IX decisions against colleges and universities in recent years (1). Ironically, the civil rights abuses that led to these lawsuits occurred as a direct result of the policies that were promoted by the federal Office for Civil Rights, which Catherine Lhamon directed from 2013 to 2016.

On May 13, 2021, the White House announced its intention to nominate Lhamon to head up the Department of Education’s Office for Civil Rights (2). During the four months following the White House announcement, the wave of judicial decisions against schools continued apace, with eight additional decisions handed down that are adverse to schools:

  1. May 28: Doe v. Embry-Riddle Aeronautical University ruled that the college failed to conduct an impartial investigation. and was biased against Doe because the college failed to investigate his counterclaims of sexual assault (3).
  2. June 1: Doe v. Regents of the University of Minnesota held the district court erred in dismissing Doe’s Title IX claim because Doe plausibly stated the college was biased against him because of his sex (4).
  3. June 15: Doe v. University of Denver found that the district court failed to apply the correct summary judgment standard, the accused plausibly stated that the college was biased against the accused because of his sex, and the college failed to take into account the accuser’s materially false statements (5).
  4. June 23: Munoz v. Strong held that Michigan State University failed to afford the accused the due process protections guaranteed by the Fifth Amendment (6).
  5. June 25: Doe v. Hobart and William Smith Colleges found that the accused student plausibly claimed the college was biased against him because of his sex, and the college failed to review relevant evidence (7).
  6. August 1: Doe v. Columbia University ruled that the accused student plausibly stated the college was biased against him because of his sex, and the college failed to conduct an impartial investigation and review relevant evidence (8).
  7. August 23: Moe v. Grinnell College held that the college failed to provide adequate notice, conduct an impartial investigation, and review relevant evidence (9).
  8. August 28: Doe v. Lincoln-Sudbury Region et al concluded that the school failed to fulfill notice requirements and acted in an arbitrary manner in issuing a retraction letter “clarifying” the results of a sexual assault investigation (10).

These eight rulings turned not on nuanced or arcane legal precepts, but rather on egregious civil rights violations of students’ due process rights:

  • In half of the cases, the judicial rulings confirmed illegal sex discrimination against the male student: Doe v. Regents of the University of Minnesota, Doe v. University of Denver, Doe v. Hobart and William Smith Colleges, Doe v. Columbia University,
  • In Doe v. Lincoln-Sudbury Region et al, the due process violations were so severe that Judge Dennis Saylor removed the qualified immunity protections of school officials.
  • Two rulings — Doe v. Regents of the University of Minnesota and Doe v. University of Denver — were issued by appellate judges, thereby establishing legal requirements in the Eighth and Tenth circuits.

The average settlement value for a Title IX lawsuit against a university ranges in the mid-to-high six figures (11). The average settlement value for a lawsuit against a school official is currently unknown.

During her August 3 committee hearing, Catherine Lhamon did not express regret, or even acknowledge, that the policies enforced during her previous OCR stint had created a spate of civil rights abuses. Under direct questioning, Lhamon declined to affirm her belief in a single due process protection. Indeed, Lhamon revealed her opposition to the presumption of innocence, saying that Title IX adjudicators “should be open to the possibility” that the accused party is not guilty (12).

Lhamon’s actions and statements reveal that she would be an “anti-civil rights” director of the Office for Civil Rights. SAVE calls on senators to reject the inexplicable nomination of Catherine Lhamon.

Citations:

  1. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
  2. https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/13/president-biden-announces-his-intent-to-nominate-catherine-lhamon-for-assistant-secretary-for-civil-rights-at-the-department-of-education/
  3. 6:20-cv-01220-WWB-LRH (M.D. Fla.)
  4. 19-2552 (8th Cir.)
  5. 19-1359 (10th Cir.)
  6. 1:20-CV-984 (W.D. Mich.)
  7. 6:20-cv-06338 EAW (W.D.N.Y.)
  8. 1:20-cv-06770-GHW (S.D.N.Y.)
  9. 4:20-cv-00058-RGE-SBJ (S.D. Iowa)
  10. 20-11564-FDS (Dist. Mass.)
  11. https://www.saveservices.org/2021/07/universities-pay-for-costly-title-ix-settlement-agreements/
  12. https://www.saveservices.org/2021/07/ocr-nominee-catherine-lhamon-repeatedly-side-steps-questions-about-campus-due-process/
Categories
Campus Title IX

Campus Officials at Growing Risk of Loss of Qualified Immunity

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Campus Officials at Growing Risk of Loss of Qualified Immunity

WASHINGTON / September 9, 2021 – Since 1982, employees of public institutions have been shielded from lawsuits by the doctrine of qualified immunity (1). Recent legal decisions reveal that courts now are rethinking the doctrine, both in the criminal system and on college campuses.

In three cases, Taylor v. Riojas, McCoy v. Alamu, and Tanzin v. Tanvir, the U.S. Supreme Court signaled its willingness to reconsider the long-standing qualified immunity defense (2). These decisions led court watchers to conclude that the “Supreme Court may now be entering a new dawn on qualified immunity, and judges of all levels should take notice.” (3)

Even if the Supreme Court ends up not revisiting the issue, school officials can no longer depend on the doctrine when engaging in conduct that clearly violates students’ due process rights. Indeed, Circuit Courts have denied school officials’ attempts to invoke a qualified immunity defense in three recent Title IX decisions:

  1. Eleventh Circuit: Doe v. U. of Southern Alabama – 2020
  2. Sixth Circuit: Doe v. Michigan State U – 2020
  3. First Circuit: Doe v. Lincoln-Sudbury Region et al – 2021

In Doe v. University of Southern Alabama, Doe alleged the defendant school officials were not entitled to qualified immunity because (1) the defendant school officials acted outside their discretional authority, and (2) the defendant school officials violated Doe’s constitutional right to due process that was clearly established. Although the court ruled that the school officials acted inside their discretional authority, the district court found that Doe “sufficiently alleged a claim that the decision-makers were biased.” Because the due process principle “is clearly established, the Defendants are not entitled to qualified immunity if [Doe] can demonstrate that they were biased.” (4)

In Doe v. Michigan State University, the Plaintiff’s constitutional claim addressed the right to a live hearing and cross-examination. The district court cited to Doe v. University of Cincinnati stating, “the Sixth Circuit held that ‘cross examination is essential to due process only where the finder of fact must choose between believing an accuser and an accused.’”  Thus, the Sixth Circuit accepts cross examination as a due process guarantee, making it “clearly established.” Because the disciplinary proceedings in this case were initiated in February 2018, which was after the Sixth Circuit’s decision in University of Cincinnati, the plaintiff has plausibly demonstrated a violation of a clearly established right, thus eliminating the defendant school officials’ qualified immunity defense at the pleading stage (5).

In Doe v. Lincoln-Sudbury Region et al the complaint plausibly alleged that a retraction letter “clarifying the results” of the school’s sexual assault investigation and concluding that the plaintiff was guilty of sexual assault violated the plaintiff’s right to due process. The defendant student officials failed to “notify him” about retracting the letter and failed to provide him a “meaningful opportunity to be heard” before the issue of the retraction letter. Looking at whether the right is clearly established, the First Circuit noted it had been clearly established that due process safeguards must be afforded when someone is deprived of their property interests. Thus, the district court concluded that “no reasonable school official would have understood that their conduct—issuing the letter, which they allegedly knew to be unsupported by the underlying evidence, without notice or opportunity to be heard—would satisfy due-process requirements.”  (6)

In Doe v. Lincoln Sudbury Regional School Committee, the court set out the following test to assess whether to defendant school officials were protected under qualified immunity; “[t]he [district] court must determine (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” The Doe v. Michigan State University decision relied upon a similar test.

Removal of the qualified immunity defense has occurred in at least one other campus case. In Business Leaders In Christ v. the University of Iowa, et. al., the Eighth Circuit denied qualified immunity to University officials who discriminated against a Christian student group since the case law on the free exercise of religion is so clear and undisputed (7).

SAVE’s “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations” summarizes over 200 court decisions that are consistent with the recent amendments to the Title IX regulations (8). In nearly one-quarter of these cases, judges cited constitutional due process or equal protection bases to support their decision.

Officials at public schools need to think twice before they violate the clearly established constitutional protections of students, or they may find themselves personally liable for civil rights violations (9).

Citations:

  1. https://www.law.cornell.edu/wex/qualified_immunity
  2. https://reason.com/volokh/2021/03/10/is-the-supreme-court-preparing-to-end-qualified-immunity/
  3. https://www.usatoday.com/story/opinion/2021/03/02/supreme-court-might-rethinking-qualified-immunity-column/4576549001/
  4. https://casetext.com/case/doe-v-univ-of-s-ala-1
  5. https://docplayer.net/200777324-Case-1-18-cv-jtn-sjb-ecf-no-77-filed-09-01-20-pageid-789-page-1-of-27.html
  6. https://kcjohnson.files.wordpress.com/2021/08/doe-v.-lincoln-sudbury-mtd.pdf
  7. https://ecf.ca8.uscourts.gov/opndir/21/03/191696P.pdf
  8. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
  9. https://www.nas.org/blogs/article/make-university-administrators-pay-and-watch-things-change

Addendum of September 10: Also see editorial by Greg Lukianoff and Adam Goldstein: Administrators who violate the 1st Amendment rights do not deserve protection of qualified immunity

Categories
Campus Title IX

ATIXA Refers to SAVE Press Release as ‘Crap’ and Using ‘Scare Tactics’

ATIXA Refers to SAVE Press Release as ‘Crap’ and Using ‘Scare Tactics’

SAVE

September 4, 2021

On September 1, SAVE issued a press release criticizing Brett Sokolow’s statement about cross-examination: https://www.saveservices.org/2021/09/title-ix-officials-who-undermine-due-process-place-themselves-at-risk-of-loss-of-qualified-immunity/

As a service to the SAVE readership, we providing a copy of the press release, as well as the ATIXA response, below. We invite persons to compare the ATIXA claims with the actual statements of the SAVE press release.

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

SAVE Services Scare Tactics

Brett Sokolow via ATIXA <atixa+brett.sokolow_at_atixa.org@gaggle.email> Unsubscribe
5:15 PM (11 minutes ago)
to ATIXA

SAVE Services is sending the crap below around, which you may have seen. We’ll talk about this tomorrow during the Time with IX, but briefly:

  • They’re clearly not happy with my conclusion about cross-examination, but note they neither refuted it nor suggested I was wrong.
  • Instead, they resorted to scare tactics about qualified immunity, which is a complete red herring. Why?
  • Their legal analysis is just bad. I never said college don’t need to provide for cross-examination, I just said the parties no longer have to submit to it. If the parties opt out, how does that put any college or administrator at risk of losing qualified immunity? It doesn’t, as long as you still abide by the regs.
  • Their whole argument conflates cross-examination with the suppression provision, which confuses apples and oranges.

More tomorrow…

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

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Title IX Officials Who Undermine Due Process Place Themselves at Risk of Loss of Qualified Immunity

WASHINGTON / September 1, 2021 – A recent decision from the District Court of Massachusetts highlights a growing trend of judges to disallow qualified immunity defenses in Title IX lawsuits. The decision sounds a warning to campus officials who have been advised to curtail cross-examination procedures. The consulting firm TNG recently recommended to Title IX personnel: “If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions.” (1) [emphasis added]

The Doe v. Lincoln-Sudbury Region et al lawsuit arose from an allegation of sexual misconduct in the high school setting. In this case, the initial Title IX investigation reached inconclusive results. But rather than finding the accused student “not responsible,” school administrators arbitrarily retracted the initial letter and replaced it with a finding of guilt (2).

In last Friday’s decision, Judge Dennis Saylor began his analysis with a history lesson: “More than thirty years ago, the First Circuit found that it had ‘long been “clearly established” that due process safeguards must be afforded’ when ‘persons are deprived of property interests.’”

The Court then rejected the school officials’ claim of qualified immunity: “Accordingly, defendants’ motion to dismiss Count 1 will be denied to the extent that it seeks dismissal of the §1983 claim as to Wong, Ramos, and Elenbaas in their individual capacities.” Wong is the district superintendent, and Ramos and Elenbaas are co-chairs of the school’s Title IX program.

In 2014, District Judge William Martinez first affirmed the necessity of cross-examination in the Title IX context. He highlighted that “the only evidence presented by the university was the unsigned, two-page list of events,” and that the complainant was not present at the hearing (3).

Over the ensuing years, a total of nine appellate court and 23 trial court decisions have been issued that affirm the essential role of cross-examination in campus hearings (4). Some of the opinions use emphatic and obligatory language. In Doe v. Westmont College, for example, California Appeals Court Judge Martin Tangeman ruled, “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly.” (5) [emphasis added]

None of the judicial rulings to date contemplate the possibility that a school official might actually advise a complainant to “just refuse to answer all cross-examination questions.”

Citations:

  1. https://www.jdsupra.com/legalnews/implementing-the-cardona-decision-for-1783273/
  2. https://kcjohnson.files.wordpress.com/2021/08/doe-v.-lincoln-sudbury-mtd.pdf
  3. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014).
  4. https://www.saveservices.org/2021/08/32-judicial-decisions-have-upheld-cross-examination-in-title-ix-cases/
  5. 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019).

Posted: https://www.saveservices.org/2021/09/title-ix-officials-who-undermine-due-process-place-themselves-at-risk-of-loss-of-qualified-immunity/