Save - Leading The Policy Movement For Fairness and Due Process On CampusSave - Leading The Policy Movement For Fairness and Due Process On Campus
By Richard Bernstein, RealClearInvestigations
Earlier this year, President Trump’s often embattled Education Secretary, Betsy DeVos, established new rules on handling sexual assaults on campus to strengthen protections for accused students, almost all of them men.
Joe Biden, who was the Obama administration’s point man for the policies DeVos upended, has made his displeasure clear.
“The Trump Administration’s Education Department … is trying to shame and silence survivors,” the Biden campaign platform declared. “Instead of protecting women,” it has “given colleges a green light to ignore sexual violence and strip survivors of their civil rights.”
To “stand with survivors,” Biden has promised not only to restore a set of Obama-era “guidelines” to combat so-called campus “rape culture” – with compliance a condition of federal dollars – but to add to them. As president, his campaign literature states, he would push for legislation creating, among other things, “online, anonymous sexual assault and harassment reporting systems.”
But as he works to restore and expand a “believe women” approach to sexual assault that DeVos and others criticized as a presumption of male guilt, Biden will face much more serious headwinds than the Obama guidelines did when first introduced in 2011.
In developments barely reported in the mainstream media, hundreds of colleges and universities across the country have run into a legal thicket as they’ve implemented the original guidelines. There has been a flood of lawsuits, more than 600 of them, brought by accused men in both state and federal courts claiming that colleges used biased, one-sided and unfair proceedings when they them found guilty of sexual misconduct and punished them, mainly by suspensions and expulsions from their schools.
Notable is that around half of the lawsuits heard by the courts to date have met with rulings in favor of the accused men – in effect a validation of the Trump-DeVos effort to protect the due-process rights of accused men and a rebuke to the Obama-Biden approach.
Then there is the matter of the Supreme Court, reconstituted with a conservative majority by President Trump’s three justice appointments — including Amy Coney Barrett. Before her elevation a few months ago, she was central in in what some lawyers view as a landmark case, Doe v. Purdue, when a federal appeals court found that Purdue University may have discriminated against a male student on the basis of sex, believing his female accuser’s version of events while barring the young man from presenting evidence on his own behalf.
“It is plausible,” the court said in its unanimous decision written by Barrett, that Purdue “chose to believe Jane because she is a woman and to disbelieve John because he is a man.”
“A real battle is shaping up,” Andrew Miltenberg, the lawyer who brought the case against Purdue, said in a Zoom interview. “On the one hand, you have Biden, the moving force behind the 2011 Obama policies who will attempt to roll back some of the regulations put into place under Trump, so we’re going to be revisiting due process and related matters, like investigations, hearings, and appeals.”
“At the same time,” Miltenberg, widely viewed as a pioneer in this emerging field of law, continued, “you have a clear majority on the Supreme Court who will be sympathetic to the plight of young men accused of sex assault and who haven’t had an equitable opportunity to be heard. And you have Supreme Court Justice Barrett, who’s written the most significant decision on the matter to date. It’s setting up an interesting and potentially volatile dynamic.”
Lawyers expect that as Biden strives to return to the Obama-era policies, confusion will abound as high schools, colleges, and universities try to figure out what set of policies they should follow because it would probably take years to rescind and replace the Trump/DeVos rules.
But it seems almost inevitable that the Biden administration will return to beliefs about sexual assault long advanced by feminists and the campus left. The very Biden vocabulary – the use of the term “survivor” rather than the more neutral “alleged victim” or simply “plaintiff” – is telling. It illustrates an inclination to assume, as Barrett found the Purdue administrators to have done, that sexual assault accusations should take priority over any contrary arguments or even evidence presented by the accused student.
Biden’s past statements indicate an acceptance of the “rape culture” ideology, the belief that, as one feminist website puts it, “sexual violence against women is normalized and excused in the media and popular culture,” and that the deeply embedded misogyny of patriarchal culture requires extraordinary measures to combat – a vision of society rejected by its critics as wild exaggeration.
“We need a fundamental change in our culture, and the quickest place to change culture is to change it on the campuses of America,” Biden said in a 2015 speech at Syracuse University.
Biden was especially blunt in a 2017 speech at George Mason University when he said, “Guys, a woman who is dead drunk cannot consent — you are raping her,” a statement suggesting but then dismissing the ambiguities that often cloud sexual assault claims, including the common presence of alcohol, and differing and changing recollections.
Biden ardently supported the Obama administration’s 2011 “Dear Colleague” letter introducing the guidelines to college administrators, even though from the outset there were strong objections to some of its provisions. Among them, the letter encouraged schools to use a “preponderance of the evidence” standard of proof in deciding sex assault cases, rather than the more stringent “clear and convincing evidence” standard, which had been commonly in use in these cases before. A “preponderance of the evidence” is the lowest standard used to legal proceedings, requiring only that an accusation be seen as more than 50% likely to be true.
The Obama guidelines also permitted a “single adjudicator model,” whereby the person responsible for handling the case does both the investigation into the facts and makes the judgment of the accused person. This person is more often than not the Title IX coordinator on campus, Title IX being the 1972 law that banned sex discrimination in education, generally seen as an effort to advance women’s rights.
The guidelines also left it up to schools whether to hold live hearings, at which accused students could present exculpatory evidence, call witnesses, or cross-examine the students accusing them. Some court decisions that have gone against colleges have found that some sort of live hearing and some sort of questioning of accusers is necessary for a fair outcome.
“We did see some bad cases in the Obama era, cases where it basically didn’t matter what evidence there was,” Jackie Gharapour Wernz, a lawyer who worked in the Education Department’s Office of Civil Rights in both the Obama and Trump administrations, said in a Zoom interview. “The college was going to find against the defendant, the male defendant, no matter what. I think the schools felt pressure under the Obama guidance.”
Conservatives aren’t the only ones who have raised questions about the guidelines. The liberal Supreme Court Justice Ruth Bader Ginsburg, whom Coney Barrett replaced upon her death this year, expressed misgivings about them in a 2018 interview, just when DeVos was announcing the new rules: “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system.”
Similarly, 28 Harvard Law School professors signed a letter in 2014 protesting the measures Harvard had adopted in response to the guidelines which, they said, “lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.”
The law professors complained that Harvard “decided simply to defer to the demands of certain federal administration officials rather than exercise independent judgment.”
A survey conducted by YouGov in mid-November showed 68% of the 2,532 Americans polled agreeing that “students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Only 8% disagreed.
The DeVos rules, formally adopted in May after a two-year process of “notice and comment,” addressed the main complaints expressed about the Obama-era guidelines. Among other things, the DeVos rules require live hearings and the right of the accused, or usually his lawyer or adviser, to cross-examine the accuser; give schools the option to use “clear and convincing evidence” as their standard of proof; and narrow the concept of harassment.
Of course, no reasonable person condones sexual assault, or opposes punishing those genuinely guilty of it, but experts say it is often difficult to determine whether the activity was coercive or consensual.
“Probably 40 or 50% of allegations of sexual assault are baseless,” Brett A. Sokolow, the head of TNG, a risk management and consulting law firm who has served as an expert witness in many cases, said in a phone interview. “There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.
“There’s also the education that schools provide,” Sokolow continued, “telling students that if you were drunk and somebody had sex with you, come to us.”
Sokolow estimates that over the years across the country some 20,000 or more students have been disciplined at their universities for sexual misconduct.
According to a data base posted on the “Title IX for All” website, some 676 lawsuits have been brought against universities by men claiming discrimination or due process violations against them, and 194 of those decided by the courts have met with a favorable outcome for the student plaintiffs.
Many cases that have gone against the universities have been settled out of court, 98 of them, according to KC Johnson, a history professor at Brooklyn College and the CUNY Graduate Center in New York, who keeps track of the cases filed. This usually occurs after the school has lost its preliminary effort to have charges against it dismissed. But there have been two cases that have actually gone to trial, one involving a student suspended for alleged sexual misbehavior at Brown University, another at Boston College, one before a judge, the other a jury, and the students prevailed in both of them.
Johnson argues that courts are generally deferential to universities and reluctant to interfere in academic questions, which makes the substantial number of decisions in favor of the accused itself “quite remarkable.”
What’s also remarkable, as Johnson put it in a phone interview, is that “Biden has never acknowledged even a single one of these cases.”
Whether he recognizes them or not, any effort by Biden to formally rescind and replace the DeVos rules will take time, given that the DeVos rules were adopted after a lengthy, formal administrative process. By contrast, the Obama guidelines were a set of informal recommendations, taken seriously by schools because of the threat of financial penalties, but never having the status of formally adopted regulations.
A more difficult problem could well be that many of the court decisions issued so far presage difficulties for schools that adopt the very policies that a Biden administration is likely to favor.
Doe v. Purdue, for example, showed that schools could be found to be discriminating against accused men if they adopt a “start by believing” approach. As Barrett put it in her decision in which the parties were anonymized: “The majority of the [disciplinary] panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account. They made up their minds without reading the investigative report and before even talking to John.”
The court in Doe v. Purdue didn’t address the question of cross-examination, required by the DeVos rules but likely to be made optional in a Biden program. But in several cases already decided, courts have affirmed that cross-examination, or, at least, some direct questioning of an accuser by the accused or his representative is fundamental to a fair procedure.
In a 2018 case, Doe v. Baum, for example, the University of Michigan expelled a male student after he was accused by a female student of having sex with her when she was too drunk to give consent.
The university expelled John after a three-person panel found that Jane’s account was “more credible” than his. John, who said the sex was consensual, sued, and a federal appeals court ruled in his favor, on the grounds that he had “never received an opportunity to cross-examine [Jane] or her witnesses.”
“When the university’s determination turns on the credibility of the accuser, the accused or witnesses, that hearing must include an opportunity for cross examination,” the court found.
In another recent case, Doe v. Rensselaer Polytechnic Institute, a male student accused of sexual assault (the female complainant saying that she had been too intoxicated to give her consent) argued that the school’s use of the Obama guidelines rather than the stricter DeVos rules amounted to sex discrimination against him, and the court agreed. In other words, the court seemed to be saying that the DeVos rules could be applied retroactively to ongoing cases, even if they had been initially filed before the DeVos rules came into effect.
“There is no question that the decision increases the risk of legal challenges by respondents against their schools for using old procedures in ongoing or new cases,” Wernz wrote in a blog post.
The difference in these cases led one expert, Peter Lake, a professor of law at Stetson University and director of the Center for Excellence in Higher Education Law and Policy to say, “Due process in higher education is becoming a ball of confusion – a mix of conflicting cases and regulations in flux.”
That is why some experts believe the matter is likely to end up at the Supreme Court. “Accused students have had appellate decisions in their favor in much of the country, but no general standard has been established, and there have been contrary decisions as well,” KC Johnson said.
“So my sense is that the Biden administration will construct a narrative around the decisions that have gone in favor of sexual misconduct accusers. It will be eager to confront the courts on this.”
If the issue does go to the Supreme Court, the case will be heard by two among the nine justices, Clarence Thomas and Brett Kavanaugh, whose confirmation hearings were dominated by accusations of sexual misconduct against them, which both angrily denied. The newest justice, Barrett, has already given a strong indication in her Doe v. Purdue opinion of how she might rule.
And then there’s the irony that Biden himself, though a “believe women” champion, has himself been accused of assault. Tara Reade, a former staffer, claims that some 30 years ago, when Biden was a senator, he pushed her against a wall in the Senate Office Building and digitally penetrated her, an incident that she recounted to friends at the time.
Biden has adamantly denied the accusation, saying that the alleged incident “never, never happened.”
Some experts certainly believe that if Biden were to undergo the sort of campus procedure that he advocated during the campaign, with a presumption in favor of the accuser, no live hearing, and no opportunity to present witnesses or to cross-examine Reade, he would most likely be found guilty.
By Buddy Ullman
December 14, 2020
President-elect Joe Biden has suggested that he will put a “quick end” to Secretary of Education Betsy DeVos’s rule that details how educational institutions must comply with Title IX, the transformative civil rights law that prohibits gender discrimination, sexual harassment, and sexual assault in educational programs receiving federal financial assistance.
This is a terrible idea.
In 2011, the Obama administration under Biden’s leadership stipulated equivocal and mostly discretionary guidance to colleges and universities on Title IX (TIX) compliance and, in particular, how these institutions should adjudicate TIX disputes. The quasi-judicial proceedings that resulted generally lacked due process and free speech protections, were legally dubious and patently unfair toward the accused, and too often resulted in erroneous conclusions.
Some 669 court cases filed by accused students have resulted, for which the majority of judicial decisions rendered have been favorable to the plaintiffs, mostly on constitutional and fairness grounds. In a nutshell, the Obama/Biden TIX guidance created a mess, and the need for TIX compliance reforms emphasizing due process and other constitutional and civil liberties was compelling. These reforms were achieved in DeVos’s TIX compliance rule.
While a professor at the Oregon Health & Science University (OHSU), I had the misfortune of experiencing Obama/Biden TIX guidance firsthand. I was a respondent in a duplicitous sexual harassment investigation, in which I wasn’t allowed to know the allegations against me or the identities of the complainants or witnesses; nor was I permitted to present witnesses on my behalf, to submit or review evidence, or to defend myself. What happened to me is not unusual for a respondent in a Title IX investigation.
Ultimately, I was found responsible for sexual misconduct and punished, only to learn ten months after my case was closed that the charges against me were complete fabrications and motivated by retribution. Notably, the Department of Education’s Office for Civil Rights refused to intercede on my behalf because it concluded that OHSU had applied Obama/Biden era guidance appropriately. The DeVos rule, had it been operative at that time, would have precluded these shenanigans.
Ironically, President-elect Biden experienced multiple accusations akin to those faced by TIX respondents. In 2020, he was accused of sexual assault and numerous past incidents of inappropriate behavior toward women and girls but survived the ensuing storm because he was powerful, privileged, presumed innocent, and given a platform to defend himself.
Most TIX respondents aren’t so lucky. Had Biden walked in my shoes, he would have been prosecuted mercilessly under his own guidance.
Biden has not offered a persuasive rationale for voiding the DeVos rule other than a few platitudes about how the rule aims to “shame and silence survivors” and “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” Survivors, Biden says, “deserve to be treated with dignity and respect, and…. not silenced.” The DeVos rule does nothing of the sort: it ensures fairness, equitability, and impartiality when a sexual misconduct dispute requires investigation or resolution, something Biden’s own guidance did not.
Of greater concern, the President-elect does not appear to understand TIX’s purpose. TIX has nothing to do with sexual violence, survivorship, or campus safety issues. Rather, TIX is about equal educational access, which the DeVos rule protects admirably. The only time that sexual harassment or assault concerns TIX is when the misconduct secondarily affects participation in school programs and facilities.
The DeVos rule has proved controversial and partisan, but it shouldn’t be regarded that way. I am a liberal, progressive Democrat who finds little to like among DeVos’s educational policies, but her TIX rule is a meticulous, detailed, and well-considered nonpartisan document predicated on the U.S. Constitution, judicial precedent, and congressional intent. Emphasizing fairness and justice, the DeVos rule is far superior to the guidance that it supplanted. This Democrat can separate the message from the messenger.
Reverting to the Title IX compliance nightmare of the Obama/Biden era would be a major setback to the cause of fairness and due process. We can only hope that Biden doesn’t follow through.
President-elect Biden and his team are preparing to bring what he has called a “quick end” to the new rules requiring fair, nondiscriminatory campus procedures for students accused of sexual assault that the Betsy DeVos Education Department issued in May.
But the results of a little-noticed but stunning poll suggest that on this issue, Biden is far out of step with the electorate, not to mention the courts and fundamental fairness. In one major survey, 68% of the 2,532 Americans polled in mid-November by YouGov agreed that “students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.” Only 8% disagreed. The rest neither agreed nor disagreed.
The responses to this and the poll’s four other questions show broad public support for providing accused students with civil liberties protections even more robust than those required by the DeVos rules. Four other surveys since 2017 have also found strong support for campus due process.
Meanwhile, federal and state court judges across the country, including appointees of Presidents Clinton and Obama and their predecessors, have severely criticized many aspects of the campus sexual assault regimes imposed by most universities under pressure from the Obama-Biden administration, student activists, and many of their own professors and bureaucrats.
Accused students have won at least 194 favorable rulings in state and federal courts, including four federal appeals courts that expressed this summer “concerns that universities, however well-intentioned, had discriminated against an accused student on account of his sex, in violation of Title IX,” as KC Johnson has reported.
But the opinions of the electorate and of the courts are apparently less important to Biden than the fervor of the powerful interest groups that presume male guilt – Democratic legislators, accusers’ rights groups, university leaders, radical feminists, and more. Biden has personally bad-mouthed the DeVos rules, which leading civil libertarians have praised, as aiming “to shame and silence survivors” and “strip [them] of their rights.”
Biden led the Obama administration drive to require colleges to deny accused students a meaningful chance to defend themselves, thereby dramatically increasing the risk they’d be found guilty, even if they were actually innocent. The administration “threatened to withdraw federal funding from schools that resisted these directives, ‘strongly’ discouraging cross-examination and urging colleges to handle Title IX cases without a hearing and through a ‘trauma-informed’ approach that presented virtually any behavior as consistent with the accused student’s guilt,” as Johnson wrote.
It does not appear that the bias of Biden and other Democratic politicians against accused males has cost them much politically, perhaps because the mainstream media have largely ignored the issue. The new poll strongly suggests that most Americans support even more protections for possibly innocent accused students than are required by the DeVos rules and by many court decisions.
YouGov, which is highly respected across the political spectrum, conducted the poll on behalf of Stop Abusive and Violent Environments (SAVE), a little-known nonprofit that has been very active in supporting the DeVos reforms adopted for campus sexual assault proceedings. While SAVE’s agenda is no secret, its president, Edward Bartlett, pointed out in an interview that the five questions SAVE told YouGov to use in the November poll were taken almost verbatim from five of the questions that YouGov had included in a broader survey of 1,200 people conducted on behalf of Bucknell College in July-August 2017, with similar results.
In addition to the overwhelming majority of respondents who agreed that colleges should afford accused students the same civil liberties protections as the court system – that is, more protections than have ever been required even by the DeVos rules or by any court – the responses to the poll’s four other questions also show strong support for fairness to accused students.
A strong plurality (49%) of respondents agreed that students accused of sexual assault on college campuses “should have the right to cross-examine their accusers,” while 24% disagreed and 27% neither agreed nor disagreed.
Biden and many other Democrats have vowed to ban any cross-examination of accusers. The DeVos rules require campuses to allow representatives of accused students, but not the students themselves, to conduct a cross-examination. Some court decisions would also subject accusers to direct cross-examination by the accused.
Three-fourths of respondents to the YouGov poll agreed that “students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.” Only 5% disagreed. (The DeVos rules would generally allow colleges to find accused students guilty by a lower burden of proof, “preponderance of the evidence,” and very few if any colleges require more.)
More than four out of five respondents agreed that “students accused of sexual assault on college campuses should have the right to know the charge against them before being called to defend themselves.” (The DeVos rules require colleges to give accused students the same right.)
And when asked “which, if either, of these [two] statements comes closest to your own opinion,” 67% said that “allegations of sexual assault on campus should be primarily handled by the state or local police.” Only one-third said that “universities should take a leading role” in investigating such allegations.” (In reality, almost all universities routinely take a leading role in such cases.)
Will Biden heed public opinion on this issue? He never has. And he has never given the slightest weight to the possibility that some accused men may be innocent — with one exception. That was Biden’s denial of the unverified allegations by his former aide Tara Reade, who has claimed that the then-senator sexually assaulted her in 1993.
Weak as Reade’s allegations are, chances are that under the guilt-presuming regime that Biden plans to reinstitute, hundreds of college students facing equally weak allegations will be expelled by campus kangaroo courts. A man who has paid as much attention to campus sexual assault as Biden must know that.
How the New Title IX Regulation Benefits Sexual Assault Complainants
SAVE
December 12, 2020
Opponents of the U.S. Department of Education’s impending new Title IX regulation fear a huge setback in complainant’s rights. The National Women’s Law Center, a survivor advocacy organization, views the proposed regulation as radically weakening the department’s enforcement of Title IX protections against sexual assault and other forms of sexual harassment in schools. (1)
A strong argument can be made that the new Title IX regulation will benefit sexual assault complainants. (2) Accusers will have far more power to choose alternative paths of resolution, not be bound by their institutions’ rigid rules. Definitions of sexual harassment and supportive measures will be clear and reasonable. Complainants will be able to challenge the credibility of the respondent’s version of events via cross-examination.
In the spirit of empowering complaints with confidence, here are some of the ways the new Title IX regulation will benefit all complainants, the majority of which are women:
Survivor advocacy organizations should embrace and endorse the benefits of the new Title IX regulation. They should focus on complainants’ empowerment upon implementation of the new rule.
Citations:
by EMILY WALKENHORST ARKANSAS DEMOCRAT-GAZETTE | December 6, 2020 at 3:43 a.m.
Two Arkansas universities have joined the fast-growing ranks of institutions under federal investigation for offering “single-sex scholarships” — namely, scholarships for women.
The U.S. Department of Education this year has opened at least 120 Title IX investigations into colleges and universities for offering “single-sex scholarships.” Two of those investigations were at the University of Central Arkansas and the University of Arkansas at Little Rock.
The number of investigations of “single-sex scholarships” opened in 2020 and still active top the number of active investigations filed this year in every other Title IX category, including investigations into sexual violence and sexual harassment. Those categories combine for only 103 investigations opened this year and still active, according to federal data analyzed by the Arkansas Democrat-Gazette.
The increase in the scholarships investigations is largely because of complaints filed by a single person, said Brett Sokolow, president of the Association of Title IX Administrators. Mark Perry, a finance professor at the University of Michigan-Flint, has filed numerous complaints alleging unfairness to men. In blog posts and letters, Perry has likened his fight against single-sex academic programs, such as science summer camps for girls, as an effort to “end gender discrimination” and to end “gender apartheid.”
In many cases, the investigations have pressured colleges to either discontinue their women-only scholarship programs or make them available to men, as well. If successful in Arkansas, about a dozen privately funded scholarships would have to change.
O p p o n e n t s of t h o s e changes contend that the female-only scholarships and programs are critical to encouraging greater representation of women in certain academic fields dominated by men, such as science and engineering.
While 127 investigations into single-sex scholarships and 69 investigations into single-sex programs remain open, Sokolow acknowledged female-targeted scholarships and programs are ubiquitous. He said hundreds or thousands of schools could have such programs or scholarships.
“It’s pretty widespread,” he said.
Under Title IX, Sokolow said, academic institutional scholarships, whether provided by the institution or its foundation, must be distributed roughly 50-50 to women and men. That’s regardless of the student-body makeup.
In contrast, in athletics, the distribution must be proportional to the gender makeup of the student body. If 60% of students are women, roughly 60% of the school’s athletes should be women and roughly 60% of the dollar amount of athletic scholarships awarded should go to women.
Federal Equity in Athletics Disclosure Act data, examined by the newspaper, show that proportional distribution of athletic scholarships is not followed almost anywhere in Arkansas. Most student-athletes are male, and they receive most of the scholarship money. The scholarship money, however, is often distributed proportionally to the gender makeup of the student-athlete populations.
The idea behind those rules assumed that more men would play sports and that student bodies would be about 50-50 men and women, Sokolow said.
Only one of those assumptions proved to be true in the long run. Once outnumbered, more women now attend college than men, nationwide and in Arkansas.
Data provided by a handful of Arkansas universities show that most institutional academic scholarship money, not including foundation-provided scholarships, goes toward women. In most years, on average, however, female students received less in aid than the average male student.
The Arkansas Democrat-Gazette requested the information from all 10 of Arkansas’ traditional four-year public universities and many said they did not track it or did not respond. The newspaper obtained data outside of athletics from only five.
Colleges and universities commonly fail to track academic scholarship distribution data by race or gender, Sokolow said. But the investigations are causing many to start paying attention, he said.
The federal education department is investigating the University of Central Arkansas and the University of Arkansas at Little Rock for women-only academic scholarships financed by their foundations.
The Arkansas Democrat-Gazette obtained investigative records so far in each case. The complaints weren’t included and the complainants’ identities have been redacted.
The federal education department is investigating seven scholarships awarded to UCA students and at least three awarded to UALR students.
Many of the scholarships target academic programs in which women are less represented, such as science. Some are for business students.
Neither university offers scholarships for only men.
UALR also is under investigation for a single-sex program, based on a complaint from a person who was denied admission into a program.
The investigations have sought data on scholarships awarded, which the universities told the newspaper they have complied with.
The investigations remain open, though many colleges have attempted to resolve the complaints prior to any formal findings, by ending the scholarship programs or opening the scholarships up to more than women.
Sokolow often advises schools to do that. That’s easier when schools are the sponsors of the scholarships, he said. If the scholarships are provided through the foundation, the benefactor must agree to change the terms of the gift.
Others argue the schools shouldn’t have to do those things and the complaints should be tossed.
Earlier this year, the National Women’s Law Center, which has spoken out against the single-sex scholarship complaints, published a guide arguing that academic programs and scholarships targeting a single gender are allowed under Title IX. The guide notes the law states that schools can “take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex.”
“For example … a school can provide targeted programming to women in science, technology, engineering, and math (STEM) because women are underrepresented in these fields,” the law center contends. “Schools use affirmative action to promote diversity and to ensure that past discrimination and exclusion do not perpetuate ongoing exclusion.”
By Meg Mott
November 13, 2020
That’s what the new rules for Title IX are, argues Meg Mott.
As someone concerned about the fate of the Constitution under the Trump administration, I wish to publicly commend the Office for Civil Rights at the U.S. Department of Education. Through an arduous and inclusive process, it has struck an important balance between the rights of those accused of sexual assault and harassment and the needs of the accuser.
Unlike the earlier Obama-era rules, which demanded a “trauma-informed” process, the new rules follow the Bill of Rights. Instead of reducing accusers to psychologically damaged beings, the new rules require them to provide evidence for their accusations. Instead of assuming the accused is a sexual predator, it grants them the ability to mount a strong defense. By putting the burden on the institution to create a fair and adversarial system, both parties learn how to address harms in a constitutional democracy.
I didn’t always feel this way. Thirty years ago, I wanted the authorities to do more to protect women from sexual abuse. I believed that the right to due process gave sexual predators a free pass at the expense of victims. I advocated for the Violence Against Women Act, believing that stronger laws against sexual violence would empower survivors. As VAWA was implemented, the role of prosecutors was greatly expanded at the expense of women’s autonomy. If she balked at her co-parent’s impending imprisonment, the district attorney would override her wishes. Once the machinery was put in action, there was no turning back.
The Obama administration took some of the most illiberal components of VAWA and applied them to colleges and universities. A 2014 report from the White House Council on Women and Girls, titled “Not Alone,” declared that sexual assault “is a unique crime: unlike other crimes, victims often blame themselves.” Because the misconduct was assumed to damage the accuser’s psyche, basic principles of due process no longer applied. Complainants were described as “survivor” or “victim,” undermining the presumption of innocence. Neither party could freely discuss their case, a violation of their First Amendment freedoms. Persons charged with sexual harassment were not provided with specific details of the charge, nor were they given a chance to confront hostile witnesses — both violations of the Sixth Amendment.
By contrast, the new rules for sexual harassment define the complainant as “an individual who is alleged to be the victim of sexual harassment.” The respondent is “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.” College administrations are banned from using “gag orders,” and both parties are allowed to cross-examine each other’s testimony. Sexual harassment, which had been a notoriously vague charge, must now itemize specific instances and use objective standards as determined by the U.S. Supreme Court in the Davis decision.
One would think that all Americans would applaud the restoration of basic liberties, but that has not been the case. Former U.S. secretaries of education Arne Duncan and John King tweeted that the new rules will “put the accused before the victim.” Speaker of the U.S. House of Representatives Nancy Pelosi described the new rules as the “Trump administration’s wanton war to destroy Title IX’s critical protections for students and holding schools accountable.” The American Civil Liberties Union, normally a defender of fundamental rights, declared that the new rules were “devastating for survivors.” In these polarized times, commitment to civil liberties is determined more by party affiliation than respect for the Constitution. That is not good for our democracy.
In Anglo-American jurisprudence, the deck is stacked against the prosecution for a reason. Following the calculus that it is “better that 10 guilty persons escape than one innocent person suffer,” our criminal justice systems was designed to lean toward liberty and away from revenge. William Blackstone wrote that guiding principle in the 1760s. Known as Blackstone’s ratio, Benjamin Franklin amplified it in the colonies: “Better a hundred guilty persons should go free than one innocent person suffer.” In the land of freedom, the machinery of justice was designed to be imperfect in order to protect the innocent.
The Obama-era Title IX rules followed a different calculus: better for 10 innocent persons to suffer than for one survivor to experience more harm. This perversion of the Blackstone ratio was not just demanded by advocacy groups — it became the mind-set of the Department of Education and the Democratic party.
But it’s not just Democrats who reject the demands of Blackstone’s ratio. When asked in 2016 whether it was better for 20,000 guilty people to go free or for 20,000 innocent people to be jailed, 40 percent of the participants said it was better to put 20,000 innocent people in jail. Think about that. Almost half of the participants want to sacrifice the innocent rather than let the guilty go free. The Cato Institute, which conducted the survey, found the strongest indicator was not race: 60 percent of African Americans, 61 percent of Caucasians and 55 percent of Hispanics agreed that imprisoning the innocent was worse than allowing the guilty to go free. The key indicator was whether or not the participant supported Donald Trump.
Had the Cato Institute asked college students whether it was better to let 10 guilty sexual offenders go free or expel 10 innocent persons, I worry that a high majority would opt for the expulsion of innocent people. By forcing colleges to use the “trauma-informed” approach, this generation of college students has confused therapeutic interests with citizen interests. The former focuses on the subjective experience of a harmed party and is best handled with an individual or family therapist. The latter focuses on the rights of all citizens in a democracy.
My hope is that under the new rules the next generation of students will develop the skills to live in a constitutional democracy. Those who have suffered from the actions of another will have a chance to describe how those actions affected their well-being and interfered with their education. Those who are accused will be afforded the chance to mount a strong defense. Everyone involved will need to use their thinking muscles and inner moral compasses to determine a just outcome.
The system will not work perfectly; some of the guilty will go free. But those inefficiencies are the costs society pays for freedom. The new rules give America’s future leaders a deeper appreciation for liberty, even when it works against their personal interests. Perhaps in a few years, more Americans will embrace Blackstone’s ratio. Better to let some of the guilty go free than look for healing in a judicial system designed to sacrifice the innocent.
~ Meg Mott is professor of politics emerita at Emerson College.
Why revisions to Title IX are good for democracy (opinion) (insidehighered.com)
PRESS RELEASE
Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org
Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’
WASHINGTON / November 18, 2020 – A recent SAVE survey, conducted by YouGov, shows a strong majority of Americans support due process for college students accused of sexual offenses. The survey of 2,608 adults, representative of the U.S. population, reveals the following:
The survey also found that 68% of respondents said this statement, “Allegations of sexual assault on campus should be primarily handled by the state or local police,” comes closer to their opinion, compared to the statement, “Universities should take a leading role in investigating allegations of sexual assaults on campus.”
The recent survey was designed to replicate a 2017 survey conducted by the Bucknell Institute for Public Policy, which used the same questions and reported nearly identical results to the four questions listed above (1).
The Bucknell survey also queried, “Students accused of sexual assault on college campuses should have the right to cross-examine their accusers.” The new Title IX regulation only allows an intermediary to ask questions of the complainant, not the accused, so this question is no longer relevant to current campus policies.
Fieldwork was undertaken November 12-16, 2020. The survey was carried out online. The survey results are representative of all U.S. adults, aged 18+. This survey was conducted using an online interview administered to members of the YouGov Plc panel of individuals who have agreed to take part in surveys. The full survey results can be viewed online (2).
To date, federal and state judges have issued 193 decisions favorable to accused students (3). In a recent case involving Rensselaer Polytechnic Institute, Judge David Hurd utilized strong language to chastise RPI’s use of a double-standard. The court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” The plaintiff presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded (3).
In recent years, mistreatment of both complainants and the accused have resulted in campus disciplinary committees being derided as “Kangaroo Courts.” (5) This week SAVE is launching a new campaign titled “Save Due Process on Campus.” (6) The goal of the campaign is to assure the incoming Biden Administration retains and vigorously enforces the new Title IX due process regulation (7).
Links:
By: Mark J. Perry
November 5, 2020
I was informed yesterday by the Department of Education’s Office for Civil Rights (OCR) that another of my (now) 244 complaints (probably the most ever filed by a single individual, at least for single-sex programs) alleging Title IX violations in higher education has been successfully resolved in my favor. That brings the total number of Title IX complaints to date that have been favorably resolved to 30 and there are close to 100 ongoing federal OCR investigations based on my complaints that I expect to also be successfully resolved in my favor (given the clarity of Title IX’s legal standard above and the clear and frequent violations of that law in higher education). Successful resolutions are illegal Title IX violations involving sex-specific female-only programs that are corrected with one of three outcomes: 1) the discriminatory program is discontinued, 2) the discriminatory female-only program is offset with an equivalent male-only program, or 3) the discriminatory female-only program is converted to a coeducational program open to all genders.
Here is information about the latest successful resolution of one of my Title IX complaints to the OCR:
In May 2019 I filed a Title IX complaint with the OCR against Duke University for operating three single-sex, female-only programs that illegally excluded and discriminated against male students. In August 2019, the OCR opened an investigation of Duke for violating federal civil rights laws (Title IX) for these three programs:
1. The Duke University Marine Lab has annually hosted the Girls Exploring Science & Technology (GEST) event, which as the program name indicates is a single-sex, female-only program that provided middle school girls only the opportunity to participate in hands-on science, technology, engineering and math (STEM) activities alongside female scientists working in those fields.
2. Duke’s FEMMES (Females Excelling More in Math, Engineering, and Science) as the program name indicates is a single-sex, female-only student-led education outreach organization whose mission is to engage young girls (only) in STEM (science, technology, engineering, math) fields through exciting hands-on activities and mentorship from female students and research faculty at universities. “In all components of FEMMES, female students and faculty members volunteer their time to instill enthusiasm about their careers in the developing minds of young women.” This education outreach program is discriminatory because it illegally excluded and discriminated against male students.
3. Girls STEM Day @ Duke as the program name indicates is an annual single-sex, girl only program that has taken place annually at Duke University in May for more than 100 middle and high school girls. This discriminatory program operated exclusively for girls and illegally excluded and discriminated against boys on the basis of sex against male students.
To resolve its Title IX violation, Duke University expressed an interest in voluntarily resolving the complaint before the completion of OCR’s investigation and signed a Voluntary Resolution Agreement (VRA) to address in allegations. In that VRA Duke agreed to decide by January 2021 whether it will: a) discontinue its discriminatory, single-sex, female-only programs or b) convert the female-only programs to coeducational programs open to all students and participants regardless of sex. If Duke chooses option (b) the university will also change the names of the programs “to eliminate any suggestion that they are for a single-sex and ensure that all communications related to the programs effectively communicate that the programs coeducational.” There is also an option for Duke to maintain the discriminatory names GEST and FEMMES but only if the university “can develop and implement strategies to effectively communicate to the applicable University community and the public that the programs notwithstanding their names are open to all students regardless of sex.”
From my experience, it’s easier for most universities to discontinue their illegal, discriminatory single-sex, female-only programs than to redesign them as coeducational programs open to all students including males. The programs and their supporters, staff, participants, and donors are too psychologically vested in female-only programs and it creates too much cognitive dissonance and consternation trying to get “buy-in” from key constituents to open those programs to males. The commitment to provide illegal special preferences to females usually outweighs any concern to legally provide equal educational opportunities to males, and it’s therefore easier to just discontinue and drop the discriminatory program than to include males.
And the graphic above from the current FEMMES (Females Excelling More in Math, Engineering and Science) website (see any patterns?) makes it seem like Duke hasn’t yet accepted the fact that it was just found by the OCR to be in violation of Title IX’s prohibition of sex discrimination. And it hasn’t yet accepted that the female-only FEMMES program is violating its own anti-discrimination policy (edited slightly for humor):
Duke University is committed to ensuring an environment free of prohibited discrimination, and our policies encourage an inclusive community that respects and values all of its members [except for males until we got caught].
In accordance with federal laws, Duke University does not discriminate on the basis of age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex [except for males until we got caught], sexual orientation, or veteran status. We expand these protections further by also prohibiting discrimination based on gender identity, sexual orientation, and gender expression [except for males until we got caught].
It’s always both amusing and disappointing that so many universities so pretentiously, pompously and yet disingenuously profess their commitment to non-discrimination while at the same time discriminating on the basis of sex so openly and brazenly??
Here are some other updates on my civil rights advocacy:
1. In October, Western Washington University entered into a Voluntary Resolution Agreement with the OCR to resolve its Title IX violation for hosting and offering the “Girls Engineering Math and Science (GEMS) Academy,” which as the name indicates was a discriminatory, single-sex, female-only program that illegally excluded boys. The university was given until November 20 to decide if it would discontinue its discriminatory girl-only program or convert it to a coeducational program open to all genders include males. Given the fact that the program website no longer works, I’ll assume the university shut the illegal program down rather than legally open it to boys. Too much cognitive dissonance, too much vested interest in girls, and not enough buy-in to include boys, see above.
2. Also in October, Oregon State University resolved the federal investigation of its Title IX violation for offering five discriminatory illegal female-only faculty awards by opening the five awards “to anyone in the OSU community who has worked to advance gender equity.” Prediction: The awards will continue to be given to female faculty, but at least male faculty will now be technically eligible to receive these awards. We’ll call this a hollow Title IX victory.
3. In the last month, the OCR has opened 11 federal investigations of civil rights (Title VI and IX) violations based on my complaints for the following universities in the last month:
a. The University of Connecticut for its Outstanding Senior Women Academic Achievement Award, the Women Of Color Collective (WOCC) Event (Title VI), and the Men’s Project, a single-sex, male-only program “to train students who identify as male to positively influence their peers by challenging social norms that promote gender-based violence; understanding their connection to survivors of gender-based violence; and role modeling effective bystander interventions.” This is my first Title IX complaint for a male-only program. However, the program is offered through the university’s Women Center, so I suspect it’s probably a program for men to address their toxicity and privilege.
b. Yale University’s School of Management for a series of illegal, discriminatory single-sex, female-only programs including Programs for Women, Women’s Leadership Program Live Online, the Women’s Leadership Program, the Women’s Leadership Program Online, and Women on Boards.
c. The University of Alabama Birmingham for six discriminatory, single-sex, female-only staff, student, and faculty awards.
d. University of Connecticut for its BOLD Women’s Leadership Network.
e. Loyola Marymount University for hosting and partnering with the girl-only Project Scientist program.
f. University of Wisconsin Madison for its discriminatory Center for the Advancement of Women in Science and Medicine.
g. University of Minnesota for its Women’s Leadership Institute and the Women In Leadership program in the Carlson School of Management.
h. SUNY College of Environmental Science & Forestry for its Girls’ Summit program.
i. California Institute of Technology for hosting the discriminatory Project Scientist organization.
j. Lakeland Community College (Ohio) for its Woman of Achievement Awards.
k. State University of New York Albany for a variety of 14 different single-sex, female-only scholarships, awards, centers, academies, initiatives, and programs. This is a good example of a university that has tolerated illegal sex discrimination and allowed it to spread unchecked throughout the entire university. I’m sure I haven’t yet uncovered many other civil rights violations at SUNY-Albany as an outsider reviewing its websites.
Bottom Line: A university that tolerates and promotes so much illegal sex discrimination must either not even be aware that they are violating federal civil rights laws or be aware but not care because they think it’s acceptable to discriminate against certain groups. And SUNY Albany’s not alone, they’re fairly typical of the hundreds of American universities that practice systemic sexism with impunity. So either they’re ignorant of federal laws prohibiting discrimination or they think they’re above the law. In either case, it’s a sad indictment of “higher” education.
November 12, 2020
Students sometimes ask why FIRE spends so much time making sure students accused of sexual misconduct receive fair hearings. They’ve noticed that over the past decade, a lot of our work has focused on the interplay between Title IX and due process. But things weren’t always this way. While FIRE has always been on the front lines of the battle to ensure students accused of misconduct are given a meaningful opportunity to defend themselves before they are punished, our biggest early due process case centered around a Facebook post about a parking garage — it had nothing to do with sexual misconduct at all. FIRE started focusing more on fundamental fairness in sexual misconduct disciplinary procedures about a decade ago, when colleges and universities, under the direction of the federal government, started throwing away procedural safeguards specifically in sexual misconduct cases and not in other cases.
Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves.
This year, the Department of Education finally mandated that schools bound by Title IX (almost all colleges and universities nationwide) guarantee students accused of sexual misconduct under Title IX many critically important procedural safeguards to ensure they are not punished without due process. So what now?
FIRE’s goal was and is not that students accused of sexual misconduct be treated more fairly than students accused of other misconduct. Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves, including the right to a presumption of innocence, information about the charges and the evidence against them with time to prepare before the hearing, and a live hearing with an opportunity to cross-examine witnesses. Federal regulations now require that students facing discipline under Title IX are afforded these protections. This is a solid advance for campus justice, but schools owe students an explanation if they’re not going to treat non-Title IX cases with the same care with which Title IX cases will be handled going forward.
To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university.
As suggested by the Supreme Court of the United States in Goss v. Lopez, the formality of school disciplinary procedures required to achieve due process depends on what’s at stake. This factor — not whether alleged misconduct is sex-based — should be key in determining what kind of safeguards against unjust punishment a student is afforded. Case law in recent years has affirmed that where students’ educational careers may be derailed, robust safeguards like those now required by Title IX regulations are integral to a fundamentally fair process. And, of course, it would be just as reasonable to suspend or expel a student for creating a hostile environment based on race or for assaulting another student in a non-sexual context as it would be to suspend or expel them for sexual misconduct.
To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university asking it to provide students accused of non-Title IX misconduct the same safeguards students are entitled to receive under Title IX regulations. Whether schools choose to adopt FIRE’s Model Code of Student Conduct or simply make their new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion, improving the process is an essential step towards protecting student rights.
As always, students, faculty, or administrators with questions shouldn’t hesitate to email us at dueprocess@thefire.org.
Dear President [Name]:
As an institution bound by Title IX of the Education Amendments Act of 1972, [Institution] must abide by the Department of Education’s new Title IX regulations, which took effect August 14. The regulations require that schools like [Institution] guarantee students several important procedural safeguards in disciplinary proceedings prompted by allegations of sexual misconduct to ensure students have a meaningful opportunity to be heard.
Yet at present, [Institution] does not provide all of these safeguards in non-Title IX cases. I am writing to ask [Institution] to provide these safeguards to students in disciplinary proceedings for all cases where students face long-term suspension or expulsion. Where the stakes are high, the principles of due process and fundamental fairness require procedures tailored to help fact-finders arrive at accurate conclusions — whether the allegations are of sexual misconduct or non-sexual misconduct.
Among other elements, the Title IX regulations require schools to guarantee presumption of innocence, sufficient notice of charges, sufficient time with evidence to prepare for a hearing, impartial fact-finders, and live hearings with an opportunity to question witnesses. These safeguards help ensure that complaints of sexual misconduct will be taken seriously while all students accused of sexual misconduct are afforded a fundamentally fair process before being subjected to potential discipline. But just as allegations of sexual misconduct must be handled with care and integrity, so too should allegations of other types of serious misconduct.
To assist institutions with this goal, the Foundation for Individual Rights in Education has crafted a comprehensive “Model Code of Student Conduct.” FIRE’s Model Code includes definitions of key terms, an explanation of the institution’s jurisdiction, prohibited conduct, and disciplinary procedures that incorporate—into both sexual misconduct cases and non-sexual misconduct cases—the procedural safeguards mandated by the new Title IX regulations. The full Model Code is available on FIRE’s website at www.thefire.org/modelcode, and you can send questions to FIRE at dueprocess@thefire.org.
[Institution] can also better protect student rights simply by making its new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion. Students should be granted the safeguards required by the new Title IX regulations not because the allegations relate to sexual misconduct, but because the potential sanctions can be life-changing. To deny students in serious non-sexual misconduct cases those same safeguards, therefore, is unjustifiable and unfair.
Incorporating the important protections listed above into our student conduct procedures for all cases where students face serious punishments would establish our institution as a leader in protecting the rights of all students and the integrity of our hearing processes. I hope to see [Institution] take this step to make all serious disciplinary proceedings fair.
Sincerely,
[Student]
Source: https://www.thefire.org/students-accused-of-non-title-ix-misconduct-should-get-fair-hearings-too/