Category: Title IX

Court Rules University of Colorado-Boulder May Have Violated Student’s Due Process Rights

Post author By saveadmin
Post date October 6, 2020

The University of Colorado-Boulder’s (CU) refusal to allow “live adversarial questioning” in a sexual misconduct proceeding may violate an expelled student’s due process rights, a federal judge ruled last week.

Colorado District Court previously denied summary judgment to CU Boulder on multiple due process grounds: (1) Propriety of single-investigator model, (2) lack of hearing, (3) lack of cross-examination, and (4) withholding information.

The taxpayer-funded university will have to explain to U.S. District Judge William Martinez at a December bench trial why it didn’t give Girolamo Messeri, an Italian student, “a hearing before a neutral arbitrator” in his Title IX case.

On single-investigator model and right to hearing, the court notes: Requiring a hearing before a neutral arbitrator would also reduce the risk of error….providing a fresh perspective on any credibility determinations and decrease the likelihood that a party would be erroneously found responsible. It continues, “A reasonable fact-finder could thus find that the University’s failure to provide (student) a hearing before a neutral arbitrator violated his procedural due process.

Judge Martinez stated CU violated the student’s due process by not allowing cross-examination of his accuser and witnesses.

In his decision, the judge gave a remarkably blunt conclusion on cross-examination: The Supreme Court has stated that “cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”

He continued: This is a classic ‘he said, she said’ case that turns almost entirely on witness credibility. Without live adversarial questioning, Plaintiff cannot probe the witnesses’ stories to test their memories or potential ulterior motives, or to observe the witnesses’ demeanor. Plaintiff has a substantial interest in avoiding expulsion and continuing his education. The university’s interest in limiting procedural safeguards relating to student’s hearing rights are less evident. Although the University correctly points out that it has an interest in avoiding ‘converting its classrooms to courtrooms’ to referee cross-examination amongst students and their representatives, this interest truly pales in comparison to the risk of error which may result in the wrongful expulsion of a student.

The judge was also stunned by the University’s excuse for hiding the identity of a key witness. CU-Boulder simply claimed that constitutional due process does not promise accused students “every piece of evidence they desire,” and it cited an irrelevant appeals court decision from a case where opposing witnesses openly testified. Martinez disagreed with the University. Since the witness known as “W1” didn’t testify in front of Messeri, he was “effectively deprived of an opportunity to discover any inconsistencies…that were not plainly evident” in the evidence summary given to Messeri. The judge concluded: “Disclosure of key witnesses’ names provides a minimal burden on the University. The probative value of the information and risk of erroneous deprivation, however, is potentially substantial.”

The next step in the litigation is a trial preparation conference scheduled for Nov. 13. The December bench trial will not include the student’s gender-bias claim, which was previously rejected by Martinez.

The university expelled Messeri in December 2016 after finding that he forced a female who was not a student at CU to perform oral sex on him in September. She did not notify CU Boulder administrators of her allegations, but rather reported Messeri to campus police, who interviewed “Jane Doe” three times over six weeks and Messeri once. While Messeri was charged with sexual assault, the Boulder District Attorney’s Office dismissed the case because “it did not believe it could get a guilty verdict at trial.”

Messeri is seeking both damages and erasure of his expulsion from his transcript.

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

Amy Coney Barrett Could Change Campus Sexual Assault Rules Forever

Post author By saveadmin
Post date October 5, 2020

Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, could have a huge impact on how campus sexual assault cases are handled if appointed to the nation’s highest court.

Experts told Newsweek how Barrett’s appointment could affect Title IX after she wrote an appellate decision last year that made it easier for students accused of committing campus sexual assaults to challenge their university’s handling of the cases.

Title IX is the landmark civil rights law passed as part of the Education Amendments of 1972, aimed at protecting students from discrimination based on sex in education programs or activities that receive federal financial assistance.

A spokesperson for the University of Notre Dame, where Barrett is on the faculty, directed inquiries to the White House.

In a statement, a White House spokesperson said: “In Doe v. Purdue, Judge Barrett understood the importance of fair procedures for campus sexual misconduct proceedings and that Title IX protects both men and women from sex discrimination in such proceedings. In addition, Judge Barrett’s approach has been favorably cited by the Third, Sixth, and Eighth circuits.”

Barrett’s decision in Purdue University case

Last year, Barrett wrote an influential unanimous three-judge panel decision in the case of John Doe v. Purdue University for the U.S. Court of Appeals for the Seventh Circuit—a case involving students, identified only as Jane and John Doe, at the university in West Lafayette, Indiana.

Jane alleged her boyfriend had sexually assaulted her on two occasions in November 2015. John later filed a federal lawsuit against the university, arguing it had used constitutionally flawed procedures to determine his guilt. He also claimed the school had violated Title IX when it expelled him and took away his Navy ROTC scholarship.

In her decision, Barrett concluded Purdue’s process had been unfair and that the university may have discriminated against John based on his sex.

According to a summary of the case in the ruling, based on John’s account, Jane and John had been students in Purdue’s Navy ROTC program when they started dating in the fall of 2015. They had consensual sex between 15 and 20 times between October and December that year.

In December, Jane attempted suicide in front of John and they stopped dating after he later reported the attempt to the university. A few months later, during the university’s Sexual Assault Awareness Month, Jane accused John of sexually assaulting her on two occasions.

She alleged that she had been sleeping with John in his room in November 2015 when she woke to him groping her over her clothes without her consent. She said she had told him it was not okay.

Jane also alleged that John then confessed he had digitally penetrated her while the two were sleeping in Jane’s room earlier that month. John denied all of Jane’s allegations.

She never filed a formal complaint or testified about the alleged assaults, but the university pursued the case on her behalf, according to Barrett’s decision.

“The case against him boiled down to a ‘he said/she said’—Purdue had to decide whether to believe John or Jane,” Barrett wrote.

Barrett criticized Katherine Sermersheim, the university’s dean of students and Title IX co-ordinator, who allegedly sided with Jane without speaking to her. “It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote.

She added: “Sermersheim’s explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible.

“Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words.”

Barrett also cited the university’s alleged mistakes in the handling of the case, saying John was not allowed to view the investigators’ report and had been handed a redacted version only moments before his disciplinary hearing.

According to Barrett’s ruling, John learned that it falsely claimed he had confessed to Jane’s allegations and did not mention that John had reported Jane’s suicide attempt to the university.

“Two members of the panel candidly stated that they had not read the investigative report,” Barrett wrote. “The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults.”

Jane did not appear before the disciplinary panel or submit a written statement, the decision said. Instead, a written summary of her allegations was submitted by the Center for Advocacy, Response, and Education (CARE), a campus group dedicated to supporting victims of sexual violence.

The group posted an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are” on Facebook the same month John was disciplined, Barrett wrote in the ruling.

The university’s disciplinary panel also did not allow John to present witnesses, Barrett wrote, which included a male roommate who was reportedly in the room at the time of the alleged assault and disputed Jane’s account.

Barrett concluded the university’s process “fell short of what even a high school must provide to a student facing a days-long suspension.”

“John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair,” she wrote.

“It is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person.”

Barrett also said that John’s claims of sex discrimination were bolstered by the pressure put on schools and university by the Obama administration to tackle sexual assault and harassment on campus.

Because the Department of Education’s Office of Civil Rights had opened two investigations into Purdue in 2016, the pressure on the university to demonstrate compliance “was far from abstract,” Barrett wrote. “That pressure may have been particularly acute for Sermersheim, who, as a Title IX coordinator, bore some responsibility for Purdue’s compliance.”

The lawsuit remains unresolved and John still needs to prove he was discriminated on the basis of his sex to win his Title IX claim before a jury.

How Barrett’s decision could change campus sexual assault rules

Andrew Miltenberg, an attorney representing John, told Newsweek that Barrett’s ruling “set a standard by which [schools] have to hold themselves during an investigation.”

He added that it “not only recognized that there are procedural due process issues, which have to be preserved for someone accused, regardless of what they’re accused of but it also accepted the fact that it’s possible that, whether it’s an investigator, a hearing officer, or a campus culture, there can be bias within the system based on gender and based on a male being the accused.”

Miltenberg added: “We’re not at the point where a judge can decide whether we have enough evidence to win the case, that’s what the discovery process is for, but we are at a point for a judge to recognize that there is a basis for these allegations.”

According to The Washington Post, Purdue University filed a counterclaim in June asking the court to declare Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

Tim Doty, a spokesman for the university, said in a statement to Newsweek: “While Purdue believes in its process and decision-making, we recognize the appellate court was bound by legal procedure to accept each of John Doe’s allegations as true and did not have the benefit of a full evidentiary record when it decided the case.

“That evidentiary record is currently being developed in the district court, and the university looks forward to the opportunity to present its full defense of this matter at the appropriate time and in the appropriate venue.”

Ruth Bader Ginsburg’s views on Title IX

The late Justice Ruth Bader Ginsburg, who Barrett would be replacing if confirmed, has spoken about due process for those accused of sexual misconduct—and said she believed criticism of some college codes of conduct on the matter was valid.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” Ginsburg told The Atlantic in 2018.

“Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Asked about how to balance due process with the need for increased gender equality, Ginsburg replied: “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, says Barrett’s opinion in Purdue would make it easier for accused students to bring civil litigation against universities.

“If an erroneous outcome case makes it to the Supreme Court, Barrett as the author of Doe v. Purdue University, would be a likely vote in favor of the “plausible inference” standard,” he told Newsweek.

“Setting up the kind of circuit split the Supreme Court likes to referee, other circuits seem to follow a pleading standard that makes it harder for a respondent in a campus sexual assault case to prove the outcome of the campus case was infected with sex bias.

“Barrett’s lowering of that standard in Purdue, if adopted by the Supreme Court, would make it much easier for respondents to sue and move their cases forward through motions to dismiss and perhaps summary judgment. They still have to prove sex bias at trial, but Barrett’s opinion in Purdue greatly simplifies the ways that respondents can prove disparate treatment under Title IX.”

“Drastically rolls back protections for student survivors”

Sokolow noted that Barrett’s appointment to the Supreme Court could also significantly affect Title IX in other ways.

He said Kollaritsch v. Michigan State University Board of Trustees is likely headed to the Supreme Court. “This case is fundamental to the future of Title IX, and will decide whether post-harassment or assault is required for deliberate indifference liability under Title IX,” he explained.

“The key question is once sexual harassment and/or assault takes place, and a school is deliberately indifferent to it, does it have to lead to a second act of sexual harassment or assault for liability to result? Barrett would be a likely “yes” vote in a decision that would significantly narrow the Court’s previous precedent in Davis v. Monroe County.”

The Supreme Court’s ruling in that case held that schools may be liable under Title IX if their response to a known act of student-on-student sexual harassment was “deliberately indifferent.”

Emily Martin, the vice president of education and workplace justice at National Women’s Law Center, told Newsweek that it was “deeply troubling” that a school’s commitment to taking sexual misconduct seriously had been suggested by Barrett as evidence of bias against men in the Purdue case.

“It’s a deeply troubling prospect that an icon of gender equality like Justice Ginsburg could be replaced with a judge who is eager to use sex discrimination laws in order to attack efforts to forward gender equality,” she said.

“It is no surprise the same administration that is doing everything it can to silence student survivors would put forward a nominee who goes out of her way to endorse this backwards and harmful view of Title IX.”

Martin’s was referring to changes to the Department of Education’s Title IX rules by Secretary Betsy DeVos that give a number of protections to those accused of sexual assault on college campuses, which came into effect in August.

They new guidelines narrow the definition of what can be deemed sexual harassment and require in-person cross-examinations between alleged perpetrators and their accusers.

Know Your IX, a political advocacy group, said the move “drastically rolls back protections for student survivors and makes it easier for schools to sweep sexual harassment under the rug.”

K.C. Johnson, a history professor at Brooklyn College and the City University of New York Graduate Center described Barrett’s decision in the Purdue case as the “single most consequential ruling in the area.” He told the Post that it had set a fair, simplified standard that has since been adopted by other circuit courts covering 22 states as well as the federal district court in Washington, D.C.

But Alexandra Brodsky, a staff attorney at Public Justice, a nonprofit legal advocacy organization, told Newsweek: “If Judge Barrett’s approach in Doe v. Purdue were to become the law of the land, though, schools and civil rights agencies would be in a terrible bind:

“By her logic, any efforts to enforce the rights of survivors and other marginalized people are evidence of bias against men and other dominant groups. That is wrong as a matter of law and reality. Students of all genders—men included—benefit when schools respect victims’ rights under Title IX.”

In a recent blog post, Brodsky wrote that Barrett’s opinion in John Doe v. Purdue University was “troubling” because the ruling “turned a sex discrimination statute on its head, using a law meant to prevent and address sexual assault to promote impunity for that very same behavior.”

She said while Barrett’s decision on due process in the case may “may well have been right,” the ruling on the Title IX claim is not only wrong, but “disturbing.”

“Even by Doe’s own account, there was no evidence the school had suspended him because of his sex, as required to state a claim under Title IX,” according to Brodsky.

One of the most disturbing aspects of Barrett’s decision is that “it treats the Department of Education’s efforts to enforce survivors’ Title IX rights as evidence of anti-male bias,” she said.

“Yet Judge Barrett relied on evidence that the school was trying to do right by survivors as evidence that it discriminated against men specifically. That will discourage schools from meaningfully addressing sexual violence, since doing so may—according to Purdue’s funhouse mirror vision of Title IX—justify a suspended student’s suit.”

She said, by Purdue’s logic, any attempt to combat discrimination “will instead serve to protect people who discriminate from consequences for their actions—consequences that may be necessary to root out injustice.”

This article has been updated with a statement from a White House spokesperson.

https://www.newsweek.com/amy-coney-barrett-appointment-campus-sex-assault-1534575

Campus Due Process Law & Justice Legal Title IX

Sex, Due Process and Amy Coney Barrett

Post author By saveadmin
Post date October 2, 2020

Three other appellate courts followed her 2019 Title IX opinion—a mark of her quality as a jurist.

By KC Johnson
Sept. 30, 2020 7:15 pm ET

Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As a judge on the Seventh U.S. Circuit Court of Appeals, Ms. Barrett wrote a 2019 decision that revolutionized how courts consider Title IX claims from accused students. Lawsuits in this area have multiplied since 2011 guidance from the Obama administration, which pressed universities to adopt biased procedures to favor accusers, hoping that doing so would increase reporting of campus allegations. Several other courts of appeals embraced Judge Barrett’s standard, which now applies to claims in 22 states. Beyond its importance to Title IX law, the opinion speaks to Judge Barrett’s quality as a jurist.

The case involved a relationship between two Purdue University students that ended after the male student reported his girlfriend’s suicide attempt to school officials. Four months later, the female student claimed that before they broke up, her boyfriend had sexually assaulted her as she slept. She had a campus victims’ rights group write her statement and then declined to appear at the Title IX hearing. A three-member university panel nonetheless found her claims credible, despite never hearing directly from her.

The panelists based their decision on an investigative report that the accused student said university officials refused to let him see. Their decision cost the accused student his ROTC scholarship and a potential career in the Navy. His case eventually came before a panel of Judges Barrett, Diane Sykes and Amy St. Eve in September 2018. Judge Barrett wrote its unanimous 30-page ruling nine months later.

The opinion was noteworthy for three reasons. First, it devised a new standard—both simpler and fairer—for courts to evaluate Title IX claims filed by accused students. The previous standard, offered by the Second Circuit in 1994, required accused students to jump through doctrinal hoops to raise a plausible claim. Courts would first establish whether a wrongful finding of guilt might have occurred, then search for sex discrimination elsewhere in the process, rather than evaluating the college’s adjudication as a whole.

Judge Barrett’s opinion dispensed with all this. Instead, she returned to the text of the statute, and instructed courts to ask a simple question: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the accused student] ‘on the basis of sex’?” The Purdue panel answered that question in the affirmative, citing the combination of the student’s likely innocence, the university’s procedural irregularities, and possible sex bias by the organization that drafted the accuser’s statement.

Second, the quality of the opinion has given it an outsize impact. In the past four months, three other appeals courts have adopted the Purdue test for Title IX lawsuits in states under their jurisdiction. Citing the Purdue opinion, Judge Raymond Kethledge of the Sixth Circuit argued in a June decision that an Oberlin College accused student’s “strongest evidence is perhaps the merits of the decision itself in his case,” since in a Title IX case where a school finds a seemingly innocent student guilty, “the merits of the decision itself, as a matter of common sense, can support an inference of sex bias.”

In September, the Eighth Circuit, also using the Purdue standard, issued a similar ruling in a case involving a University of Arkansas student whose guilty finding the court described as “unexplained” based on the record. And the Third Circuit explained that Judge Barrett’s proposed “straightforward pleading standard . . . hews most closely to the text of Title IX.” Given that Supreme Court opinions must not only decide the case before them but also provide clear guidance for lower courts, it’s significant that other appeals courts are adopting the Purdue opinion’s reasoning.

Judge Barrett devised a standard that protects likely innocent students, giving priority to the text of the statute itself to produce a simpler test for courts to follow. It is an impressive accomplishment.

Finally, the Purdue opinion rebuts criticism of Judge Barrett as a jurist focused on outcomes and blinded by ideology. The accused student also alleged that Purdue violated his constitutional rights, including by denying him the chance to cross-examine his accuser. Such claims are common in Title IX litigation; after the Obama administration “strongly” discouraged cross-examinations, most universities barred them.

The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint.

As Nancy Gertner, a Harvard law professor and a former federal judge, recently observed, “Judges of all stripes around the country have been concerned with fairness in these proceedings.” It’s unlikely that Judge Barrett’s nomination will rise or fall on her decision to join scores of her colleagues in issuing a ruling favorable to a student accused of sexual misconduct. But to the extent that concerns such as intellectual quality or judicial temperament still play a role in the confirmation process, Judge Barrett’s Purdue opinion should serve her well.

Mr. Johnson is a co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

https://www.wsj.com/articles/sex-due-process-and-amy-coney-barrett-11601507741

Campus Sexual Assault Sexual Harassment Title IX

For College Students, Due Process Is on the Ballot

Post author By saveadmin
Post date September 28, 2020

The new Department of Education Title IX regulation implementing much-needed reforms for sexual harassment and misconduct on college campuses is barely a month old, but could already see a short lifespan. Democratic presidential nominee Joe Biden has vowed a “quick end” to the reforms if elected, stating that they “give colleges a green light to ignore sexual violence and strip survivors of their rights.”

A return to the wild West form of justice on college campuses would be a travesty. For nearly 10 years, hundreds of students and faculty have been subjected to unfair campus disciplinary hearings. Since 2011, when the controversial “Dear Colleague Letter” on sexual violence was released, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with “expulsion” or “suspension,” and countless professors have been fired or censured. There is no limit to the trauma and emotional abuse these persons have experienced.

Instead of referring allegations of criminal sexual assault to local police, campus disciplinary committees were told to handle these cases. It was an experiment that went terribly wrong. Survivors were betrayed by complacent administrators; the accused were disenfranchised of their due process rights; and faculty members were silenced by overly broad definitions of sexual harassment. All of this came at a cost of many millions of dollars. The Department of Education reported that following release of the “Dear Colleague Letter” as the guiding principal for Title IX cases, the number of complaints to the Office of Civil Rights increased nearly five-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). More than 150 lawsuits filed against universities over Title IX proceedings have ruled in favor of the accused students.

A “Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus” was signed by more than 260 higher education faculty members from 43 states, representing a broad range of disciplinary backgrounds and political persuasions. The resolution concluded with an urgent appeal: “The undersigned professors call on lawmakers and university administrators to assure the prompt implementation of new policies that will clarify grievance procedures, enhance free speech, and embrace fairness for all.”

The Department of Education took these accounts and over 124,000 public comments into consideration while drafting the new rule that defines the responsibilities of institutions to respond to allegations of sexual harassment, including sexual assault, under Title IX.  It clearly defines sexual harassment, restores due process to the accused, and protects survivors during every step of the process.

Most schools, including Amherst College and the University of Colorado-Boulder, have embraced the changes and have responded swiftly to comply with the federal regulation’s posting requirement. The University of Vermont even posted a YouTube video of the training program its staff attended.

Liberals and conservatives both agree the old system is broken and that protections for victims and due process for the accused go hand in hand. The late Supreme Court Justice Ruth Bader Ginsburg eloquently described this in a 2018 interview with the president and CEO of the National Constitution Center. “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” Ginsburg said. “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

The new Title IX regulation from the Department of Education may not be perfect, but it does provide a roadmap to begin to repair our broken campus kangaroo courts. Vice President Biden should understand that we need national standards that are fair to all students. That is the only way to ensure justice for survivors and due process for the accused.

Ed Bartlett is president of SAVE, an organization founded in 2008 to help lead the national policy movement for fairness and due process on campus, at www.saveservices.org.

https://www.realclearpolitics.com/articles/2020/09/27/for_college_students_due_process_is_on_the_ballot_144310.html

Civil Rights Department of Education Department of Justice Due Process False Allegations Investigations Legal Office for Civil Rights Sexual Assault Title IX

Ruth Bader Ginsburg Agreed With Amy Coney Barrett That Campus Kangaroo Courts Were a Problem

Post author By saveadmin
Post date September 25, 2020

Federal appeals court Judge Amy Coney Barrett and the late Supreme Court Justice Ruth Bader Ginsburg agreed Title IX code of conduct trials were flawed.

Wednesday, September 23, 2020

by Jon Miltimore

In 2018, following the nomination of Brett M. Kavanaugh to the Supreme Court, President Trump tipped his hand about who he’d be inclined to choose if given the opportunity to fill another vacancy on the high court.

That person, the New York Times observed, was Judge Amy Coney Barrett, a conservative law professor whom Trump tapped for a federal appeals court in 2017.

A week ago, it appeared the chances of Trump filling another Court vacancy in his first term were slim. However, the death of Supreme Court Justice Ruth Bader Ginsburg, who died September 18 during her 27th year on the high court just six weeks before the presidential election, means Trump will get the opportunity to send another nomination to the Republican-controlled Senate.

Some sources claim Barrett still has the edge to win the nomination, though Cuban-American federal appellate judge Barbara Lagoa is also generating buzz.

As the Brett Kavanaugh nomination and previous hearings have shown, Supreme Court battles can be nasty, even nastier than typical political battles. There’s little reason to expect the filling of Ginsburg’s seat to be any different—even if it wasn’t coming just weeks before a presidential election—so it’s no surprise to see that news media are already dissecting Barrett’s court opinions.

Just 48 hours after Ginsburg’s death, the Washington Post ran an article on Barrett’s opinion in Doe v. Purdue University, a Title IX—the rule prohibiting sex-discrimination in public education —case involving a Purdue student (John Doe) who was suspended by the university after being accused of sexual assault by a former girlfriend (Jane Doe).

According to John Doe, as described by a court summary of the case, the couple met in Purdue’s Navy ROTC program and started dating in the fall of 2015. They soon began a sexual relationship. In December, Jane attempted to take her own life in front of John. He reported the attempt to the school, and the couple ceased dating.

“A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent,” the Washington Post reports. “Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.”

These are serious charges that demand a serious appraisal of the facts and due process. But like plaintiffs in Title IX cases—some 600 lawsuits have been filed against universities since Barack Obama’s Education Department issued its “Dear Colleague” letter to schools warning them they’d lose federal funding if they didn’t prioritize complaints of sexual assault—John Doe encountered something else.

Court documents show the hearing resembled a show trial, including a false confession, that resulted in a year-long suspension of John Doe that cost him a spot in the ROTC program.

“Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations,” the Post reports. “Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.”

All of this fits the pattern of the kangaroo courts universities established after the Dear Colleague letter. As Reason has spent the last several years documenting, these cases tend to presume individuals guilty until proven innocent, while depriving them of the due process necessary to prove their innocence.

Barrett is hardly alone in her jurisprudence regarding the importance of due process. As the Post concedes, campus kangaroo courts were widely criticized by civil libertarians across the political divide.

“Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Nancy Gertner, a Harvard Law School professor and retired federal judge appointed by President Clinton.

It was these concerns that prompted US Secretary of Education Betsy DeVos to issue new rules to Title IX hearings in April that strengthened the rights of those accused of sexual misconduct, including the right to cross-examine accusers and preventing investigators from also serving as case judges. (Former Vice President Joe Biden has said he’d reverse Devos’s ruling if elected president, which prompted some to point out that Biden, who like the current president stands accused of sexual assault, would be guilty under the current standard.)

Few would argue that protecting the rights of sexual assault victims is important, but it’s worth noting that among the critics of the previous standard was Ruth Bader Ginsburg.

The Post admits the “feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine” when she said many of the criticisms of college codes were legitimate.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” Ginsburg said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg is correct that due process and a fair hearing for the accused are fundamental principles of the American system. Yet hundreds of individuals who believe they were denied fair hearings and are seeking redress from universities have found the path difficult due to legal technicalities.

Plaintiffs tend to claim their rights were violated in two ways: 1) the unveristiy violated the plaintiff’s right to due process; 2) the school discriminated against the plaintiff on the basis of sex, violating Title IX.

Prior to Purdue vs. Doe, the Post reports, courts often upheld accused student claims of due process violations “but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.” Essentially, plaintiffs had to prove not just that their due process rights were violated, but that they were violated on the basis of their sex.

Barrett’s ruling, however, was instrumental in lowering the burden of proof plaintiffs had to show.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in her opinion, citing the political pressure the Obama administration had put on schools to address sexual assault.

Barrett’s opinion was adopted by other courts, and it was this reasoning that caused women’s rights groups to criticize the appellate judge.

Emily Martin of the National Women’s Law Center bristled at the idea of “replacing [Ginsburg] with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

We’ll never know if Ginsburg would have believed it was plausible to assume that sex played a role in the university show trials that allowed hundreds of people accused of sex crimes to be found guilty without due process or a fair hearing.

What we do know is that on the broader issue of campus kangaroo courts, Ginsburg and Barrett found common ground.

“We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally,” Ginsburg told The Atlantic in 2018.

Indeed. It was for this reason that America’s founders carved out specific protections for the principle, declaring in the Fifth Amendment that no person shall “be deprived of life, liberty, or property, without due process of law… .”

Universities have long been able to deny due process to students accused of sexual crimes, because the allegations against them are not criminal charges. This is a grave injustice.

Accusing individuals of heinous sexual misconduct is a serious matter. A verdict of guilt will be carried with students for the rest of their lives and has the potential to impact their career and future earnings, not to mention their reputation. Such matters are far too serious to withhold from the accused fundamental tenets of our system designed to ensure justice and fairness.

Justice Ginsburg and Judge Barrett might have had starkly different constitutional views, but on this basic idea of justice they found common ground.

Jonathan Miltimore is the Managing Editor of FEE.org. His writing/reporting has been the subject of articles in TIME magazine, The Wall Street Journal, CNN, Forbes, Fox News, and the Star Tribune.

https://fee.org/articles/ruth-bader-ginsburg-agreed-with-amy-coney-barrett-that-campus-kangaroo-courts-were-a-problem/

Department of Education Department of Justice Investigations Legal Office for Civil Rights Sexual Assault Title IX

Amy Coney Barrett, potential Supreme Court nominee, wrote influential ruling on campus sexual assault

Post author By saveadmin
Post date September 22, 2020

Amy Coney Barrett, a leading contender for the Supreme Court seat held by the late Ruth Bader Ginsburg, wrote an influential appellate decision last year that made it easier for students accused of sexual assault to challenge universities’ handling of their cases.

Barrett led a three-woman panel of judges that said Purdue University may have discriminated against a male student accused of sexual assault when it suspended him for a year, a punishment that cost him his spot in the Navy ROTC program.

“It is plausible that [university officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote in the case, in which the accuser was identified as Jane Doe and the accused as John Doe.

On Saturday, President Trump said he would nominate a woman in the next week to fill Ginsburg’s seat. In a call with Senate Majority Leader Mitch McConnell (R-Ky.), Trump mentioned Barrett and Barbara Lagoa, a judge on the U.S. Court of Appeals for the 11th Circuit, according to people familiar with the matter.

In siding with John Doe, Barrett was in line with the majority of rulings in this area of the law since 2011, when former president Barack Obama’s Education Department warned schools that they risked losing federal funding if they did not adequately prioritize sexual assault complaints.

About 600 lawsuits have been filed challenging decisions in campus sexual assault cases since 2011, of which about 30 have gone to federal appeals courts, said K.C. Johnson, a Brooklyn College and CUNY Graduate Center history professor who tracks these cases. The decision Barrett wrote for the U.S. Court of Appeals for the 7th Circuit in John Doe v. Purdue University is the “single most consequential ruling in this area,” he said, because it set a fair, simplified standard that has been adopted by three other circuit courts, covering 22 states, as well as the federal district court in D.C.

“This case was a trendsetter,” said Brett Sokolow, a consultant who advises schools and universities on compliance with Title IX, which bars sex discrimination by institutions receiving federal funding. Sokolow, who also serves as president of ATIXA, an association of Title IX administrators, called the opinion “revolutionary” and said it would make it easier for accused students to bring civil litigation against universities to a jury trial.

The lawsuits brought by male students accused of sexual assault generally argue that universities denied their due process rights, or discriminated against them on the basis of sex in violation of Title IX, or both. In many decisions before the Purdue case, Sokolow said, courts upheld accused students’ due process claims but rejected their Title IX arguments on the grounds that the students had failed a complicated series of legal tests first established in 1994.

By contrast, the 7th Circuit did not bother with those legal tests and upheld John Doe’s Title IX claim using a simple, streamlined analysis: Was it plausible that the university had been biased against him because he was a man? Yes, Barrett and her colleagues decided, allowing John Doe to continue to press his case by sending it back to the trial court.

John and Jane were students in Purdue’s Navy ROTC program when they began dating in the fall of 2015, according to a summary of the case in the court ruling that relied on John Doe’s presentation of the facts. They had consensual sexual intercourse numerous times. In December, Jane attempted suicide in front of John. He reported her suicide attempt to the university, and they stopped dating.

A few months later, Jane alleged that in November 2015, while they were sleeping together in his room, she awoke to John groping her over her clothes without consent. Jane said she objected and that John told her he had penetrated her with his finger while they were sleeping together earlier that month. John denied the allegations and produced friendly texts from Jane after the alleged November incident.

Among the university’s alleged missteps cited by the court: John Doe received a redacted copy of investigators’ report on his case only moments before his disciplinary hearing. He discovered that the document did not mention that he had reported Jane’s suicide attempt and falsely asserted that he had confessed to Jane’s allegations. Jane Doe did not appear before the university panel that reviewed the investigation; instead, a written summary of her allegations was submitted by a campus group that advocates for victims of sexual violence.

That group had posted on its Facebook page a Washington Post column headlined: “Alcohol isn’t the cause of campus sexual assault. Men are.” The university panel did not allow John to present witnesses, including a roommate of his who disputed Jane’s account. And two of the three members of the panel admitted they had not read the investigative report.

“Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension,” Barrett wrote in a decision released nine months after the case was argued.

The Supreme Court has not ruled on a Title IX campus sexual assault case in the past decade, experts said. But Ginsburg, a feminist icon, surprised some victim’s advocates in a 2018 interview with the Atlantic magazine in which she was asked about due process for those accused of sexual harassment.

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that,” she said. “Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg added that she thought some of those criticisms of college codes were valid.

Critics of the Obama-era guidance, which was rescinded by the Trump administration in 2017, said it set a standard that made it too easy for school officials to discipline students for alleged sexual misconduct. Advocates for sexual assault victims said the guidance was a necessary step toward addressing colleges’ long-standing neglect of victims’ rights.

In the Purdue opinion, Barrett wrote that John Doe’s allegations of gender discrimination were plausible in part because of the pressure that the Obama administration applied to schools and universities to confront sexual harassment and assault.

“The Department of Education made clear that it took the letter and its enforcement very seriously,” Barrett wrote, referring to the 2011 letter that relayed the Obama administration guidance to universities.

The Obama education department opened two investigations into Purdue in 2016, Barrett noted, so “the pressure on the university to demonstrate compliance was far from abstract.”

Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, said she is troubled by the suggestion that the Department of Education taking sexual misconduct seriously — and pressuring schools to do the same — could be construed as evidence of bias against men. Praising Ginsburg’s legacy of fighting for women’s rights, Martin bristled at the prospect of “replacing someone like that with a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

Martin said that many of the university’s actions as described by John Doe would not have been permitted under the Obama-era guidance. As is typical in such cases, the court considered the facts as alleged by John Doe in deciding whether to grant the university’s motion to dismiss his lawsuit.

Nancy Gertner, a retired federal judge and Harvard Law School professor, said she agreed with Martin’s criticism. But she added that many judges have been concerned about the way universities have handled students accused of sexual assault. “Judges of all stripes around the country have been concerned with fairness in these proceedings,” said Gertner, who was appointed to the bench by former president Clinton.

Education Secretary Betsy DeVos issued new Title IX regulations that expanded the rights of the accused and went into effect last month. The regulations require schools to handle sexual harassment and assault allegations differently than they handle any other kind of student misconduct case, Martin said. The new rules require a live hearing with cross-examination of the accuser, unlike in cases of alleged racial harassment, Martin said, “based on the really toxic idea that women and girls are particularly likely to lie about sexual misconduct.”

Supporters of the DeVos rules say that the stakes are so high in sexual-misconduct cases that cross-examination is appropriate and necessary to ferret out the truth when students’ accounts are at odds.

To win his Title IX claim before a jury, John Doe would still have to prove that he was discriminated against on the basis of his sex. His case is pending in district court. In June, Purdue filed a counterclaim asking the court to declare that Doe’s misconduct violated university policy and that the university was acting within its rights when it suspended him.

“The university is seeking a declaratory judgment that John Doe violated Purdue’s policies based on evidence in the record, which the 7th Circuit was not able to consider for procedural reasons at the time of its ruling,” university spokesman Tim Doty said.

Andrew Miltenberg, a New York lawyer who represents John Doe and has represented many accused students in successful lawsuits against their schools, described Barrett’s decision as the “crescendo” of a gradual movement in the courts toward accepting the idea that gender bias against men can shape universities’ handling of sexual assault complaints.

“There are many judges that have talked about the process or procedures being unfair,” he said. “There haven’t been many judges that have come out and said, ‘Hey, it seems to me that gender could have really played a role here.’ ”

https://www.washingtonpost.com/investigations/amy-coney-barrett-potential-supreme-court-nominee-wrote-influential-ruling-on-campus-sexual-assault/2020/09/20/843e964e-fb52-11ea-830c-a160b331ca62_story.html?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most

Campus Legal Sexual Assault Title IX

University suspended black student for a year because drunk white girl kissed him: lawsuit

Post author By saveadmin
Post date September 21, 2020

She told three different stories – and the last one can be falsified

Long Island University punished a black student for sexual assault despite his white accuser’s constantly changing story and several witnesses who either contradicted or couldn’t corroborate her claims, according to a lawsuit filed last week against the private university in Brookville, New York.

“John Doe” accused LIU of Title IX and Title VI violations, saying “gender bias was a motivating factor” in the “erroneous outcome” of his proceeding and racial bias explains the “differential treatment” he received compared to “Jane Roe.”

The university also violated his due process rights under New York law and committed breach of contract, including by failing to use the “preponderance of evidence” standard outlined in its disciplinary code, the suit claims.

Jane had drunkenly kissed John, “an active and well-respected member of his church,” without his affirmative consent “in front of many witnesses” in a dorm room. (As a football player on LIU’s team, John had also resolved not to drink during the season.) Later that night she panicked that her public behavior could harm her “committed relationship” with another man.

The next day she filed a complaint against John, claiming that the night before he had forced her to perform oral sex on him. He also “pulled” her into another room where he held her down and continued kissing her, Jane claimed. In the final version of her story, she made a factual assertion that could be vetted: John assaulted her behind a “wall” of dressers in the room, which is furnished by LIU.

Despite the fact that Jane’s story held no water with witnesses and she was never alone with John, LIU found her more credible in a “deficient and hasty investigation.” Having found him guilty of sexual assault, the university then inexplicably invited John to reapply to LIU for the next fall semester, the suit says.

That invitation may have been a ruse: John would learn from his coach several months later that the guilty finding had nullified his full-ride athletic scholarship, which “effectively expelled” him from LIU.

Title IX Coordinator Jean Anne Smith (below), also associate dean of students, wore several mutually exclusive hats in the proceeding, the suit claims. She represented herself to both John and Jane as each student’s “advocate,” investigated the allegations, judged John guilty and then picked his sanctions.

Smith and the other investigator, Nicole Thomas, repeatedly withheld information from John, including his right to present witnesses, he argues. Their own interviews with witnesses were “cursory and brief,” ignoring “key inconsistencies and contradictions.”

They also gave no reason for siding with Jane’s story over John’s – that she initiated nonconsensual contact with the kiss – and didn’t even let him hear her testimony, much less cross-examine witnesses, the suit claims. John says neither LIU nor Jane ever reported her allegations to police.

Rights limited to ‘reporting individuals’ – not those accused

LIU’s bias is institutionalized in its Sexual Violence and Harassment Policy’s Students’ Bill of Rights, which “shockingly” limits protections to only “reporting individuals” – those who allege violations, according to the suit.

This is despite the policy’s explicit promise of several rights for “all” students, including the presumption of innocence for accused students, “right to make an impact statement” on the cusp of sanctions and “equal opportunity” to present witnesses and evidence. John claims he was afforded none of these.

The policy does, however, reflect New York’s affirmative consent law: “both evince a surface-level refusal to recognize uniform rights for the accuser and the accused.” Signed into law by Gov. Andrew Cuomo, the statute has an “inherent bias” because it requires colleges to predetermine that any accuser “is at fault … or should have acted in a different manner to avoid” violations that have not been proven, John says.

Jane twice offered John drinks that he declined over the course of the night of Sept. 2, 2017, which started at the party and then moved into a dorm room. He says he didn’t know who she was until he learned she had accused him of sexual assault.

She “unexpectedly kissed” him for “a few seconds” even though he told her he had a girlfriend. Later, when he stopped to say hello to his football team captain on the way home, John saw Jane in that room as well, but she “appeared dramatically more intoxicated” than when she had kissed him.

He rushed back from his own dorm after a teammate called to say Jane was telling people he had “forced himself” on her. His own teammates – all white – were too drunk to tell him what she was saying, and no one else he recognized from the party knew who had accused him, or of what, according to the suit.

‘Objectively’ false claim about room configuration hiding the assault

Public safety officers told him the next day he had to leave campus immediately, having been accused of sexual assault. He was not told at the investigation’s outset that Jane had accused him of forcible oral sex and “dragg[ing]” her into her room, where Jane’s roommate allegedly pulled him off her.

Not only was the date of the incident wrong in the report, but it included no “single factual allegation” or specific code violation, he says, alleging it violated New York law.

Smith, the Title IX coordinator, was “masquerading” as John’s advocate when investigator Thomas interviewed him, before he knew Jane’s allegations or that Smith was also representing Jane. Neither told him he could pick his own advisor, conveyed “the significance of an advisor in the context of a Title IX investigation” or told him his other rights, the suit says.

By John’s count, Smith had “surreptitiously assum[ed]” four “conflicting simultaneous roles” – advisor to John and Jane, Title IX investigator and “sole party responsible” for adjudicating Jane’s complaint. He characterized the Sept. 5 interview as “unlawful.”

John never did get notice that the university was deliberating sanctions against him, with Smith telling John’s mother in a phone call Sept. 11 that she was going to “represent” him in “the best light possible” so he could return to school, he claims. He never received evidence either.

The guilty finding and one-year suspension did not describe the evidence or “the rationale underpinning the determination.” It wasn’t until he had asked for them several times that the university finally gave him a “one-paragraph response letter” more than a month later.

It vaguely and falsely claimed that the investigation had corroborated Jane’s story “in important respects” through “other evidence,” while John’s account “was inconsistent” with evidence, the suit claims.

This is despite the fact that she accused him of forcing her to perform “oral sex in a well-lit room in the presence of many people,” none of which was corroborated, “and the room objectively did not have dressers in the middle” that obscured the alleged assault “a few feet away” from others, as Jane claimed in her third account of the night.

Chose to ‘railroad a young Black man with no history of misconduct’

Jane’s friends also contradicted her story about being “dragged” down the hallway by John, saying they were walking “one-behind-the-other,” and her roommate denied he was on top of Jane in their room. “Roe’s claims remain completely unsubstantiated to this day”:

This decision was obviously contrary to the preponderance of evidence standard and demonstrated a dramatic bias in favor of the female accuser, even when that accuser’s claims constituted facially-implausible allegations that she had been subjected to two separate and consecutive instances of public sexual assault in front of dozens of peers and somehow none of those witnesses saw any of it happen.

LIU’s treatment of John versus Jane is so disparate as to suggest “strong” sex- and race-based bias in the proceeding, from flipping the burden of proof on him to yanking his scholarship without notice, he claims. It also failed to give a rationale when it rejected his appeal, “doubl[ing]-down on their choice to railroad a young Black man with no history of misconduct on a full scholarship to their institution.”

He and Jane were “similarly situated” parties because each accused the other of initiating sexual contact without affirmative consent, meaning both should be “equally credited” as alleged violations LIU policy. The university showed its “pattern or practice of racial bias” against John by claiming it could find no “negative motivat[ion]” for Jane to accuse him, despite her observed panic that the public kiss could harm her other relationship.

John’s racial bias claim also extends to LIU’s treatment of a white teammate who assaulted his girlfriend the same week Jane accused John. The university did not put the teammate through the same ordeal as John’s, instead holding “a meeting with their athletic teams about sexual assault.”

https://www.thecollegefix.com/believe-the-survivor-heres-11-times-young-black-men-were-railroaded-by-campus-sexual-assault-claims/

Campus Sexual Assault Sexual Harassment Title IX

Dual Track Adjudications: Recipe for Legal Disaster

Post author By saveadmin
Post date September 16, 2020

One month has now passed since the new Title IX regulation took effect on August 14, 2020.[1] According to this historic civil rights regulation, schools receiving federal funding must now provide students with, among other procedural protections, live hearings and the opportunity for real-time cross examination through an advisor. The Office for Civil Rights (OCR) has stated that the regulation only will be enforced as to conduct that occurs after the effective date,[2] and that schools are free to handle “non-Title IX” misconduct on their own terms.[3]

Some schools, as discussed by Teresa Manning at National Review, “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.”[4] Princeton and Tulane, for example, have created multiple disciplinary tracks where the regulation’s procedural protections are afforded for some types of sexual misconduct but not for others.[5] This is an attempt to defy the regulatory intent to restore due process protections on campus.

Unfortunately for these recalcitrant universities, there is another branch of government that vigorously enforces due process rights: the judiciary. Students often go to court if they believe they have been victims of Title IX discrimination, due process violations, or breach of contract. (Private universities are not subject to the Due Process Clause as they are not arms of the state. In many jurisdictions, however, the student handbook or code of conduct is a contract between the university and the student, and private universities can be sued for violating the procedures in those contracts.)

In these lawsuits, OCR’s limited regulatory definition of what is and what is not “Title IX Conduct” simply does not apply. Rather, schools are held liable if they discriminate “on the basis of sex.”[6] Indeed, whether the court uses the Yusuf framework of “erroneous outcome” and “selective enforcement,”[7] or the Purdue “plausible inference” standard to evaluate the allegation at the motion to dismiss stage, the fundamental question is whether the university discriminated on the basis of sex, not in which artificial “track” the discrimination occurred.

To this end, universities need to consider a string of milestone federal circuit court decisions issued in the last several months that were favorable to accused students.

First, the Third,[8] Eighth,[9] and Ninth[10] Circuits have now adopted the Seventh Circuit’s Purdue plausible inference pleading standard, which means that in four of the 12 regional circuits across the country, accused students now have a much easier time suing for Title IX discrimination. This is a dramatic change in the law; this easier standard did not even exist as of June 2019. Now, roughly a third of the nation’s federal courts have adopted it.

Second, the Sixth Circuit in Oberlin was the first circuit court to hold that the outcome of a disciplinary proceeding itself can be used as evidence of discrimination for purposes of Title IX.[11] This means that for the vast majority of students that do not have direct evidence of discrimination pre-discovery (because the university typically wants to keep its email communications secret), students in the Sixth Circuit can use their adverse outcome as a way to get to the discovery phase, allowing access to internal university communications, provided that the student is able to cast “grave doubt” upon the outcome.[12]

The bottom line is this: While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices. It will be better for universities to employ the procedural protections the regulation requires for all allegations of sexual misconduct, thereby limiting their liability exposure to costly and embarrassing lawsuits.

Citations:

[1] 34 CFR §106 et seq.

[2] https://www2.ed.gov/about/offices/list/ocr/blog/20200805.html

[3] Pennsylvania v. DeVos, No. 1:20-CV-01468 (CJN), 2020 WL 4673413, at *11 (D.D.C. Aug. 12, 2020).

[4] Teresa Manning, Title IX and Targeting the Two-Track Approach, NAT’L. REV., Aug. 24, 2020, https://www.nationalreview.com/2020/08/title-ix-universities-use-two-track-approach-to-avoid-new-rules/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-08-24&utm_term=NRDaily-Smart.

[5] Id.

[6] See, e.g. Doe v. Purdue Univ., 928 F.3d 652, 667-8 (7th Cir. 2019).

[7] Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994).

[8] Doe v. Univ. of Scis., 961 F.3d 203 (3d Cir. 2020)

[9] Doe v. Univ. of Arkansas – Fayetteville, No. 19-1842, 2020 WL 5268514 (8th Cir. Sept. 4, 2020)

[10] Schwake v. Arizona Bd. of Regents, 967 F.3d 940 (9th Cir. 2020)

[11] Doe v. Oberlin Coll., 963 F.3d 580 (6th Cir. 2020)

[12] Id. at 588.

Due Process Title IX

Biden v. the Courts on Title IX

Post author By saveadmin
Post date September 16, 2020

Appellate rulings have shredded colleges for denying due-process protections—the same protections that the Democratic nominee promises to revoke.

by KC Johnson, September 15, 2020

“Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group,” wrote U.S. Appeals Court Judge Raymond Kethledge in a late June opinion. “That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

Kethledge’s words revived a lawsuit filed by an Oberlin College student who claimed that his school had unfairly found him guilty of sexual misconduct. Over a 100-day period this summer, four appeals courts, including the Sixth Circuit in the Oberlin case, issued rulings expressing concerns that universities, however well-intentioned, had discriminated against an accused student on account of his sex, in violation of Title IX. The decisions, applying to 23 states, represent the latest fallout from the 2011 and 2014 federal guidance pressuring colleges to respond aggressively to what the Obama administration considered a national epidemic of campus sexual assault. The recommended procedures, however, too often denied accused students a meaningful chance to defend themselves. Obama administration officials 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.

Without recorded dissent from House or Senate Democrats, Democratic presidential nominee Joe Biden has promised to restore the guidance that these summer decisions have resisted. Neither Biden nor any congressional Democrat has acknowledged these recent Appeals Court rulings—nor, for that matter, any of the 189 state or federal rulings favorable to accused students since the 2011 policy change.

This silence might seem to suggest an obvious question to reporters: would Democrats, who have denounced the Trump administration for defying the rule of law, now pressure universities to defy multiple federal court rulings? Such a line of questioning seems unlikely, though, if only because none of the summer’s appellate decisions has received a mention from the New York Times. Or the Washington Post. Or the Los Angeles Times.

This lack of attention is unfortunate, since the Appeals Court decisions illustrate three themes typifying how colleges have mishandled Title IX adjudications. The first is a sense that some cases feature a preordained outcome—an indifference to innocence in situations where a guilty finding would satisfy the campus demand for vigorous prosecution. Oberlin was one such case, as was a case at the University of Arkansas, which led to an Eighth Circuit decision earlier this month. In both incidents, the accused student was found guilty even as the accuser significantly changed her story during the disciplinary process. The Oberlin panel attributed behavior to the accuser that didn’t meet the school’s definition of incapacitation; the Arkansas tribunal failed to find the accusing student incapacitated during the incident itself, or in a way that the accused student could have recognized. No wonder the Eighth Circuit deemed the Arkansas panel’s decision “unexplained.”

The Appeals Court rulings also addressed procedural irregularities that often beset Title IX adjudications as a whole. Ignoring requirements for “fair” procedures under Pennsylvania law, the University of the Sciences, a private institution in Philadelphia, expelled an accused student without a hearing. (In a May 29 decision, the Third Circuit revived the student’s lawsuit.) Arizona State University likewise avoided a hearing for an accused graduate student—even as a professor improperly shared confidential information from the university’s preliminary investigation with other students. (In a July 29 decision, the Ninth Circuit revived the student’s lawsuit.) While Oberlin did permit a hearing, the student’s college-appointed advocate left in the middle of the proceedings, leaving him unrepresented. Soon thereafter, the advisor retweeted his confidence in all sexual assault survivors.

Given the seriousness of sexual assault allegations, it might seem self-evident that universities should employ formal procedures that ensure the rights of both parties. But in the Title IX realm, it has become an article of faith that increased reporting by victims requires a process that shields the complainant from rigorous questioning by the accused student or his lawyer.

Finally, universities were under governmental pressure for allegedly not being tough enough on the accused in previous sexual assault cases and not arbitrating the cases fairly. In such an environment, the Eighth Circuit’s Steven Colloton wondered, “Why wouldn’t it be plausible for [the university] to say, ‘Well, we’ll find more men responsible, and maybe we’ll go light on the punishment to kind of smooth things over?’”

Judge Colloton’s question identified the crucial difference between courtroom and campus processes: a judge or jury cannot have a connection to parties in a criminal or civil case, but the university always has a stake in a Title IX outcome. Sometimes, accused students get favorable treatment, as in high-profile allegations against star football players at Florida State or Louisiana State. Most accused undergraduates, however, aren’t Heisman Trophy winners whose continued enrollment benefits the university financially. Their fate more closely resembles that of the Arkansas student, whose school’s chief interest seemed to be stopping the bad publicity from campus protests. In theory, the new federal Title IX regulations, which require colleges to use fairer procedures, will protect against the injustices identified in the recent appellate decisions. But political, legal, and university opposition to the regulations cloud their future. It may be that federal courts will need to continue to correct campus processes that too often seem indifferent to justice.

KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.

https://www.city-journal.org/biden-v-courts-title-ix

Campus Sexual Assault Sexual Harassment Title IX

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

Post author By saveadmin
Post date September 16, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

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

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

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

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

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

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

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

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

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

Links: