Category: Title IX

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

There are many variations on the use of the single investigator, where the investigator chosen by the college will reach her conclusion of guilt on her own or where the investigator will present her conclusion to a panel, which will then reach its decision as to guilt. As Doe’s lawyer, Josh Engel, wrote in his brief, these amount to distinctions without any real difference.

In this model, an institution’s designated Title IX investigator interviews witnesses identified by the parties and reviews evidence provided by the parties. There is no independent effort to obtain information from third parties or other sources. The investigator then draws a conclusion about whether the accused student has violated school policies. There is no hearing where a party can present evidence and cross-examine adverse witnesses in front of a neutral fact-finder. The investigator literally serves as the police, judge and jury.11

11 Except, of course, that the police usually conduct more thorough investigations.
Here, an attorney merely recorded statements and gathered limited evidence voluntarily
provided by interested parties. This is not an “investigation” of a serious allegation as
the term would be understood by most law enforcement officers.

From the outset, the deck is stacked. It doesn’t have to be, but consider the qualifications of people who seek the job of Title IX investigator, and the people whom institutions select to fill that function. They tend to be people deeply involved with and sensitive to sexual misconduct against women on campus, usually with long histories of activism and proven dedication to the elimination of sexual misconduct against women.

This isn’t to say they lack the qualifications on paper, or lack the ability to present their findings in a gender-neutral fashion, but that their perception of the problem that guides their investigation is grounded in an ideological belief that precludes any fair assessment of the facts. They are dedicated to finding the facts, aggregating and presenting them in such a way as to assure the only “correct” outcome: guilt.

These Title IX investigators interview the accuser and accused, together with those witnesses they deem relevant. They gather evidence they deem relevant. They pursue avenues they deem relevant. If they deem only that which proves guilt to be relevant, then they ignore witnesses and evidence that don’t. It’s left entirely in their hands. When the only evidence presented is evidence of guilt, the outcome isn’t a mystery.

The rhetorical argument, that if Title IX investigators are fair and neutral, it will all turn out swell, is no more logically sound than the old proverb, “If wishes were horses, beggars would ride.” When the entirety of a process is placed in the hands of one person, who then presents conclusions based only on the evidence that supports the conclusion and omits all the evidence that shows it to be baseless or biased, it easily creates the appearance of fairness without any of the substance. Add to this the sort of person hired to play the role of Title IX investigator and the problem is abundantly clear.

So why, then, did 17 law professors file an amicus brief in support of the University?

Civil rights investigations rely primarily or exclusively on professional investigators to conduct a fact-finding process to determine whether and to what extent an accusation of sexual harassment or gender-based violence is accurate. Investigators gather documentary and physical evidence, as well as conduct separate interviews with and make credibility determination about the parties (i.e. the complainant and respondent) and any witnesses. They then synthesize the evidence gathered and write an investigative report where they make factual findings based on the evidence gathered.

Sounds rather warm, fuzzy and official, but the essence of their argument was better captured in their summary:

Non-adversarial, civil rights investigation methods advance comprehensive prevention of this harassment and violence more effectively than do the live, adversarial hearing-based methods that John Doe is demanding that Appellee use. Comprehensive prevention of sexual harassment and gender-based violence is a public health-based approach that incorporates primary, secondary, and tertiary forms of prevention. Civil rights investigation methods function as much more effective secondary and tertiary prevention than adversarial, live hearings do.

The first give-away is the use of the word “non-adversarial,” which replaces what the model should be called in the affirmative: Inquisitorial. If the inquisitor deems the accused guilty, then he is, and the accused is denied the ability to challenge the inquisitor’s conclusions because the conclusion has already been decided.

But the second idea, buried in this summary, is that neither the finding nor the sanction is about the accused, but about “public health” and “prevention.” In other words, the guilt of the accused isn’t particularly important to the cause, as promoting the notions that accusations will be inherently believed and accusers will be severely sanctioned serves the greater good of eradicating sexual misconduct. As for the accused, he’s just collateral damage in furthering the civil rights outcome.

While most arguments about the single investigator model tend to revolve around the mandates of due process and fundamental fairness, whether under the Constitution, or express or implied contractual terms, few cases directly confront the inherent impropriety of making one individual “judge, jury and executioner.” How much procedural due process is required, and how that can be achieved in a grossly sub-optimal setting such as a campus sex tribunal, raises one question. But there should be no question that the inquisitorial model, no matter how one characterizes the virtues of the inquisitor, invariably fails to provide the accused with a fair process. But as the 17 law profs argue, that was never the purpose.

On March 27, the Office for Management and Budget completed its roughly five-month review of the Department of Education’s proposed regulations on Title IX, paving the way for the regulations to be finalized. Unsurprisingly, prominent opponents of the regulations, who have opposed the proposal at each and every step, have seized on the coronavirus crisis to argue that the pending regulations should be delayed. The Department of Education should ignore these misplaced calls and finalize the regulations as soon as is practicable.

The classic legal maxim that “justice delayed is justice denied” is applicable here. The status quo with respect to campus Title IX proceedings is unacceptable. Institutions too often harm complainants by sweeping allegations under the rug or by handling their complaints with insufficient care, while the railroading of accused students is also well documented. (The recent OCR findings concluding its Title IX investigation at Pennsylvania State University demonstrate that sometimes a school violates the rights of both parties simultaneously!) Neither of these injustices should be allowed to persist.

Indeed, some of the same victims’ rights advocates that are calling for the proposed regulations to be delayed are simultaneously arguing that institutions that pause Title IX proceedings during the coronavirus pandemic are “prolonging the trauma” experienced by complainants. Last week, for example, one set of those advocacy groups, including prominent organizations like Know Your IX, Equal Rights Advocates, and the National Women’s Law Center  wrote the following in an open letter to institutions:

[S]chools’ logistical obstacles are not a sufficient justification for forcing students to forgo their right to a prompt and equitable process to address and redress sexual violence and other forms of sexual harassment. Meaningfully enforcing civil rights is not an obligation that dissipates in the face of institutional hardships–even during these unprecedented times.

It’s clear that these advocates think that institutions are capable of dedicating resources toward enforcing Title IX, even in this challenging environment. Title IX coordinators seem to agree. One Title IX coordinator told The Chronicle of Higher Education that his university’s “Title IX office remains fully operational.” Another pointed out that her Title IX office was able to use technology like videoconferencing to proceed.

If these professionals can figure out how to proceed with the pending cases, surely they can also review their policies for compliance with new regulations and make adjustments accordingly. Moreover, if institutions are going to continue to adjudicate these cases, they cannot cite the pandemic as a justification for continuing ongoing practices that may be violating students’ rights.

Critics who argue that now is not the time to reform Title IX practices are inherently arguing that even if what institutions are doing is unjust, now is not the time to address these problems. But the proposed Title IX regulations are not the only potential legal authority mandating changes. A growing list of schools are on the losing end of judicial opinions blasting the institutions’ procedures. Does anyone think the pandemic should result in stays in all of those cases? Should we presume that the current world situation should be grounds to stay all judicial orders — even those in other contexts — requiring the government to halt the revision of policies that violate constitutional rights? If not, then why only in this context must this type of institutional actor be allowed to continue unjust practices?

The latest calls to pause the regulations are nothing more than thinly veiled attempts to delay any changes in hopes that the proposal may yet be derailed by changes in political circumstances. But the moral requirements of justice do not change with the political winds. Indeed, this is most important to remember in times of crisis, when excuses for turning a blind eye to violations of rights are so tempting. Courts and other government actors cannot hide behind the pandemic to justify continuation of abuses.

The argument for delaying the finalization of the regulations also implies that institutions will have to scramble to revise their policies overnight. This is not true. The proposed Title IX regulations were first published on Nov. 29, 2018, which means that schools have already had nearly 500 days of advance notice of these proposed changes to consider potentially necessary policy revisions.

Further delay wouldn’t help institutions anyway. The sooner the proposed regulations are finalized, the sooner institutions and their communities will have certainty with respect to what will be expected of them. This clarity will be to everyone’s benefit.

Unlike ‘wall-to-wall coverage for Brett Kavanaugh, Donald Trump’

Leading Democratic presidential candidate Joe Biden made his name in the past decade as a tireless champion of denying due process to students accused of sexual misconduct, devising the Obama administration’s so-called guidance that it treated as binding regulation.

Now that he’s been accused of sexual assault by a former employee – an accusation that drew little legacy media coverage – some Democratic student groups are showing their consistency on the issue.

The University of Pennsylvania’s Penn Democrats and Penn for Bernie demanded that Biden’s campaign and mainstream media outlets investigate the allegations by Tara Reade, his former Senate staffer, The Daily Pennsylvanian reports.

Left-wing outlets Vox and The Intercept have run lengthy articles in the past week on the cold shoulder Reade has received since she aired a more narrow version of her allegations a year ago, accusing Biden of inappropriately touching her shoulder and neck.

They were largely in line with allegations by a former Nevada lawmaker, Lucy Flores, but the sudden wave of claims against Biden were not enough to make Penn reconsider naming its new Washington, D.C.-based center after him.

MORE: Penn silent on whether it will rename Penn Biden Center

If the elite Ivy League Democrats are any indication, perhaps Biden should start worrying that he’s losing the narrative:

In a written statement to The Daily Pennsylvanian, Penn Dems executive board expressed that they take allegations of sexual assault “extremely seriously,” and reference their status as a group certified by Penn Violence Prevention’s Anti-Violence Engagement Network.

“Tara Reade deserves to be heard and journalistic organizations have an obligation to investigate her allegations,” the statement read. “VP Biden should also address them further immediately.” …

Co-director of Penn for Bernie and College sophomore Jack Cahill said sexual assault allegations should always be treated seriously, regardless of political party.

“If you believe in women, and if you want to hold people accountable, you have to be morally and ideologically consistent, regardless of whether it’s somebody you know, or whether they have a D or an R next to their name,” Cahill said. ‘“If Bernie Sanders had a credible allegation against him, I would be very vocal, Penn for Bernie would be very vocal, and calling for an investigation about this.”

MORE: Biden compares advocates of due process to ‘Nazis’

One of Cahill’s colleagues is even more vocal, chastising reporters for ignoring accusations against the more mainstream Democratic candidate:

Emily Liu, a College junior and Penn for Bernie’s Outreach Director, criticized the lack of coverage on Reade’s allegation in major media outlets. At the time of publication, Reade’s allegation against Biden has not been covered by The New York Times, The Washington Post, or CNN.

“I haven’t seen basically any major media outlets cover this, the way there was wall-to-wall coverage for Brett Kavanaugh, Donald Trump, basically anyone possible,” Liu said. “The standard should be applied evenly across the board, especially from organizations like CNN or Time’s Up who have a responsibility to hold the powerful accountable.”

Time’s Up – a nonprofit within the anti-due process National Women’s Law Center – turned down Reade’s request for legal help when she wanted to expand her allegation. It cited its tax-exempt status and Biden’s political candidacy, but The Intercept pointed out another coincidence: The managing director of the nonprofit’s PR firm is a top Biden advisor, Anita Dunn.

A tax professor at Loyola Law School Los Angeles discounted the tax-exempt status rationale, telling the media outlet that Time’s Up is “allowed to continue to do what they have always done” with regard to evaluating which cases to take. (Some colleges also ban students from expressing political messages, disingenuously citing their tax-exempt status.)

Biden’s campaign has denied the allegation, telling reporters (for perhaps the first time ever) that they “have an obligation to rigorously vet” claims by sexual assault accusers.

Those making this argument are taking advantage of a crisis to try to keep due process out of college campuses.Many disingenuous things have been said during the coronavirus crisis, some of them by the president of the United States himself. But right near the top must be three letters issued last week — from the American Council on Education (ACE), activist groups led by the National Women’s Law Center (NWLC), and 18 Democratic attorneys general — calling for the Department of Education to halt the release of long-anticipated regulations that will restore due process to the handling of sexual-assault cases on college campuses. DeVos’s proposed rule would ensure basic rights for accused students — notice, access to evidence, a live hearing, and the ability to have a lawyer or advocate cross-examine adverse witnesses — that are often or almost always absent in the current Title IX process imposed by Obama-era guidance. That system has yielded more than 170 university setbacks in lawsuits filed by accused students in state or federal court.

In its letter, ACE argued that “at a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis.” The NWLC letter spoke similarly, but leaned harder on the supposed harm to students: “Finalizing the proposed rule would also unnecessarily exacerbate confusion and uncertainty for students who are currently in pending Title IX investigations and hearings, which have already been delayed and disrupted by the pandemic.” The letter from the attorneys general expressed similar language.

First, the universities have known for more than 16 months — since November 2018 — that these regulations were coming. They have had ample time both to tell the government what they think of the regulations and to start planning for their inevitable release. If some of them have failed to plan ahead, hoping that the regulations would never be released or that a lawsuit by victims’ groups would enjoin them immediately following their release, that isn’t the fault of the coronavirus.

Second, do you know who’s going to have a lot of time on their hands in the next six months?  Title IX coordinators. Why? Because the number of Title IX cases is about to drop precipitously.

So this is, in fact, the perfect time for the Education Department to implement the new regulations.

And you don’t have to take our word for it. ACE president Ted Mitchell called these new regulations “a step in the wrong direction,” saying they would “impose[] a legalistic, prescriptive ‘one-size-fits-all’ judicial-like process” on universities. The NWLC was even more blunt, calling the proposed regulations “disastrous,” “confusing and illogical,” and “devastating for survivors” (emphasis in original), and even opining that “‘due process’ is clearly a red herring.”

This is all nonsense. The new Title IX regulations may wind up being Betsy DeVos’s greatest legacy. They will finally restore balance and fairness to a process that, due to the Obama administration’s overreach, had little of either.

The time is now. Let’s hope the administration issues these regulations soon and ignores this galling attempt to twist a genuine crisis for political ends.

In its desire to be a mecca of political correctness, the University of Michigan continues to prioritize the rights of some students over others.

And that does not fly in the courts, thanks to the U.S. Constitution, which demands free expression and due process for everyone.

UM’s resistance to ensuring its codes of conduct abide by that framework keep landing the university in court.

It got slapped once again by a federal judge this week.

In Doe v. University of Michigan, Judge Arthur Tarnow rejected UM’s effort to game the ruling in Baum, which UM President Mark Schlissel calls “wrong,” by creating an “interim” rule after the case was brought and then claiming the case was moot.

The university then argued that Doe’s case was moot, since it would now adjudicate his case using the Interim Policy. The district court noted, however, that voluntary cessation of unconstitutional conduct is alone insufficient to moot a claim. Rather, a claim is only moot if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” And because the university continued to defend its old policy — among other things, the university’s president explicitly declared that “the Sixth Circuit got it wrong” in Baum — the court held that the university had “failed to meet its burden of proving that the challenged policy will not be re-enacted.” Doe’s claim, therefore, was not moot.

There is a belief that law is somehow magically self-effectuating, that if a court holds that the law requires that something be done, it will be done. After all, that’s the law. Isn’t that how law works? The UM case proves otherwise.

The judge says ignoring court rulings is a pattern with UM. He cited a 2018 free speech case brought against the university by Speech First. That lawsuit targeted UM’s bias response team, which encouraged students to spy on each and report behavior that made them feel uncomfortable. The 6th Circuit Court determined that even though the university amended its policy following the suit it had done so in a “disingenuous” manner.

The judicial branch was characterized as the “least dangerous” as its ability to compel people to comply with its orders was severely limited. It relied primarily on the acceptance of the courts as legitimate arbiter of law so that people complied because they chose to apply. Beyond that, the judiciary relies on the kindness of strangers from the executive branch, because they have the guns.

But while Michigan didn’t want to appear not to comply, it simultaneously chose not to comply because, well, it didn’t want to. It didn’t agree, as if this is a debate between peers with the Sixth Circuit (and Judge Tarnow) on one side and UM president Schlissel on the other, both sides being entitled to their own opinion and, therefore, entitled to agree to disagree and go about their lives doing what they believe to be the right thing.

It wasn’t as if Judge Tarnow could shut down University of Michigan for its failure to adhere with the rulings. It’s a huge public university, with almost 45,000 students. Should he shut down UM, deny those students an education? Should he impose Draconian sanctions, to be paid from student tuition or public monies? What possible effective solution would serve to drive home the point that UM wasn’t above the law without doing significant (and likely ineffectual) harm?

From its inception to the University’s appeal in Baum, the [University of Michigan] was in violation of Circuit precedent. Five months before publishing its 2018 Policy and likely during its drafting, the Sixth Circuit held that cross-examination was “‘essential to due process’” only where the finder of fact must choose “‘between believing an accuser and an accused,’” and implored universities to provide a means for decision makers “to evaluate an alleged victim’s credibility.” Cincinnati, 872 F.3d at 405-06. The Court of Appeals further emphasized that deciding the plaintiff’s fate without a hearing and cross-examination was a “disturbing . . . denial of due process.” Cincinnati, 872 F.3d at 402. Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity. (Emphasis added.)

Subsumed in the “et al.” portion of the caption are numerous individual defendants who either participated in the underlying conduct by UM or were decision-makers in the university’s policies. By denying them “qualified immunity,” they can potentially be held individually liable for the deprivation of constitutional rights suffered by the plaintiff. Mind you, this doesn’t mean they will, or that the school won’t pay any judgment imposed as a consequence of the case, but it theoretically exposes the individual defendants to liability.

Is this the right answer? On the one hand, the individual defendants who were integral to the due process violations, such as the Title IX coordinator and investigator, were doing what they were told to do, what their job was understood to be. They weren’t the policy makers here, and their performance of their jobs, which they may well have been more than happy to do with gusto, was as the school’s administration required of them.

On the other hand, the policy makers weren’t determined to go forth and violate constitutional rights, but were crafting policy for purposes that were, based upon their understanding and belief, supportive of the victims of rape, sexual assault and sexual harassment. What could be wrong with such benign, if not laudable, goals?

As more suits are brought, more rulings obtained, holding that campus sex tribunals involve unconstitutional deprivations of due process to accused male students, some colleges will comply, but others will simply resist, firm in their belief that they are on the right side of history and, even if courts don’t agree, are doing what they have to, what they should, do to protect women. They are, in essence, challenging the courts by saying “make me,” and the reality is that the “least dangerous branch” doesn’t have any really good magic to do so.

Still no images of boys on the brochure

Grand Valley State University opened its STEM summer camp for girls to all students in order to resolve a Title IX complaint filed by a professor at another university.

It’s the latest victory for University of Michigan-Flint economist Mark Perry, who shared the documents resolving the complaint with The College Fix. He said he has now obtained more than a dozen “favorable” outcomes – three of them at a single university – in response to his sex discrimination complaints.

The resolution agreement with the Department of Education’s Office for Civil Rights, dated Feb. 4, binds the public university in Michigan to “modify the Science,Technology & Engineering Preview Summer (STEPS) camp to ensure all of the University’s activities to the 2020 STEPS are open to all students regardless of sex.”

OCR’s Cleveland office notified GVSU’s deputy general counsel on Monday that its investigation had concluded, but specified that OCR will still monitor compliance with the agreement. It received the university’s first “monitoring report” Feb. 26.

Perry has spent the past four years targeting universities for operating programs that exclude men, from scholarships and faculty awards to various academic “camps.” Ohio State University opened several programs to men just last month to resolve another Perry complaint.

Having filed 108 federal sex discrimination complaints, Perry has noticed a pattern across 13 resulting agreements between OCR and targeted schools, he told The Fix in an email. The professor is now “confident” that OCR “is not willing to tolerate any exceptions to sex discrimination in violation of Title IX, including sex discrimination against men.”

MORE: Perry complaint prods OSU to open women-only programs to men

Now has five gender options

Perry filed the complaint against GVSU in January 2019. OCR’s resolution agreement says the university website described the middle school girls’ summer camp as “a day-camp preview of science, engineering and technology for young ladies between the 6th and 7th grades.”

The university contacted OCR after it received Perry’s complaint, sharing a July 15 memo that said the 2020 camp will have “no restriction on gender as a prerequisite for participation” and that marketing materials would be updated. OCR also confirmed that the university added “check-boxes” for male and female applicants.

But GVSU was slow to change other elements of the website, according to OCR. The agency “had concerns” in a January review “that the University’s promotional materials did not convey that the program is open to students regardless of sex.” For example, all the photos on both the website and the application brochure “depicted female campers.”

Now the website makes clear that the camp accepts all student applicants. As a result, the word “Girls” has been stripped from the program name, and the new website for the program now boasts in large font “**STEPS has changed their application policy to be gender inclusive. No applications will be denied based on gender identity.**”

The 2020 brochure still has no discernible images of male students, though. A new “Gender Identity” field offers female, male, “Non-binary/third gender,” “prefer to self-describe” and “prefer not to say.”

The Fix asked the university Thursday about its legal review of the previously all-girls summer camp before it launched. Spokesperson Nate Hoekstra wrote in an email that he would “pass this along to the team who works on Title IX issues.”