Rep. Sheila Jackson Lee, D-Texas, speaks as she departs a deposition before the House Judiciary Committee by Peter Strzok, the FBI agent facing criticism following a series of anti-Trump text messages, on Capitol Hill, Wednesday, June 27, 2018 in Washington. (AP Photo/Alex Brandon) ** FILE ** By Stephen Dinan– The Washington Times – Wednesday, January 23, 2019
She also lost her post as the top Democrat on a Judiciary Committee’s crime, terrorism and homeland security subcommittee, which she had been in line to chair in the new Congress.
Despite being the third-ranking Democrat on the Judiciary Committee, she does not have any subcommittee chairmanships, according to the list Democrats announced Wednesday afternoon.
Judiciary Chairman Jerrold Nadler said Ms. Jackson Lee made a decision to “voluntarily and temporarily step back” from the subcommittee chairmanship so as not to derail the panel’s work.
“This decision does not suggest any culpability by Representative Jackson Lee,” Mr. Nadler, New York Democrat, said. He said Rep. Karen Bass would serve as chairwoman “until the matter is resolved and Representative Jackson Lee can resume the role of chair.”
The New York Times reported that key activist groups had said in the wake of the rape-retaliation allegation that they could not work with the Texas congresswoman on reauthorizing the Violence Against Women Act, which is a major piece of work looming for the panel.
Several outlets reported Ms. Jackson Lee’s decision, under pressure, to step down from the CBCF, which is the nonprofit arm of the Congressional Black Caucus, the symbolically powerful group of black lawmakers on Capitol Hill.
The moves came a week after a woman, identified only as “Jane Doe” in her lawsuit, said she was raped by a CBCFemployee in 2015, when she was a 19-year-old intern and her attacker was the 30-year-old coordinator of the CBCF’s intern program.
Her lawsuit contained lurid details and suggested a police investigation ensued, including taking the alleged attacker’s DNA, though it does not appear a prosecution took place.
Ms. Jackson Lee was not chair of the CBCF at the time the woman says the rape occurred but became chair in 2017.
The Jane Doe plaintiff was also hired in Ms. Jackson Lee’s office in late 2017, and at some point last year, told the congresswoman’s chief of staff that she planned to pursue legal action against the CBCF for the trauma she suffered.
The woman says she was soon fired from Ms. Jackson Lee’s office, and says the budget and work performance explanations given don’t jibe with the facts. She says she believes the firing was retaliation.
Ms. Jackson Lee’s office last week denied the wrongful termination and said it was not involved in the events the Jane Doe plaintiff described from 2015.
Her office did not respond to a request for comment Wednesday on her ouster from her leadership posts.
The Department of Education said Thursday it would extend the public comment period for a proposed Title IX sexual misconduct rule. Technical issues have made the website that accepts public comments on federal rules unavailable since Wednesday.
Politicofirst reported the issues on the site, regulations.gov, which a banner message blamed on the ongoing government shutdown before federal officials said a technical glitch was to blame.
“The department will extend the public comment period to ensure that the public will have had 60 days in total to submit comments on this proposed rule using the Federal eRulemaking Portal,” said Liz Hill, a spokeswoman for the Education Department.
Comments on the new campus sexual misconduct rule were due by Jan. 28. The new closing date will be determined when the website is back online.
The U.S. Dept. of Education has proposed new guidelines for colleges to address sexual misconduct and sexual harassment, known as Title IX.
MICHAEL COGHLAN / CREATIVE COMMONS / FLICKR.COM/PHOTOS/MIKECOGH
While I’m not a fan of most of Betsy DeVos’s reforms, when it comes to Title IX, I’m in full support.
The proposed rules do help the accused by restoring their fundamental right to cross-examine their accuser. For students facing expulsion and being branded as sexual predators, this is no small thing.
But victims would also be empowered. They’d be able to opt to participate in a facilitated conversation in which the harm is identified and responsibility taken.
“I just wanted him to hear me,” explained one woman who participated in such a conference.
“I realized that saying sorry wasn’t enough,” said one repentant man.
The old guidelines prohibit this option.
And there’s another benefit for victims. Right now, the very people who might provide much-needed counsel are deputized as mandatory reporters. Should faculty overhear anything suspicious at the salad bar or in a personal essay on dorm life or wherever, we’re required to report it immediately to the Title IX office.
If the student says she doesn’t want to report, we are to override her resistance.
Any ambivalence on her part, we’re told at annual trainings, is a symptom of trauma. Under no circumstances are we to talk with a student about the incident, as we might re-traumatize her.
The proposed rules give colleges the chance to retire the undercover army of sex police. Teachers can once again assume the essential role of mentor, exploring options rather than betraying a student’s confidence.
For victims, these changes are enormous. Instead of being treated as if they’re too traumatized to act on their own behalf, they’re given the opportunity to think and make decisions for themselves.
Our nation’s undergraduates need us to believe in their capacity to grow and change. Our society needs adults who’ve been given the support to learn from their mistakes, and to tell others clearly when boundaries have been crossed.
And we all need more opportunities for honest conversations about the pitfalls of passion.
The DeVos guidelines help us to get there.
Meg Mott has studied Title IX, and teaches politics at Marlboro College in Marlboro, Vermont.
Does DeVos see ‘every hearing as a Perry Mason episode’?
Multiple appeals courts at both the state and federal level have explained the importance and necessity of cross-examination in campus sexual-misconduct proceedings.
They often invoke a quote by the famed American jurist Henry Wigmore, cited in a 1972 Supreme Court ruling, that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”
A high-profile Title IX consulting firm doesn’t agree, at least when cross-examination is used in its field.
In its latest “tip of the week,” the National Center for Higher Education Risk Management mocks Education Secretary “Betsy DeVos and her supporters” for supposedly arguing that cross-examination is “the panacea” for the problems in Title IX proceedings.
The Department of Education’s proposed Title IX regulation, which is open to public comment for another two weeks, would require these proceedings to allow cross-examination and exclude the testimony of any party or witness that refuses to undergo cross-examination.
The core problem in these proceedings “is actually rooted in bias and lack of training,” NCHERM’s unsigned six-page letter reads:
[The Education Department] believes – incorrectly – that producing more and better evidence in hearings will overcome the biased and deficient analysis that is plaguing those proceedings. Phooey. The solution isn’t about evidence. More evidence will not overcome bias, because bias inherently causes decision-makers to ignore and overlook evidence. Believing otherwise is wishful thinking. Producing more and better evidence (the purported goal and purpose of cross-examination) simply provides those who are biased more to ignore and overlook.
The Title IX field is riddled with “implicit bias” and those who make decisions in proceedings often possess “deficient analytical skills,” which requires “more and better training,” the group argued. When bias and deficient analysis intersect, “that multiplies the problem into confirmation bias,
which is much more difficult to unravel.”
In a paragraph that shows the group’s underlying disdain for advocates of due process, NCHERM alludes to the “greatest legal engine” quote:
Perhaps [DeVos and her supporters] see every hearing as a Perry Mason episode, replete with an opportunity to break the witness and make them confess the truth? This kind of superstition results from watching too many TV courtroom dramas and not enough real time in actual courtrooms or educational administrative hearings.
The conceit of humans believing they are lie detectors undergirds the belief that crossexamination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.
The “tip” goes on to suggest talking points for readers when they submit comments on the notice of proposed rulemaking, including the “high risk of traumatizing the parties” through “adversarial” elements.
It asks what will happen when parents can actively represent their children in proceedings, rather than sit silently as hearing panelists and campus prosecutors grill the parties:
I have seen Mom in this process. Many times. Mom is not genteel. Mom is not trained. Mom is a momma bear doing anything she needs to protect her cub. Maybe a student needs such a zealous advocate, but when the claws come out, civility is forgotten. The same can be true for Dad; he has claws, too.
The tip also suggests that colleges will have trouble recruiting faculty and staff to serve as hearings officers and chairs when those people will be “doing battle with skilled attorneys on how a question should be phrased, whether it should be posed, and whether it was sufficiently answered.”
But it returns at the conclusion to emphasize that “this entire cross-examination blueprint could significantly chill victims from ever deciding to report sex discrimination and seek formal redress” – and “that seems to be” the intention of the department’s Office for Civil Rights.
Read the tip of the week, which was shared by the due-process group Stop Abusive and Violent Environments as a “good laugh.”
The Supreme Court has lauded cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Suzanne Goldberg overlooks the Supreme Court’s praise for cross-examination, attributing this praise instead to a “1904 legal treatise” (“Keep Cross-Examination Out of College Sexual-Assault Cases,” The Chronicle, January 10).
But it is not just long-dead legal writers who view cross-examination this way. The Supreme Court still does, as it declared in its 1999 ruling in Lilly v. Virginia.
Goldberg wants to keep cross-examination out of campus sexual-assault and harassment cases. But doing that can violate state and federal law.
Some state courts have ruled that their state’s Administrative Procedures Act gives accused students the right to cross-examine their accuser. Federal law often confers this right as well. In Doe v. Baum (2018), a federal appeals court ruled that an accused student had a due-process right to cross-examination of his accuser in a college discipline hearing. That court ruling, just like the Supreme Court’s Lilly decision, touted cross-examination as ”the greatest legal engine ever invented” for uncovering the truth.
Colleges cannot ignore these court rulings in favor of accused students’ statutory and constitutional rights, even if Goldberg disagrees with them.
Hans Bader
Former Education Department Lawyer
Arlington, Va.
An analysis of annual reports from 48 colleges in 21 states reveals that 52.7% of campus sexual assault adjudications resulted in a finding of “not responsible” for the accused student – see table.
These online reports identify the outcomes for allegations of sexual assault hearings. The link to each report is embedded in the name of the College or University, first column in the Table, below. The information comes from both private and public institutions nationwide.
The analysis includes only reports that specifically identify the outcomes for adjudications involving allegations of sexual assault. The information does not include other potential conduct code violations, such as sexual harassment and sexual exploitation.
This finding is similar to a 2017 NCHERM report titled “Due Process and the Sex Police” that stated, “annual summaries show that they are finding no violation of policy 60% of the time in their total case decisions.”
Most institutions review sexual misconduct cases based on the preponderance of evidence standard. In practice, this standard is essentially a measure of credibility of the statements of the accuser and the accused. The fact that a larger percentage of students was found not responsible demonstrates that most allegations investigated by colleges are determined to be unfounded.
Table: Outcomes of Campus Adjudications of Sexual Assault Claims at 48 Colleges
i Decisions are mostly based on formal procedures. Exceptions for a few schools (noted below) include allegations that were screened out as not rising to the level of a policy violation. Few schools report those data, yet it is likely that many schools screen out allegations that do not rise to policy violations, suggesting that the percent not responsible would be larger than calculated here if schools reported the total number of allegations screened out. The number of decisions is usually the number of allegations, unless the report provides the number of respondents. Multiple allegations per respondent were more frequent than multiple respondents per allegation; hence the total number of decisions is somewhat greater than the number of respondents.
ii Enrollment data are from the US Dept. of Education, 2018.
iii The data represent one year from each school, usually the latest academic or calendar year for which a report is available (except MIT with 4 years).
iv If the large number of not responsible findings for this small school are considered an outlier, deleting the school’s data changes the total not responsible to 50%.
v Six “otherwise disciplined” students tallied as responsible in this table.
vi Unwelcome sexual touching and Exposure are not included in OSU’s definition of sexual assault.
vii Sexual battery is included here as sexual assault for SJSU.
viii Some of Stanford’s outcomes are ambiguous: 1 of 2 non-hearing resolutions were counted as responsible, the other is not clear and was not counted; 5 student decisions had an unspecified split between “no charge” and formal findings of not responsible. All 5 were counted as not responsible.
ix Count of 9 outcomes listed as “Available evidence did not support a charge of policy violation or necessitate further university investigation” were tallied here as not responsible.
x Sexual assault definition doesn’t include sexual abuse (non-consensual sexual contact).
xii Not responsible total includes 1 screened out allegation.
* These 7 schools may have included a small number of allegations involving employees, teasing this out was not possible with the reported information.
Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault
WASHINGTON / January 7, 2019 – A report released today analyzes appellate court decisions on campus sexual assault, and concludes “the findings of the 14 appellate decisions are generally consistent with, and substantially enhance the legal basis for the provisions contained in the proposed Title IX regulations.”
The report analyzes 14 appellate rulings that were at least partly favorable to the accused student, and were issued from 2013 to 2018. Of the 14 decisions, eight were rendered in 2018 alone.
Among the 14 cases, five were decided by federal appellate courts and nine were resolved by state appellate courts. Four cases came from California appellate courts, three rulings from New York courts, and three from the 6th Circuit Court. Additional rulings came from the 1st, 2nd, and 4th Circuit Courts, and the Washington state appeals court.
The decisions highlighted due process deficiencies in eight areas: Insufficient hearing process, lack of cross-examination, insufficient notice, inadequate investigation, conflicting roles of college officials, improper use of witness testimony, potential sex bias, and misuse of affirmative consent policies.
The report then compares the appellate Judicial Findings with the due process provisions enumerated in a recent Notice of Proposed Rule-Making issued by the Department of Education (1). The analysis documents a general consistency between the appellate court rulings and the proposed regulatory changes.
Last week, the California Court of Appeal issued another decision in favor of the accused student. The court chided the University of Southern California for its reliance on a single-investigator approach, noting this practice “ignores the fundamental nature of cross-examination,” which is “incompatible” with any credible effort “to uncover the truth.” (2)
The SAVE Special Report is available online (3). A summary of the 14 cases is also available (4).
SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org
Judges question ‘practical efficacy’ of fair hearing when single official does everythingThe era of serious punishments based on a single official’s investigation is over at the University of Southern California.
For the second time in less than a month, a California appeals court ruled that the private university denied a student accused of rape a fair hearing, and that the same Title IX official conducted a shoddy investigation.
The three-judge panel ordered a lower court to remove USC’s findings against “John Doe” from his record, and awarded him his costs on appeal. The university will also have to create procedures to allow accused students to cross-examine both their accusers and witnesses in some form.
This went even further than the previous appeals panel in the December ruling against USC, which explicitly declined to rule whether accused students have a right to cross-examine anyone beyond accusers.
“When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” said the opinion, written by Justice Thomas Willhite.
Challenging the December appeals panel even further, Willhite questioned whether the right to a fair hearing has “any practical efficacy” when a single official acts in the “overlapping and conflicting capacities” of prosecutor and tribunal.
“Under such circumstances, the performance of this key function is simply too important to entrust to the Title IX investigator in USC’s procedure,” Willhite wrote. His opinion was joined by Justice Audrey Collins and Orange County Superior Court Judge Kim Garlin Dunning, sitting by designation.
“The decision against USC appears to be consistent with the new Title IX guidelines” proposed by the Department of Education last fall, which are open to public comment through January, Doe’s lawyer Mark Hathaway wrote in an email.
‘The courts are making substantive changes,’ but USC did everything right
Both rulings fault the choices made by Title IX investigator Kegan Allee, particularly her failure to interview relevant witnesses and pursue exculpatory evidence.
USC staff identified in the past year’s rulings against the university appear to have not been sanctioned for their failures as documented by judges.
Allee is now listed as assistant director of the Title IX office. Two officials caught calling an accused student “motherfucker” – Gretchen Dahlinger Means and Patrick Noonan – still have their titles.
USC declined to answer College Fix questions about how it’s specifically changing procedures in response to the rulings, and on what timeline; when it promoted Allee (in video below), whether she’s still handling investigations, and how the rulings may affect her employment and personnel file; and whether Means and Noonan have experienced sanctions.
A spokesperson provided a statement Saturday that says the investigation at issue in Friday’s ruling, which started in fall 2014, “was conducted in compliance with its student conduct policies and with state and federal laws in place at the time of the investigation.”
USC emphasized that “no case in California required a private university to conduct a live hearing” when the lawsuit was brought, “or to permit the responding student to confront and cross examine either the complainant or witnesses”:
The courts are making substantive changes to the requirements for Title IX investigations. USC will keep abreast of these evolving judicial interpretations and requirements, and most importantly, remains committed to preventing all forms of misconduct on our campuses, to providing outstanding care to all students, and to ensuring we have policies and procedures that prioritize respect for our students and our entire university community.
Removal of sex-offender designation will help him ‘to some degree’
Though the accused student is identified pseudonymously in Friday’s ruling, he has been previously identified as former USC football player Bryce Dixon.
USC tried to head off Dixon’s lawsuit from the start, arguing he wasn’t eligible to return to USC. It expelled him in 2015 for “nonconsensual sex acts” with the accuser, “Jane Roe,” but the following year Dixon was sentenced to six years in prison for a string of violent robberies, according to the Los Angeles Times.
The university expelled him again after his conviction for “independent violations” of the student conduct code. It maintains that the lawsuit is moot because of this second unrelated expulsion.
Neither the trial judge nor appellate judges bought the university’s argument. USC has branded Dixon a sex offender, which will have “an immediate and lasting impact” on his life, from personal relationships to educational and employment opportunities, Friday’s ruling said.
Removing his sexual-misconduct expulsion from his record would make it easier for Dixon to transfer and restore his reputation “at least to some degree” for the public, it said.
A history of hooking up with football players – and being reprimanded
As with December’s ruling against USC, this Title IX proceeding involved alleged bruises on the accuser but no physical evidence.
Dixon was a freshman on a football scholarship when he had sex with Roe, a senior and student athletic trainer, just after midnight on Oct. 24, 2014.
Trainers had been warned not to “hook up” with athletes or they would lose their jobs. But according to Roe’s roommate of three years, “E.C.,” she had a history of sleeping with football players and had been “reprimanded for unprofessional conduct” before her encounter with Dixon.
The opinion notes that much of Allee’s interview with the roommate, including Roe’s relevant sexual history, was redacted in Allee’s notes. The investigator did not record interviews and only provided summaries of her raw notes in her report.
The Student Behavior Appeals Panel also refused to give the roommate’s redacted interview to Dixon, including an alleged “group text” warning to trainers, claiming it was irrelevant.
Roe texted Dixon around 11:30 p.m. Oct. 23. She later told Allee that she was going to his place to smoke marijuana with him after getting “tipsy.” She said he forcefully groped her as they walked to a taco stand together, yet Roe agreed to return with him to his apartment, believing they would only smoke together, not have sex.
E.C. and Roe’s other roommates had “teased” her about the likelihood she would “hook up” with Dixon before she went over. To convince them she wouldn’t, Roe texted one of them continually while she was with Dixon. “None of Roe’s texts expressed discomfort about the way Doe touched her,” the judges note.
Dixon denied in his interview that Roe smoked any marijuana with him. His intentions for that night were clear, as revealed by a series of “flirtatious texts” that Allee left out of her report, the judges note. Dixon told Roe she “should wear nothing” and “come over naked” to his place, and she responded “Hahaha no I’m not going over to your place naked” and she couldn’t “guarantee anything.”
While claiming she couldn’t remember several details of the night, Roe told Allee that Dixon made her touch his penis, roughly grabbed her breast and then had rough sex with her while she protested. He put his hand over her mouth at one point. Roe said she was “repulsed” by how quickly Dixon moved to sexual intercourse and claimed he didn’t use a condom.
Education Department is planning to make significant reforms to Title IX regulations.
On November 29, the 60-day public comment period opened for Title IX regulations proposed by U.S. Department of Education Secretary Betsy DeVos. The move was the latest, and most significant, step in DeVos’s efforts to encourage colleges and universities to create a more balanced adjudication system for resolving campus sexual assault allegations.
Three features distinguish DeVos’s proposed regulations from the Title IX initiatives of her Obama-era predecessors.
First, the proposed rule would redefine the relationship between the Education Department’s Office for Civil Rights (OCR) and the nation’s universities, in ways that give schools more flexibility to implement Title IX. The regulations would adopt the U.S. Supreme Court’s definition of sexual harassment found in Davis v. Monroe County Board of Education—behavior “that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”—rather than the more expansive language of earlier OCR guidance.
Second, the proposed regulations would no longer require schools to adjudicate some off-campus claims. Citing Title IX’s statutory language, the proposed regulations would apply to “discrimination under any education program or activity receiving Federal financial assistance.” However, in contrast to a version of the proposed rules leaked in August, the published proposal notes that courts have deemed fraternities as covered under Title IX, suggesting that universities would need to adjudicate incidents that occur even at off-campus fraternities.
Third, the proposed regulations would reduce the number of employees whose knowledge of a sexual misconduct allegation would require the university to initiate an investigation.
In theory, these are substantial changes—and they have generated ferocious criticism from Obama-era officials and accusers’ rights activists. In practice, however, they are likely to have scant effect. Any college president who confined her institution’s Title IX policies to these provisions would almost certainly face massive protests from campus activists. Many schools can, and likely will, define sexual harassment more broadly than Davis. They can, and likely will, designate many or even most employees as mandatory reporters. And schools can, and likely will, continue to adjudicate off-campus conduct.
Indeed, recently a student sued Harvard after learning that the institution planned to adjudicate a sexual assault complaint against him—even though the complaint was filed by a non-student and involved an incident that occurred hundreds of miles away from campus, wholly unrelated to any Harvard-related activity.
If the definitional items in the proposed rules will not likely change much in institutions’ decisions about whether to adjudicate sexual assault allegations, the proposed rule would dramatically alter how colleges adjudicate. Although Title IX long has required “equitable” grievance procedures, Clinton-era guidance provided relatively few specifics on how to implement this mandate. Obama-era guidance, on the other hand, envisioned schools prioritizing the OCR’s interpretation of Title IX over any “due process rights” for accused students. As a result, universities increasingly employed a “single-investigator” adjudication model, handling sexual assault claims without any hearing at all, relying instead on the judgment of a Title IX employee or a lawyer hired by the Title IX office.
President Obama’s second-term OCR head, Catherine Lhamon, even deemed it “nonsense” to assert that courts have required direct cross-examination as part of due process protections for students accused of sexual assault. But, in fact, multiple federal courts have required it. The most prominent such decision, from the U.S. Court of Appeals for the Sixth Circuit in Doe v. Baum, made clear that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” It is from this emerging body of law that DeVos’s proposed rule heavily draws.
The regulations would require schools to allow cross-examination, conducted by a lawyer or advocate for each party. They would require schools to share with both sides evidence from the investigation. The rules would require schools to divulge to both parties the materials with which Title IX adjudicators are trained. And they would require schools to presume that the accused student is innocent. Although these changes would create a more equitable adjudication process, I am aware of no college or university with a Title IX code that currently includes all four of these provisions.
Finally, unlike her predecessors, DeVos has chosen to issue new regulations, eschewing the Obama Administration’s preference for guidance documents issued without notice or public comment. President Obama’s OCR heads had threatened to pull federal funding from any school that did not implement the guidance, which gave it the same effect as if it were binding law. Making a Title IX change through a rulemaking will delay the implementation of the new policy, which now will not come into effect until well into DeVos’s third year in office. And the notice-and-comment period gives DeVos’s opponents an opportunity to mobilize against the proposed changes in a way that a comment-free guidance document does not provide.
But opting for a new regulation rather than guidance has two major advantages for DeVos. First, in recent years, both progressive activists and Democratic legislators have championed an approach to Title IX that encourages more reporting of campus sexual assault allegations at the expense of fairer investigative and adjudicative procedures. It seems all but certain that the next Democratic administration will hope to restore President Obama’s Title IX principles. A guidance document issued by DeVos would lack lasting force; regulations, at the very least, would be more difficult to overturn.
Perhaps more important, regulations likely would require adherence, albeit very reluctantly, from universities. Last year, DeVos issued interim Title IX guidance that invited, but not did require, schools to develop procedures with greater protections for the accused. Virtually no schools took her up on her offer; the leadership at many universities made clear they would change nothing unless forced to by Washington.
Any university tempted to defy the new rule’s due process provisions, however, would risk not only adverse action from the OCR but a likely defeat in any Title IX lawsuit filed by an accused student. Schools, in short, will have little choice but to comply.
Accusers’ rights organizations have called for flooding DeVos with comments; presumably they will also sue to block the new regulations if and when implemented. But, barring an unforeseen development, a dramatic shift in how universities handle Title IX tribunals looms.
KC Johnson is a professor of history at Brooklyn College.
Stacy M. Brown, NNPA Newswire Correspondent, @ StacyBrownMedia
A dozen years ago, Tarana Burke created the slogan, “Me Too.” Burke, a Bronx, N.Y.-born African American civil rights activist, created the saying as a means to help women who had survived sexual violence.
Years later, the hashtag “#MeToo” took off, initially without properly crediting Burke.
The movement also seemed initially to exclude women of color or, in the view of many, disproportionately focus on victimized white women – prompting Burke to passionately tell African American women earlier this year, “don’t opt yourself out of what was started for you because the media isn’t acknowledging your hurt.”
Mostly white actresses in Hollywood have become the public face of the movement and men like Matt Lauer, Charlie Rose, and Les Moonves have lost their high-profile jobs.
The success for proponents has been increasingly measured in terms of the career, stature, title or reputation loss experienced by the growing group of the (mostly men) accused in the media and a much smaller segment of accused that have been charged and/or convicted of crimes.
As some in the movement include Bill Cosby’s conviction on aggravated indecent assault charges as another consequence of #MeToo, the pending charges and trial outcomes against movie mogul Harvey Weinstein remain unsettled.
Cosby’s trials were so adversely impacted by media rhetoric and public perception that the inaccurate reporting of the actual substance was an unsworn-in additional witness against him — including a prosecutor who cited Cosby’s conviction as a centerpiece of his election campaign.
In fact, even though videos have emerged of several professional football players and other celebrities assaulting physically assaulting women in hotel lobbies, elevators and hallways, Cosby may ultimately find himself as the sole accused celebrity who serves actual prison time.
Most recently, the movement was also credited for canceled office holiday parties and a growing number of radio stations refusing to play the classic song, “Baby, It’s Cold Outside,” after many claimed that the singer is trying to persuade a woman to stay with him by offering her a drink.
“While it’s critically important that women who’ve been assaulted are heard, we cannot forget about the fundamental right to due process that our great country was founded upon,” said Andrew Miltenberg, one of the nation’s leading due process attorneys.
“This is a dangerous time in our nation’s history, reminiscent of the days of McCarthyism, where a single accusation is enough to end a career. Even baseless charges can ruin a lifetime of work in some situations,” Miltenberg said.
With more than 200 men losing positions and Cosby jailed, some are beginning to look at the movement with a suspect eye.
Actor Sean Penn famously said the campaign has been too black and white and it has divided men and women. Penn also said the movement “is being led by mania.”
He told NBC’s Today Show that he’d like to think that none of it was influenced by what they call the movement of #MeToo. “I think it’s influenced by the things that are developing in terms of empowerment of women who’ve been acknowledging each other and being acknowledged by men,” Penn told Today. “This is a movement that was largely shouldered by a kind of receptacle of the salacious.”
When the show’s host, Natalie Morales, asked Penn to clarify his use of the word “salacious,” the actor doubled-down. “Well, we don’t know what’s a fact in many of the cases,” Penn said. “Salacious is as soon as you call something a movement that is really a series of many individual accusers, victims [and] accusations, some of which are unfounded,” he said. “I don’t know the percentages, but I know that there are some lies that have been told publicly about people; I know of some serious omissions. I’m talking about women towards men.”
Actress and former Playboy model Pamela Anderson has also criticized the #MeToo movement.
She has argued that many of the cases stem from actresses taking meetings in hotel suites alone with male executives. Anderson has argued that she’d never go to a man’s private hotel suite for a business meeting alone, particularly if the man answering the door is “only wearing a robe.”
“I think this feminism can go too far,” she said in an interview earlier this year with Australia’s
“60 Minutes.”
“I’m a feminist, but I think that this third wave of feminism is a bore. I think it paralyzes men,” she said. “My mother taught me don’t go to a hotel with a stranger. If someone opens the door in a bathrobe and it’s supposed to be a business meeting, maybe I should go with somebody else. I think some things are just common sense. Or, if you go in, get the job.”
At its best, the #MeToo movement has been a much-needed corrective to the abuses of power, said Attorney Justin Dillon of the Washington, D.C.-based firm of Kaiser Dillon PLLC. “At its worst, though, it’s been an excuse to unfairly ruin people’s lives and reputations without any form of due process or testing of the allegations.”
“There is no #MeToo court [where] you can go to get your reputation back and filing a real lawsuit is prohibitively expensive for most people. Plus, the media often confuses allegations with proof, which is both lazy and harmful,” Dillon said.
Celebrities and business moguls aren’t alone in feeling the brunt of the #MeToo movement.
Even children have been accused.
Nine-year-old New Yorker, Jeremiah Harvey, who is black, was falsely accused of groping and sexually assaulting Teresa Klein, a white woman, at a Brooklyn store.
Klein, later dubbed “Cornerstone Caroline” by social media, called police after she falsely accused young Jeremiah of assault – cameras showed the child never touched Klein.
“I felt humiliated because of the way she was acting,” Jeremiah said in a later broadcast interview.
Historically, false allegations of sexual assault have been a frequent and persistent phenomenon – particularly for black men.
Earlier this year, the 1992 convictions of Van Dyke Perry and Gregory Counts, two African American men, were vacated when the alleged victim revised her story after new DNA evidence was discovered that exonerated the two men.
Of course, the most prominent example of someone paying a high price for a sexual assault they didn’t commit was Emmett Till. Till, who was black and only 14-years old, would never reach his 15thbirthday after becoming the victim of a lynching and murder in Mississippi, igniting the Civil Rights movement in 1955.
In 2017, Carolyn Bryant Donham, Till’s accuser, admitted that she lied. According to a story fi led by Jerry Mitchell for the Clarion Ledger, “… Carolyn Bryant Donham has admitted she lied when she testified that Till touched her — a lie she repeated to the FBI a decade ago.”
Before Emmett Till, there was the Scottsboro Boys, nine black teenagers falsely accused in Alabama of raping two white women on a train in 1931.
That case was tried in front of an all-white jury and fraught with problems, including lynch mobs, threats of violence and injustice. Modern day allegations have also torn apart college campuses. In a recent Glamour magazine article, “Inside the Organizations that Support College Rapists,”
LillyDancyger writes, “On the other end of the spectrum, [Alice] True [Founder of] Save Our Sons cites a statistic that one in three students found guilty of sexual misconduct through Title IX hearings are in fact innocent—a statistic that comes from a UCLA study that focused on mathematical probability of false accusations without analyzing actual cases.”
The nonprofit Families Advocating for Campus Equality (FACE) notes that many college students have been tried and convicted and have had their reputations and lives torn apart over allegations that haven’t proven true.
According to FACE, at least 200 students claiming to have been falsely accused or found guilty of sexual assault on their campuses, have fi led lawsuits against their colleges, administrators and/or their accusers over the past several years.
Officials said there are more lawsuits pending across the country while nearly 100 court decisions have been issued in favor of accused students since 2013.
These lawsuits claim violations of due process, breach of contract and infliction of emotional distress, as well as decisions tainted by gender bias under Title IX, according to FACE’s website.
FACE officials said there are many, many more unjustly accused students who have resolved their disputes without legal action or are constrained by college-imposed confidentiality policies, and those whose claims have been settled are almost always bound by confidentiality clauses in their settlement agreements, officials said.
And of course, there are those whose futures have been devastated because they did not have the knowledge or resources to challenge the findings, and their college or university refused to acknowledge their innocence, FACE argues.
Does DeVos see ‘every hearing as a Perry Mason episode’?
Judges question ‘practical efficacy’ of fair hearing when single official does everythingThe era of serious punishments based on a single official’s investigation is over at the University of Southern California.