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California Task Force Issues Recommendations on Campus Due Process

Source: http://www.ivc.edu/policies/titleix/Documents/Recommendations-from-Post-SB-169-Working-Group.pdf

Members of the Post SB 169 Working Group:
Wendy Brown, Class of 1936 First Chair, Political Science, UC Berkeley
Justice Carlos R. Moreno (Ret.)
Lara Stemple, Assistant Dean, UCLA School of Law

November 14, 2018

Introduction
The following represents the consensus reached by the working group appointed by Gov. Jerry
Brown following his veto of SB 169. It makes recommendations concerning how best to address
allegations of student sexual misconduct on college and university campuses in California.
To inform our analysis, we reviewed current state law, current and prior federal guidance,
recommendations made by the American Bar Association, and published commentary by legal
scholars and others.

These recommendations specifically pertain to sexual misconduct allegations between student
parties. We note that many of the due process protections mentioned below would also be
relevant when allegations include staff or faculty parties, but such an expansion of these
recommendations would require the additional consideration of numerous factors.

Type of conduct
Policies should focus on sexual misconduct, which includes both “sexual assault” and “sexual
harassment.”

Standard of proof
Assuming that all other requirements for fairness and due process are met, campuses may use
a preponderance of the evidence standard when adjudicating sexual misconduct allegations.2
Preponderance of the evidence means that the conclusion is supported by evidence that is
persuasive, relevant, and substantial (we reject the trope that preponderance can mean 50
percent likely to have occurred “plus a feather”).3 Moreover, this standard is adequate only
when procedures are transparent and fair, as outlined in more detail below.

Confidentiality in process
While the identities of the parties directly involved (complainant, respondent, and witnesses)
must be disclosed to one another to ensure basic fairness,4 no party’s identity should be
revealed to staff/faculty not involved in the process, the wider student body, or to the public by
any of the offices or officials involved with the process. 5 Some state and federal laws concerned
with protection of confidentiality in the context of freedom of information may apply.6

Investigator independence
The “single-investigator model,” lacking separation between investigator and adjudicator(s),
rarely meets due process requirements. The investigator may or may not be the campus Title IX
Officer. However, the investigation and adjudication must feature distinct persons and
processes.7 We note that some schools have developed robust evidentiary hearing procedures
that may have sufficient due process protections.8
Investigator obligation
The Title IX Officer, or delegated investigator, must fully and impartially investigate all sides in a
complaint.9 During the investigation, the Title IX Office must strive to be impartial and must not
serve as an advocate on behalf of one party. 10 The Title IX Office should provide both
complainants and respondents with information about other campus resources where support
may be available, including but not limited to confidential counseling.11

Process: report, finding and outcome
If both parties agree that the facts in the report are correct (including a balanced notation of
facts in dispute, if any) 12 and accept the investigator’s finding that misconduct did or did not
occur, then a sanction, if warranted,13 may be issued at this point, preferably by an office other
than the Title IX Office. 14 If the sanction is accepted by both parties, the case is concluded. If the
facts, finding of responsibility, or the sanction is disputed, a hearing may be requested by either
party. 15

Status of the investigator’s report in the hearing
If facts in the report are under dispute, the report, while available for consideration during the
hearing, should not be given presumptive weight. If the facts in the report are not under
dispute, the investigator’s report may stand, and the hearing need not repeat the process of
learning the facts from the parties or witnesses.16

Live hearings
The live hearing must allow parties to provide and hear testimony in real time. However, in
circumstances in which complainants do not wish to interact with respondents directly,
campuses must make reasonable accommodations such that parties can avoid direct face-toface interaction while participating in the live hearing. 17 In such circumstances the use of
accessible video technology or other devices should be employed to assist the parties and factfinders in assessing witness credibility.18

Direct questioning and cross-examination
In a live hearing, there should be no direct questioning of any one party by another party.19
However, a party, or a party’s intermediary, is entitled to question the other party by submitting questions to the adjudicator, who shall have discretion to determine the appropriateness and relevance of any question.20

Right to counsel
Both parties should have the right to an advisor of their choice, including an attorney.21 Schools
should not allow advisors to directly intervene in meetings or proceedings, but the advisor
should be able to communicate questions and concerns to the party he/she represents in
writing or through private consultation during the proceedings. Both parties should also have
the right to bring a non-participating support person (e.g., a friend or a counselor) to
proceedings.

22
Discussion of the complainant’s sexual history
The presentation of evidence about either party’s sexual history is generally prohibited. Sexual
histories concerning outside parties are wholly irrelevant and potentially prejudicial. Evidence
referencing the parties’ sexual history with one another is prohibited unless it provides material
evidence on a disputed issue of relevance to the misconduct charge or defense against it.
Further, investigators and adjudicators must recognize that the mere fact of a current or
previous consensual dating or sexual relationship between the two parties does not itself imply
consent or preclude a finding of sexual misconduct. 23

Trauma-informed responses by investigators and adjudicators

“Trauma-informed” approaches have different meanings in different contexts.24 Traumainformed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a trauma-informed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to
evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of
complainants in a manner that is incompatible with due process protections for the
respondent. Investigators and adjudicators should consider and balance noteworthy
inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and
memory that are well grounded in current scientific findings.

Informing parties of allegations, case status, evidence gathered, and outcome
Schools should provide respondents with prompt, detailed, written notice of the allegations
against them.25 The respondent and the complainant should have equal access to information26
and should be given the opportunity to respond at designated intervals. 27

Once an allegation has been made, the school should prepare an investigation report.28 Once
prepared, the school should give notice to both parties contemporaneously of the availability of
the report.29 The report must contain a list of the evidence gathered during the course of the
investigation.30 Both parties must have a reasonable opportunity to review the report and
respond, in a statement, to any perceived errors of fact or interpretation in the report prior to a
finding of responsibility. 31

Final appeal process
Both parties have the right to appeal the outcome.32 No live hearing is required for the appeal.
A majority of an impartial, three-member panel (at a minimum) must decide the appeal.
Grounds for appeal should be limited to the following:
33
 New information not known or available at the time of the investigation has become
known or available
 Procedural error materially affected the findings of fact (for example, improper
exclusion or inclusion of evidence)
 The sanction imposed is disproportionate to the findings in the case (that is, too lenient
or too severe)
 The conduct as found by the decision-maker does not violate school policy
 Evidence of biased decision-making
Interim measures

Prior to findings from an investigation or determination through adjudication, interim
restrictive measures concerning housing and campus access may be implemented by the Title
IX Office to protect the interests of the parties. 34 Efforts should be made to keep these
measures reasonable and as minimally disruptive for both parties as possible. Upon a finding of
non-responsibility on the part of the respondent, interim measures and restrictions must be
lifted immediately. Minimal no-contact orders (no socializing, talking, texting, etc.) may remain
in place.

Mandatory reporting to Title IX Office
Many schools have instituted “responsible employee” reporting requirements for faculty
and/or staff. 35 We wish to note the drawbacks to designating faculty as such, including the
disempowerment of victims to decide for themselves whether to report to the Title IX Office. In
addition, it can negate faculty members’ ability to openly counsel and listen to students and
colleagues, free from an obligation to act against the victim’s wishes. Even sensitive class
discussions during which students may disclose past victimization can trigger this reporting
obligation, which runs counter to the free and open exchange of ideas in the classroom.

Anonymous reporting
Under California SB 967, schools are required to implement “procedures for confidential
reporting by victims and third parties.” Accepting such reports may be helpful for identifying
patterns and understanding risks that exist for the campus. 36 However, identities must be
disclosed upon the beginning of an investigation that could result in sanctions against the
respondent.37

Data collection beyond Title IX recordkeeping

The reports made to Title IX offices reflect only a subset of sexual misconduct incidents on
campus. The majority of incidents go unreported. Therefore, campuses should support and
undertake qualitative and quantitative research to understand the nature and prevalence of
sexual victimization on campus and how to prevent it. Columbia University, UC Berkeley, and
others have begun such undertakings, and campuses should be encouraged to follow suit.

Collecting demographic data from parties
Campuses should collect anonymous data on the characteristics of parties to identify patterns
and systemic problems related to sexual victimization.38 An optional, confidential exit survey
about the parties’ demographic characteristics would avoid posing questions that might seem
intrusive or irrelevant if asked during initial intake or investigative processes.
Such data should be used to analyze whether use of the Title IX process suggests bias against
complainants or respondents in relation to race, sex, sexual orientation, gender identity,
disability, nationality, or other status. Where relevant, schools may wish to also track parties’
involvement in athletics, membership in the Greek system, whether the parties are
international students, and other factors in order to shed light on the problem.

Alternative models of conflict resolution: voluntary mediation versus restorative justice
Voluntary mediation is not recommended as an alternative model of conflict resolution in cases
of sexual misconduct.39 However, restorative justice practices may be appropriate as a
response to a finding of sexual misconduct, if all parties agree to them. If restorative justice
practices are recommended or requested, parties should be informed about them, how they
operate, and what each party’s role will be. Schools may limit the option of restorative justice
approaches in cases of severe abuse in order to ensure campus-wide safety.

A public health approach to prevention
While fairness in reporting and adjudicatory processes are essential to all parties involved,
these processes take place only after an incident has been reported. We wish to emphasize that
prevention efforts, if meaningfully executed, have the potential to reduce the number of
incidents occurring in the first place. A comprehensive public health approach, which seeks to
inform populations and ensure that community conditions are conducive to safety and wellbeing, seems particularly apt for addressing many forms of sexual misconduct, and should serve as a vital counterpart to punitive approaches to the problem. Moreover, life skills concerning consent, communication, and boundaries are particularly important for young, newly
independent students to learn.

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Ruling affirming the rights of students accused of sexual misconduct roils California colleges

Pedestrians walk on the USC campus in Los Angeles. A case involving Bryce Dixon, a former USC football player accused of sexual assault triggered a ruling that’s causing California college campuses to overhaul their Title IX procedures. (Patrick T. Fallon/ For The Times)
Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.

The decision last month came in a USC case but applies to all California public and private colleges, and prompted many to immediately halt Title IX investigations while they reshape their procedures. California State University, the University of California and USC, Claremont McKenna and Occidental colleges confirmed that they have made or soon will be making changes.

They already had been bracing to do so. In November, U.S. Education Secretary Betsy DeVos proposed controversial new federal rules that would strengthen the rights of the accused in sexual misconduct cases. The rules would apply to Title IX, which bans discrimination based on sex in educational programs and activities at schools that receive federal funding.

At many campuses, investigations are conducted in small, private settings. Accused students are not allowed to directly confront their accusers but may pose questions through a Title IX investigator who meets separately with each of them.

Officials and advocates question how academic institutions will be able to handle proceedings more common to courtrooms as well as the effects of potentially harsh confrontations between students. They also wonder about how much new funding, hiring and training will be required to adapt.

“We’re looking at a potential fiasco,” said Brett Sokolow, president of the Assn. of Title IX Administrators.

The California court ruling marks the latest twist in the highly contentious arena of campus sexual assault. Many universities adopted new Title IX procedures in 2016, as directed by the Obama administration, to become more sensitive to victims — such as indirect questioning.

Those changes set off a national backlash. Students accused of sexual misconduct have filed scores of lawsuits arguing that campuses denied them fair hearings. They have won cases in states including California, Ohio, Michigan, Mississippi and New Mexico.

California campuses must immediately comply with the appellate court decision, which has sparked a wide range of reactions.

“It will protect millions of college students in California from losing their education in a process that’s arbitrary,” said Mark Hathaway, a Los Angeles attorney who has pioneered much of the litigation on behalf of accused students.

At Cal State Dominguez Hills, news that those who report sexual misconduct could soon be subject to confrontational hearings unnerved many students interviewed.

“As it is, it’s hard to report what happened to you. …” said Mariah Rubira, a senior who was interviewed as a witness in one campus sexual misconduct case and said the current process works well. “#MeToo was big. People started to take a stand. I think this change would just push people back into silence.”

Suzanne Taylor, University of California’s interim systemwide Title IX coordinator, said UC began exploring how to create a “fair and compassionate” hearing model after DeVos unveiled her proposed rules, but Taylor said the court ruling has given that effort “more urgency.” She said the process will take time, but the university expects to issue an interim policy in the next few weeks.

Under UC’s current process, questions from both accuser and accused are submitted to the Title IX investigator, who may choose not to ask some questions deemed “harassing.”

“Obviously we have to comply with the law, and we will,” Taylor said. “We’re really going to do everything we can to protect both our community and the integrity of our process.”

Cal State, meanwhile, has temporarily stopped proceedings in 75 cases that probably are eligible for hearings, said Leora Freedman, the system’s deputy general counsel. She said she did not know yet whether any closed cases would need to be reopened.

Cal State, USC and Claremont McKenna College expect to issue interim policies soon. Occidental College has made changes. Stanford already allows cross-examination in a hearing.

The case that triggered the ruling involved Bryce Dixon, a former USC football player who was accused of sexually assaulting a female student in 2014. In a Jan. 4 decision, a three-member panel in the Second Appellate District unanimously found that Dixon was denied a fair hearing. (The ruling called Dixon “John Doe,” but his attorney, Hathaway, confirmed his identity.) The appeals court reversed a trial court ruling that Dixon had violated the student code of conduct and USC did not appeal.

The court ruled that in cases where students are facing “serious discipline,” such as a suspension or expulsion, and the credibility of witnesses is key, a university must permit cross-examination of “adverse witnesses” at a hearing either in person or via such means as videoconferencing.

The person who investigates the case, the court said, cannot also decide whether the allegations are true. That model, used by USC and many other universities, the court ruled, improperly “places in one individual the overlapping and inconsistent roles of investigator, prosecutor, fact-finder, and sentencer.”

The court ruling appears to allow cross-examination through a neutral intermediary, but DeVos wants to let students or their attorneys on both sides do the questioning.

Scores of universities, including the UC and CSU systems, have voiced opposition to such direct questioning, fearing it would intimidate victims of sexual assault and dissuade them from coming forward. It’s unclear how many universities may now decide to allow it. USC has said it might. UC and CSU plan to stick with indirect questioning.

“We have no intention … of putting in place those aspects of those Title IX rules that we believe would be harmful to our community unless and until we are absolutely legally required to do so,” Taylor said of UC.

Cal State’s Freedman said private meetings with students were more effective in reaching the truth. “The subject matter of these cases are of a personal, intimate nature. It’s difficult to talk about these things,” she said.

Linda Hoos, Cal State’s systemwide Title IX coordinator, said the university plans to use videoconferencing for hearings and train hearing officers to question without inflaming the conflicts.

Sokolow, of the Assn. of Title IX Administrators, said most colleges and universities will “find themselves in over their heads” trying to comply with the court ruling. Cross-examinations in courtrooms, he said, are conducted under strict rules by trained professionals.

He said his organization has been warning California campuses to prepare for change since 2015, when a San Diego judge ruled a Title IX procedure at UC San Diego unfair.

“This was something that was eminently predictable, and now we’ve got California institutions behind the curve,” he said.

Stephanie Vasquez, 22, a student at Cal State Dominguez Hills, said she feels for campus victims of sexual assault. When she was 10, she said, an older neighbor tried to peer up her skirt. She tried to tell on him but was brushed off. The experience deeply affected her.

“I just wanted to be home all the time, I didn’t want to go to school anymore because there was a possibility I would see him,” she said, as she relaxed in the campus Women’s Resource Center.

Vasquez said interrogating victims at a contentious hearing is not the right way to try to understand what happened to them. They need more gentle handling in a space in which they feel comfortable.

Casey Caprioglio, 24, also of Cal State Dominguez Hills, sees both sides. Students facing suspensions or expulsions would understandably want hearings, she said.

But Caprioglio also knows what adversarial questioning feels like. Five years ago, she said, she had to submit to police questioning in order to get an emergency restraining order against an ex-boyfriend.

“It’s terrifying, and you feel like they’re picking apart everything you’re saying. They treat you like you have a reason to lie,” she said.

That experience kept her from reporting a sexual assault the following year, she said.

Sebastian Hasan, a 22-year-old majoring in radiology at Cal State Dominguez Hills, supported the court-ordered changes.

“As a dude, there are times where a situation can be confusing. You want to make sure it’s clear what happened between those two people,” he said. “I think a hearing would help show who’s telling the truth. … If I’m accused of something and I’m innocent, I would want to ask questions and have the opportunity to talk it out face to face.”

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In bid to avoid shutdown, spending deal drops Violence Against Women Act extension, other contentious provisions

Senate Appropriations leaders Richard C. Shelby, right, and Patrick J. Leahy led conference negotiations on senators’ behalf. (Bill Clark/CQ Roll Call file photo)
As negotiators were finalizing a final fiscal 2019 funding package highlighted by border security spending Wednesday evening, it became clear that an extension of the Violence Against Women Act wouldn’t make the cut.

Several policy riders in the mix earlier Wednesday, including back pay for federal contractors for wages lost during the 35-day partial shutdown and the VAWA extension, didn’t make it in the final bargaining over the fiscal 2019 spending conference report, according to aides in both parties.

A senior Republican aide confirmed that the lack of an agreement on VAWA would lead the current law to lapse after Friday, though a senior Democratic aide said the expiration should have “zero impact.”

VAWA-related grant programs are funded through Commerce-Justice-Science appropriations, which are contained in the spending package.

Senate Majority Leader Mitch McConnell said earlier in the day that terms of a potential extension was among the final sticking points, with the Kentucky Republican having sought a stopgap extension through the end of September.

House Democrats did not want to agree to a straight extension of VAWA because they felt it would give Senate Republicans permission to ignore the broader reauthorization they plan to pass in the coming months.

Last summer, House Democrats introduced legislation to expand the scope of the law, to help victims of domestic violence and stalking stay in stable housing situations and to bar evictions based on the actions of an abuser.

The measure also includes an expansion of gun control laws aimed at prohibiting persons convicted of dating violence and stalking and those under protective orders from possessing firearms.

Separately, the White House Office of Management and Budget wouldn’t budge on lost pay for contractors, which had never been paid during prior shutdowns, according to a Congressional Research Service report.

Other sought-after provisions will have to hitch a ride on another vehicle or be dealt with as standalone measures. Questions that proved too contentious included whether to attach the annual intelligence authorization bill and other expiring authorizations, including EPA’s ability to collect certain pesticide registration fees.

A further extension of Temporary Assistance for Needy Families funding, in place through June 30, was also dropped. Language that would postpone scheduled automatic cuts, or sequester, of mandatory programs under the 2010 pay-as-you-go law, also didn’t make the cut, aides said.

Because lawmakers had racked up deficits in the previous Congress, nearly $1 billion in cuts will be triggered unless postponed in another bill.

House and Senate negotiators were signing the seven-bill fiscal 2019 omnibus conference report Wednesday evening as they prepped to file the measure for floor consideration.

After he’d signed the conference report, Senate Appropriations Chairman Richard C. Shelby tweeted that he spoke with President Donald Trump, who he reported “was in good spirits.” He wrote that he told Trump the wall money in the package is a “down payment” and that it was “only the beginning of a multiyear effort.”

The Senate is expected to take the first votes Thursday, according to a senior Democratic aide. House votes are not expected until the evening due to member absences for funerals for two of their former colleagues.

Senators, meanwhile, are eager to leave town. A number of them are expected to attend the Munich Security Conference, which starts on Friday.

And while Trump appears likely to sign the legislation when it reaches his desk, as the president himself might say, “We’ll see what happens.”

Lindsey McPherson contributed to this report.

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Has Title IX Gone Too Far? This Professor Makes the Case

M. Scott Brauer for The Chronicle
R. Shep Melnick

FEBRUARY 03, 2019  PREMIUM

The Education Department’s Office for Civil Rights has expanded Title IX’s reach far beyond its original purpose. At least, that’s how R. Shep Melnick sees it.

In his latest book, The Transformation of Title IX (Brookings Institution Press), Melnick, a professor of American politics at Boston College, argues that civil-rights officials — with the help of activists and federal judges — have wielded the gender-equity law to try to upend gender stereotypes, define sexual harassment in an overly broad way, and force institutions to adopt a particular view of gender identity.

The federal government has issued regulations under Title IX only once, in 1975. Doing so requires going through a public-­comment process and multiple stages of revision. Officials have instead opted to put out guidance documents that, as they tell it, simply clarify existing law and regulation, Melnick says.

Yet the guidance has imposed heaps of new restrictions on colleges, he says: “They’re making up completely new rules.” And administrators heeded the government’s demands, he says, because colleges’ federal funding was on the line.

Melnick spends much of the book criticizing how Title IX has been applied to sexual misconduct and athletics. He also singles out the Obama administration’s guidance on transgender students, which required schools and colleges to allow students to use the sex-segregated facilities, like bathrooms and locker rooms, that corresponded with their gender identity. (The Trump administration has withdrawn that guidance.)

“This is a level of silliness that is not appropriate for a problem that is this serious.”

Trump’s Education Department just wrapped up a public-­comment period on its newly proposed Title IX regulations, which include promising changes, Melnick says. Yet he thinks the compliance organizations that have sprung up around Title IX on campuses are here to stay, regardless of what the final rules look like.

Melnick spoke with The Chronicle about why the government’s approach to Title IX enforcement needs to change, masculinity, and the shortcomings of prevention training.

Are you suggesting that Title IX has outlived its usefulness in the context of higher education?

Absolutely not. There are still instances where there is discrimination against women. There might be some instances where there is discrimination against men. I see no reason to think that we should change our position on the basics of the statute. The real question is whether the way it was interpreted on sexual harassment and gender issues, and to some extent on athletics, went so far beyond the intent and the clear statement in the law that some of those regulations need to be changed.

So you’re criticizing how Title IX has evolved. At the same time, this is a law primarily about women and education. That has a lot of societal and cultural undertones that have shifted over time. Sexual harassment wasn’t even a common term in the 1970s. How can the law not evolve?

When it comes to the original purpose of stopping discrimination and access to programs, that was crucial. That was effective. When it came to reducing discrimination in employment for women, which we forget was really horrible as late as the late 1960s and early 1970s — that was very important. I also agree with the emphasis upon providing more athletic opportunities for girls and women in sports.

There’s no doubt in my mind that sexual harassment can be an impediment to women’s education. The big question is, how do we define it? How granular does the federal government try to get in defining what it is? And what are the protections that we use when we have disciplinary and investigatory exercises? It really comes down much more to the extent and detail and purpose of the regulation, rather than whether Title IX covers these important matters.

You told NBC News last month, “A lot of the things we put in place to say, ‘We really have to help women feel more comfortable and more secure’ — the rationale for some of those things has disappeared.” Can you explain that?

When Title IX was created, in 1972, the proportion of women in higher education was much different than it is today. Undergraduates were a little over 40 percent women in the 1960s and early 1970s, and 60 percent men. Now those numbers are flipped. The enrollment in medical schools now is more than 50 percent female.

I graduated from college in 1973, and I find the impediments to women at that time shocking. But that has changed dramatically. We need to take account of that. One problem we’re facing right now is that men are really falling behind. I don’t think that’s the fault of educational institutions, but the nature of the problem certainly has changed.

The fact that men are falling behind in educational attainment — is that something you’d like to see the Office for Civil Rights addressing?

I’m hesitant to say that is something they should take on. If there are instances where there are important opportunities that are made available to women and not to men, then that bears investigation. I’m not willing to say, as some people have, that anything that is female-only is contrary to Title IX. If we have programs that encourage more women to do coding, to be involved in science, technology, engineering, and math, universities should have the discretion to do that.

I’d like to see programs that encourage men to go into fields that are almost entirely female, like psychology, social work, ­elementary- and secondary-school teaching. This is an area where universities and schools need to pay attention. I’d rather not have people at the Education Department telling them how to do it.

So how would that kind of a system be regulated?

I can’t come up with an exact formula. The problems facing male students, like the ones that face female students now, are pretty subtle. It’s not so much discrimination by institutions that’s holding them back. It’s cultural forces. It’s the fact that boys mature later. A variety of things that are not very susceptible to regulation.

If it’s not government agencies running the show, who makes the rules?

The first line of responsibility lies with the universities themselves. They’ve really got to buy into the rules that they establish, because they are the ones that are going to be enforcing them. On sexual-harassment matters, the role that the federal courts have played has been relatively thoughtful. They were the first to say that sexual harassment is a form of sex discrimination, and they established pretty reasonable liability rules to deal with the problem. That was true in the employment context as well.

Where I start to be critical of the Office for Civil Rights is the way in which they simply broke ranks with the courts and took a much more directive approach. I have very few good things to say about the Trump administration. But in this area, they are trying to put federal regulations in line with court decisions so that we will have a clearer set of rules and avoid some of the excesses of the Obama era.

You take issue with the prevention training that federal regulations now require colleges to do.

We don’t have a very good idea of what happens in these trainings because a lot of schools just don’t explain what their training is. There’s some evidence that the training is not about rules of proper behavior, but is an attack on understandings of masculinity that goes well beyond what would be necessary to explain to people what behavior is appropriate and what is not. What I’d like to see is more transparency about what is being taught, rather than giving a blank check to people within Title IX offices to basically take over some of the teaching role of universities.

I imagine you went through Title IX training. What was your experience like?

I went through two training sessions online. Some of the stuff was probably worth mentioning but should be obvious. But also, it really exaggerated what the law prohibits, often in very silly ways. Part of the training was: Here are eight things in a professor’s office that are discriminatory, name them. It was kind of like “Where’s Waldo?” One of them was a picture of your wife in a bathing suit. Another was an antiwar poster, because that discriminates against veterans. This is a level of silliness that is not appropriate for a problem that is this serious.

Do you think the idea of women being mistreated on campuses is overblown?

Do I think that female students on campus very often have to put up with annoying statements, subtle put-downs, and other offensive things? Yeah, I’m sure they do. Do I think there is a rape culture in which sexual assault is rampant on college campuses? I just don’t buy that. There are a lot of problems on college campuses that make sexual assault much too prevalent, most importantly excessive drinking. No. 2, a sports culture. I’d like to change all of those things. But it’s important to make the distinction between the more subtle problems that women face on a daily basis and this claim that sexual assault is rampant.

This interview has been edited for length and clarity.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.

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The ACLU Moves to Embrace Due Process on Title IX

Betsy DeVos
MIKE THEILER / REUTERS
After Secretary of Education Betsy DeVos proposed a new rule on the obligations of colleges under Title IX, focusing on the due-process rights owed to students accused of sexual misconduct, members of the public submitted more than 96,000 comments. The ACLU’s contribution is of particular interest.By way of background, Title IX  is a law that states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under President Barack Obama, the Department of Education published a letter setting forth a new interpretation of what colleges had to do to meet their obligations under the statute. Any failure to comply would risk their ability to receive federal funding.

“Universities reacted with panicked over-compliance,” argues the Harvard Law professor Jeannie Suk Gersen. “In renewing their attention to the rights of alleged victims of sexual assault, many began to disregard the rights of accused students … It has become commonplace to deny accused students access to the complaint, evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses.”

Emily Yoffe reported on related injustices for The Atlantic. Later, when DeVos was drafting a new rule to supersede the Obama-era approach, Yoffe commented that the Donald Trump administration’s proposed guidelines “aren’t without their flaws—but they move the policy in a more just direction.”At the time, the ACLU seemed to disagree, vehemently.

The civil-liberties organization published a tweet complaining that DeVos’s proposal would “tip the scales” against accusers. “The proposed rule would make schools less safe for survivors of sexual assault and harassment,” it said. “It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence. We will continue to support survivors.”

At the time I published a critique, “The ACLU Declines to Defend Civil Rights,” that asked, “Since when does the ACLU believe a process that favors the accused is inappropriate or unfair?” Many other civil libertarians objected, too.

So I was pleasantly surprised last week to read the more formal, official comment that the ACLU submitted to the Department of Education. As the Brooklyn College professor K. C. Johnson observed, the ACLU’s lengthier, more considered statement is strikingly different from its earlier social-media reaction. It encompasses significant criticisms of the new rule, many of which warrant attention.

But on matters of due process, it aligns more closely with the Trump approach than the Obama approach, bolstering rather than weakening vital procedural protections.

“The ACLU supports many of the increased procedural protections required by the Proposed Rule for Title IX grievance proceedings, including the right to a live hearing and an opportunity for cross-examination in the university setting, the opportunity to stay Title IX proceedings in the face of an imminent or ongoing criminal investigation or trial, the right of access to evidence from the investigation, and the right to written decisions carefully addressing the evidence,” it states.

It urges a requirement that universities “provide counsel for both parties for the hearing if either party requests counsel.” And it questions the ascendant notion that protections for accused students and justice for victims are at odds:

Conventional wisdom all too often pits the interests in due process and equal rights against each other, as though all steps to remedy campus sexual violence will lead to deprivations of fair process for the respondent, and robust fair process protections will necessarily disadvantage or deter complainants. There are, however, important ways in which the goals of due process and equality are shared. Both principles seek to ensure that no student—complainant or respondent—is unjustifiably deprived of access to an education. Moreover, both parties (as well as the schools themselves) benefit from disciplinary procedures that are fair, prompt, equitable, and reliable.

At the same time, the ACLU still objects to the way that the proposed rule grants colleges the discretion to decide whether the burden of proof in sexual-misconduct disciplinary hearings should follow the “preponderance of the evidence” standard, requiring a 50.1 percent chance that the charges are accurate, or a “clear and convincing evidence” standard, a higher burden of proof.

I previously argued against the lower burden of proof.The ACLU’s latest articulation of its position states, “By authorizing recipients to impose a clear and convincing evidence standard instead of a preponderance standard, the Proposed Rule frustrates the purpose of Title IX. Under that standard, even where it is more likely than not that the respondent sexually harassed or assaulted a complainant, the school would have no obligation to provide a remedy.” Notice the way in which “to provide a remedy” and topunish the accused student get conflated in that formulation of the matter.

“The preponderance standard is the appropriate standard of proof to apply for complaints involving peer-on-peer harassment or disputes, including Title IX grievance proceedings, for two reasons,” the ACLU continues. “First, it ‘is the burden of proof in most civil trials’ and requires the factfinder to determine that the complaint is more likely true than false … Second, the preponderance standard makes sense because it treats the complainant and the respondent equitably. That is why it is used in civil litigation, where there is no ex ante reason to favor one side over the other.” Notice that technically, even the preponderance standard favors the accused, insofar as they prevail in cases where the evidence for and against guilt are exactly 50 percent in both directions. (Elsewhere, the presumption of innocence itself is now being attacked.)

The ACLU goes on to argue that a “clear and convincing” standard “tips the scales against the complainant,” adding that “in Title IX grievance or disciplinary proceedings, both the complainant and the respondent have a significant interest in access to education. Serious disciplinary sanctions will undoubtedly affect a respondent’s access to education. And, as the Department acknowledges, a school’s failure to address sexual harassment or assault will affect the complainant’s access to education.” Thus, it concludes,   “A preponderance standard provides the most equitable approach for resolving the complainant’s and respondent’s equal interests in access to education.”

I still think the ACLU has this wrong. That intuition flows in part from my understanding of 50.1 percent. Imagine that a roulette table appears in your garage. You’re obligated to cover the bet of the first passerby. Yikes! For numbers one through 36, half are red and half are black. And then there’s zero, which is green.

DARRIN ZAMMIT LUPI / REUTERS

A neighbor walks in, puts $1,000 on black, and demands that you spin the wheel. The odds are slightly in your favor. You’d be correct to conclude that you’re more likely than not to win. Now think of your confidence level that you will win as that wheel is spinning, but before the ball settles into its ultimate slot.

Based on that same degree of confidence, would you be willing to expel a student from college while permanently branding that person a rapist? I’d need something more than 50.1 percent confidence to impose that consequence on someone.What’s more, many of the most serious campus disciplinary hearings strike me as very unlike most civil trials in important respects. At public institutions, agents of the state are bringing charges against a student and perhaps imposing discipline, compared with one party suing another to try to recover damages. As Scott Greenfield, a criminal-defense attorney, writes on his blog Simple Justice, “this is no ‘grievance procedure’ but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes.”

The ACLU’s argument also posits a false symmetry. While the educational access of both accusers and respondents are indeed implicated in Title IX hearings, there are relevant differences, too. A wrongly accused student who is expelled utterly loses access to an education, whereas a victim doesn’t necessarily lose access to an education if a respondent is wrongly acquitted, in part because punishing a given perpetrator is not the only tool at a college’s disposal for safeguarding the educational access of victims.

Finally, an acquittal under a “preponderance of the evidence” standard may be harder on some accusers than an acquittal under a “clear and convincing evidence” standard, because only the former will strike many as implying an unreliable accuser. The latter better enables adjudicators to find someone not responsible without seeming to say that the accuser is more than likely a liar. That difference could conceivably spare some innocents a wrongful conviction, too, because some adjudicators are averse to implying that any accuser did something wrong or deceitful by coming forward with a claim of sexual misconduct.

These are the thorniest of questions, and neither approach to determining the burden of proof will yield the optimal outcome in all cases. People of goodwill who are genuinely concerned with the rights of accusers and respondents are on both sides of this debate.

And that strikes me as a final argument against the ACLU’s position. That is to say, because this is a tough question about which reasonable people can and do disagree, it makes sense to give different educational institutions leeway to adopt different burdens of proof. Perhaps the relevant tradeoffs vary with local circumstances in a way that makes different standards right for different institutions. Or perhaps a diversity of approaches is the best way to evaluate which burden is best and ought to be adopted universally at some point in the future.

Regardless, I suspect that the legislators who passed Title IX would agree that in doing so, they had no intention of prohibiting a “clear and convincing evidence” standard in campus disciplinary matters involving sexual misconduct. The thorny tradeoffs, with implications for access to education on both sides, are such that private institutions should be free to do what’s best as they see it rather than being coerced by the changing whims of a politicized central authority.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

CONOR FRIEDERSDORF is a California-based staff writer at The Atlantic,where he focuses on politics and national affairs. He is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.
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Will Presumption of Innocence Be The Next To Fall?

Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.

Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972and weaken protections against sexual harassment and violence for students.  The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.

That the new rules would be a “significant departure” was pretty much the point. The irony of “longstanding” meaning starting in 2011 when they were invented out of whole cloth by a bureaucrat eludes Shapiro. That inclusion of some basic due process “leaves campuses less safe,” however, isn’t merely the repetition of the vapid slogan of sad advocates, but a threat by attorneys general.

The “coalition” submitted a lengthy comment of 71 pages, which suggests they have a bit of extra time on their hands having managed to fix all their state issues so that they can now focus on federal rules. But the thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. They are arguing against the value of due process, fundamental fairness for the accused male student. But slipped in there is an argument rarely seen, and never by an attorney general. There should be no presumption of innocence.

B. The Presumption of Non-Responsibility Improperly Tilts the Process in
Favor of the Respondent.

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. §§ 106.45(b)(1)(iv) & (b)(2)(i)(B). The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation. Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation. The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard (which we contend is not appropriate). The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment.

Accordingly, there should be no presumption regarding the respondent’s responsibility.

In the scheme of sophistry, this is pretty big. The presumption of innocence, or “non-responsbility” as it’s euphemistically called here, is little more than the flip-side of the burden of proof. If the burden isn’t met, then who wins? But there is an additional prong, that the “winner” isn’t ascribed the title of “rapist” who beat the rap, even though that’s pretty much the way it goes anyway.

The presumption has long been reduced to a legalism in the mind of the public, that the cops wouldn’t arrest someone if he wasn’t guilty. That prosecutors wouldn’t prosecute someone who wasn’t guilty. To many, the burden is on the perp to prove his innocence, or he’s guilty but got lucky. The concept of it being a bit problematic to prove a negative isn’t one that people tend to spend much time thinking about. Why bother when everybody knows the guy is guilty?

But the argument proffered by the attorneys general is shockingly weak:

The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.

This is a non-sequitur. The argument, which no one makes but certainly should, that the criminal law presumption should apply, as this is no “grievance procedure” but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes, compels the presumption to apply. That it’s not, at least as argued by the AGs, a criminal case has no rational bearing on whether the presumption should apply.

The question, at best, would then turn to whether the purposes for the presumption apply to these proceedings as they do to criminal cases. They can’t be bothered to make a cogent argument, but then the sad advocates to whom their comment is really addressed won’t complain about their failure of logic.

But the fact that this comes from attorneys general, whose responsibility bears some relation to constitutional rights as well as the jurisprudence upon which they exist, raises a secondary, more nefarious problem. They are arguing throughout their letter, often disingenuously such as when they ignore the caselaw requiring hearings and some means of confrontation when facts are in dispute, against the basic premises of due process.

The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” Even worse, they are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. The ploy, that someone can be accused of rape but “considered neutrally” is absurd, and they, as lawyers, certainly know this.

Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric. Having already reduced due process to the enemy of women with astounding success, is the presumption of innocence now in their crosshairs? It’s not just the impact on the woke psyche on campus, but as legal concepts are undermined in the mind of the public, it filters through the system. Won’t that be convenient for the AGs?

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Proposed Missouri legislative reform emphasizes due process for accused in Title IX cases

GRAHAM PIRO – STAFF REPORTER 

Lawmakers express optimism bill will succeedA set of bills in the Missouri Legislature proposes significant reforms to the state’s Title IX procedures by allowing accusers and accused students to take their cases in front of the state’s Administrative Hearing Commission.They also ban guilt-presuming language and empower the attorney general to fine schools found to have violated due process rights. Particularly important for accused students, the legislation would also make the publication of false and malicious statements that someone is guilty of fornication, adultery, sexual assault, or rape legally punishable.Lawmakers are expressing optimism that it can be enacted into law this year.Under HB-573, college students would be able to request a hearing in front of the state’s AHC in any Title IX-related case in the University of Missouri System. It would also exert more pressure on institutions of higher education to protect due process rights through potential fines and legal action from the state’s attorney general.“It’s a time to put the protection back in place,” Rep. Dean Dohrman, the House bill’s sponsor, told The College Fix in a phone interview. “The core of the bill is to make sure that our fundamental rights are in place, that due process is followed.”Sen. Gary Romine, the sponsor of the Senate companion bill (SB-259), told The Fix the bill’s purpose was “putting responsibility on the school to make sure the students know their rights.”Both Romine and Dohrman expressed optimism that the legislation would be passed at some point this year, given that Missouri has a Republican “trifecta” – control of the governor’s seat and majorities in both legislative chambers. “I think it has good prospects,” Dohrman said.

The bills are marked as “emergency acts” that will take effect immediately due to being deemed “necessary for the immediate preservation of the public health, welfare, peace, and safety.”

The AHC “acts as a neutral and independent hearing officer for the state to avoid situations where a state agency acts as investigator, prosecutor, and decision maker,” according to the state of Missouri’s website. The legislation would effectively make Title IX proceedings more like legal cases where witnesses would be allowed to testify and evidence presented in trial-like hearings.

It could also potentially take the pressure off colleges to process Title IX complaints by having complainants and respondents take their cases directly to the commission.

The bills makes significant adjustments to current Title IX procedures, which do not currently allow the commission to hear such proceedings.

They also allow students to request a hearing in front of the commission as an appeal of any Title IX case if students received disciplinary action by the institution in the outcome of the case. Students would also be able to request expedited hearings if the outcome of their case was suspension or expulsion.

In order to exert more pressure on schools to follow due process, the bills empower the attorney general to investigate any alleged or suspected violations of the grievance procedure, and would fine schools that are found to have violated the due process rights of students $250,000.

Any breach of due process between an institution and a student would be considered an unlawful act by the attorney general, who would be able to collect data about Title IX cases from institutions.

The bills would also clarify the terminology used in Title IX cases. They require that colleges ensure “all parties use the terms ‘complainant’ and ‘respondent’ and refrain from using the term ‘survivor’ or any other term that presumes guilt before an actual finding of guilt.”

Donell Young, assistant vice chancellor for Student Engagement and Success at the University of Missouri, told The Columbia Daily Tribune that the bills could silence students who come forward about their experiences.

“It could silence some students, one that was already afraid to go through the legal process anyway, but it can also stop them from going through a university process because they don’t want the double taxation of going through the process,” she said.

“If due process is followed, the truth will come out,” Dohrman told The Fix. He stressed that the focus of his bill is to ensure that due process is followed through the proceedings, and that the “core of the bill is to make sure that our fundamental rights are in place.”

“Everyone takes sexual harassment and sexual assault seriously,” he continued. “We want to make sure it’s a good process that everyone can believe in.”

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Rep. Sheila Jackson Lee ousted as chair of Congressional Black Caucus Foundation after lawsuit

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 **
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 **
– The Washington Times – Wednesday, January 23, 2019

Rep. Sheila Jackson Lee has been pushed out as chair of the Congressional Black Caucus Foundation after she was accused in a lawsuit last week of retaliating against an employee who complained of being raped.

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.

Copyright © 2019 The Washington Times, LLC.
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Public Comment Period Extended for Title IX Rule

January 18, 2019
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.

Politico first 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.

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New Title IX Rules Would Empower Both The Accused And The Survivors

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