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Could False Accusations Threaten the #MeToo Movement?

 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.

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Education Secretary DeVos’s new rules for Title IX and sexual assault will restore fairness across the board

U.S. Education Secretary Betsy DeVos testifies before the House Education Committee on "Examining the Policies and Priorities of the U.S. Department of Education" on Capitol Hill in Washington, U.S., May 22, 2018. REUTERS/Leah Millis 

U.S. Education Secretary Betsy DeVos testifies before the House Education Committee on “Examining the Policies and Priorities of the U.S. Department of Education” on Capitol Hill in Washington, U.S., May 22, 2018. REUTERS/Leah Millis

Following the confirmation of Justice Brett Kavanaugh to the Supreme Court, the Senate Judiciary Committee referred several of his accusers to the Justice Department for lying to Congress, reminding us that the importance of taking accusations of sexual assault seriously must be balanced with a presumption of innocence for the accused.

It is precisely that balance that the U.S. Department of Education was aiming for when it recently proposed rules, under its Title IX authority, governing how institutions of higher education and K-12 schools handle students’ accusations of sexual misconduct.

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The proposed rules, which will become final after a 60-day public comment period that will likely result in some revisions, are intended to replace seriously-flawed Obama administration guidance on the same subject. That guidance, issued without public input, gave accused students—nearly always male and, as journalist Emily Yoffe has documented in The Atlantic, disproportionately black—little opportunity to defend themselves despite possible expulsion, rescission of job offers and graduate school admission, and other career-damaging consequences.

The Obama era guidance was the result of lobbying by liberal activists who portray sexual assault on campus as an exploding crisis and insist that all accusers must be believed, while dismissing inconsistencies or untruths in an accuser’s story as the understandable result of trauma – a theme that should sound familiar to those who followed the Kavanaugh saga. The guidance pressured schools to deny basic due process protections to the accused, while also mandating the lowest possible standard of proof—under which a 50 percent chance of guilt means conviction—and defining sexual misconduct so broadly that it infringed on free speech.

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Among the many due process rights commonly denied to accused students were cross-examination of the accuser and other witnesses, which the Obama administration worried could be “traumatic or intimidating,” and access to exculpatory evidence and the details of the charges. More than 200 such students fought back with lawsuits against their schools. In fact, the success of many of these suits is one reason Secretary DeVos made replacement of the Obama guidance a priority.

Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements. These include written notice of the allegations, an opportunity for both parties to review the evidence, the presumption of innocence, the right of cross-examination—subject to the typical “rape shield” exceptions—and an end to the common practice of having a single school official serve as investigator, judge, and jury.

Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements.

The new rules would also allow, but not require, schools to apply the somewhat higher “clear and convincing evidence” standard of proof. Given the severity of the consequences for students found guilty, many critics of campus kangaroo courts would have liked to have seen the rules also allow the “beyond a reasonable doubt” standard, the one used in the criminal justice system, where non-student claims of sexual assault are normally adjudicated.

One might hope that these common-sense reforms would meet with less resistance from the left than other Trump administration policies, given liberals’ championing of due process protections for even enemy combatants and non-citizens residing unlawfully in the U.S. Instead, the Chronicle of Higher Education reports that “Reaction to the regulations was swift, with ranking Democrats in the House and Senate condemning the proposals.” A typical response was that of Senator Kirsten Gillibrand of New York, who tweeted that DeVos was siding with “predators over survivors …betray[ing] her responsibility to the students she’s meant to serve. It’s sickening.”

Sen. Gillibrand and her like-minded colleagues fail to understand that only a fair adjudication process can determine who is the predator and who is the survivor, that DeVos is meant to serve male as well as female students—as is Gillibrand by the way—and that ruining the life of a wrongly accused student is as sickening as an unpunished sexual assault. Yoffe reports that she has “yet to talk to an accused student, even one who was eventually cleared, whose life wasn’t profoundly damaged; every one has told me that at some point he considered suicide.”

The reaction of liberal activists outside Congress was similar. “These changes are designed to flip Title IX on its head and give rights to accused students when Title IX was supposed to be protecting those experiencing sexual discrimination,” said Carly Mee, an attorney for a survivors advocacy group SurvJustice. Putting aside Mee’s mistaken belief that Title IX protects only accusers, it is a shame that critics of the proposed rules see the investigation and adjudication of sexual assault allegations as a choice between protecting women and affording due process to the accused.

As Secretary DeVos points out, “there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.” “Those are not mutually exclusive ideas,” she emphasizes. “They are the very essence of how Americans understand justice to function.”

Curt Levey is president of the Committee for Justice, a nonprofit organization that advocates for the rule of law. Before attending law school, he worked as a scientist in the field of artificial intelligence.
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The Fight Over Title IX Has Reached the Comments Section. Here’s What People Are Saying.

They quote the Bible, W. Somerset Maugham, Jimi Hendrix. They use MLA citations and footnotes, or write nothing but a single sentence. Many mention sexual-assault scandals — Larry Nassar at Michigan State University, or Richard Strauss at Ohio State University.

More than 50,000 people and counting have written to decry, praise, or try to modify the Education Department’s proposed overhaul of Title IX, according to the proposal’s docket.

Julia Schmalz
Under draft Title IX regulations proposed by the Education Department under Betsy DeVos, the rights of accused students would be strengthened and colleges’ liability would be lessened.

Betsy DeVos, the education secretary, triggered almost immediate controversy in her campaign to refashion Obama-era guidance on the gender-equity law, which affects colleges that receive federal funding. After rescinding key parts of a seven-year-old enforcement framework and replacing them with interim guidance, the department in November released its formal plan to reinforce the rights of the accused and relax colleges’ obligations to investigate cases.

Now that those regulations are open for public comments, the responses have poured in.

Many commenters describe their own experiences of sexual assault. Students, faculty members, and former academics use the space to tell harrowing stories that are months, years, or decades old.

Others say they were falsely accused, and welcome changes that they view as reinforcing due process.

The proposed rules would roll back a raft of Obama-era guidelines. They narrow both the definition of sexual harassment and the route by which it can be formally reported. They provide accused people the right to cross-examine their accusers through an adviser. They also allow colleges to raise their standards of proof, to resolve complaints through less-formal channels like mediation, and to limit investigations to cases that happen on campus.

More than 5,700 comments are publicly searchable as of Friday. A brief review of them shows how the public, and some academics, have filtered the monthslong debates around DeVos’s campaign.

Due (and Efficient) Process

DeVos’s first hints of a Title IX overhaul drew support from due-process advocates and students who said they had been falsely accused of sexual misconduct.

Many supporters of the rules who choose to name themselves in public comments cite personal experiences with proceedings gone awry.

Reginald L. Robinson, a professor of law at Howard University, briefly made headlines when a university Title IX investigation found that one of his exam questions, a hypothetical about Brazilian waxing, constituted harassment. (A federal judge dismissed some of Robinson’s claims last month after he sued Howard, a decision Robinson said he would appeal.)

A New Approach to Enforcement on Campus Sex Assault

This collection of Chronicle articles explores what a shift in enforcement of the gender-equity law known as Title IX might mean for sexual-assault survivors, accused students, and colleges.

“Had strong due process protections been in place,” Robinson wrote in a public comment, “Howard would have been required to show me the actual words of the two female students who made these allegations against me. Moreover, I would have been able to cross examine them and their factual allegations.” (Robinson did not respond to a request for comment.)

The Foundation for Individual Rights in Education, a free-speech advocacy group that briefly took up Robinson’s case, has supported the department’s changes on the grounds of strengthening due process.

“The accused can have their lives ruined by a false claim. Many have,” wrote A. Dwayne Ball, an associate professor emeritus of marketing at the University of Nebraska at Lincoln, who supports the changes. Although “universities have no business setting up court systems for serious crimes,” he wrote, “the accused should be entitled to all the protections afforded in a proper court.”

But supporters of the rules aren’t the only ones to cite due process. Opponents, some in form letters, argue that the changes would deny harassment victims due process by exposing them to “retraumatizing investigations” that can be drawn out “indefinitely.”

And Colleen M. Opal, an administrator at the University of Iowa’s college of business who contributed a comment, said in an interview that the talk about due process is a “red herring.”

“University judicial proceedings are not courts of law where due process and ‘beyond a reasonable doubt’ are the guiding principles,” she wrote in her comment.

The department justified its new rules in part by pointing to a figure from KC Johnson, a professor of history at Brooklyn College who has been a vocal critic of the Obama-era Title IX framework. Johnson has written that more than 200 accused students have sued colleges for allegedly violating due process (in an email, Johnson said the current number is 271 federal lawsuits, and around 100 at the state level). As part of a routine cost analysis, the department also said the rules would lower the average number of investigations by 39 percent, saving colleges money.

Other experts, though, have said that the new rules are unlikely to lower costs. The new rules introduce “all sorts of gray space for campuses” and “could easily lead to a flood of litigation,” Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, told The Chronicle in November.

A Wave of Opposition

Many of the comments have come from a wave of grass-roots organizing, Politico reported, as students and faculty members at campuses across the country have organized comment-writing events to voice their opposition.

Many come in the form of standardized letters provided by advocacy organizations that oppose all of the changes. Sometimes commenters add personal details to those templates.

But organizers of one comment-writing event warned against using form letters or boilerplate text. About 120 people met in early December in a law-school lecture hall at the University of Michigan at Ann Arbor, writing their submissions over Middle Eastern food, said Anna Kirkland, a professor of women’s studies and the director of the Institute for Research on Women and Gender.

The organizers answered questions about the regulations and explained why writing public comments is important, Kirkland said. Telling your story and how you feel in your own words is more effective than using duplicate language, they said.

Kirkland, a contributor to a major report on sexual harassment released this June by the National Academies of Sciences, Engineering, and Medicine, wrote her own letter while keeping an eye on her 11-year-old son, who had tagged along.

“The new rules will propel education policy against the weight of social scientific evidence about how sexual assault on college campuses happen and how best to handle them,” she wrote.

Other Approaches?

Kirkland didn’t oppose every element of the proposed rules. “I support the move towards greater informality in adjudications, however,” she wrote in her public comment, referring to options like mediation, “because our research clearly showed that victims want more informal options with less mandatory reporting. The fact that the definition is so much more narrow, however, limits the reach of the rule.”

This is where Kirkland tried to “tread a careful line” with the rules, she said in an interview. A better framework would be “greater informality plus a very wide definition” of sex discrimination, in which smaller proceedings can match smaller offenses, she said.

“We can’t forget that people can be falsely accused, and we need to have the same level of protection,” she said. “If somebody wants an adversarial process, it should be full and fair.” But not every offense needs to be litigated in a trial-like setting.

The new rules lack that nuance, she said. Instead, DeVos’s rules mismatch the most serious assaults with more-informal adjudication.

And John F. Banzhaf III, a professor of law at George Washington University, used the comment space to promote the idea of outsourcing investigations from colleges to “regional centers,” a solution DeVos and sexual-assault-prevention advocates alike have floated before.

The new regulations will remain open for public comment through January 28, 2019.

It’s unclear how much those alternative proposals, or the comments in general, will affect the final regulations.

Since the 2011 guidance, colleges have hired Title IX coordinators and reshaped bureaucracies. The Education Department’s Office for Civil Rights has investigated more than 500 cases in which colleges may have mishandled reports of sexual misconduct. More than 300 cases remain open.

After the department moved to scrap Obama-era guidance, many Title IX coordinators told The Chronicle they would keep the procedures they had in place, including the existing standard of evidence, though some of them welcomed the new guidance’s allowance of longer investigation periods.

Many commenters, in any case, thanked the department for providing a chance to share their views.

Some weren’t so sanguine. “I doubt anyone relevant is reading this anyway,” wrote one student. “Writing a letter so insignificant is all I feel I can do sometimes.”

Follow Steven Johnson on Twitter at @stetyjohn, or email him at steve.johnson@chronicle.com.

This article is part of:

A New Approach to Enforcement on Campus Sex Assault

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Report: As changes to Title IX enforcement loom, America’s top universities overwhelmingly fail to guarantee fair hearings for students

  • 3 in 4 top universities do not guarantee presumption of innocence in campus proceedings.
  • 9 in 10 top universities do not guarantee meaningful cross-examination in cases of alleged sexual misconduct.
  • None of the surveyed institutions guarantee all the due process protections required under the new, proposed Title IX regulations.
  • Polling shows students overwhelmingly want due process protections, but universities fail to deliver.

PHILADELPHIA, Dec. 18, 2018 — America’s top universities fail to provide students accused of campus misconduct with fair procedures, according to a new report from the Foundation for Individual Rights in Education. As the Department of Education considers public comments on newly proposed regulations governing Title IX enforcement until Jan. 28, “Spotlight on Due Process 2018” highlights the need for change.

READ THE REPORT: SPOTLIGHT ON DUE PROCESS 2018 | AUDIO CLIPS FOR MEDIA USE

“Students accused of serious campus offenses routinely face life-altering punishment without a meaningful opportunity to defend themselves,” said FIRE’s Susan Kruth, lead author of the report. “Universities need to provide basic procedural protections that help ensure accurate outcomes, and right now they overwhelmingly do not.”

FIRE examined policies at the top 53 universities in the country to see how many of 10 fundamental procedural safeguards they guarantee students, including the presumption of innocence, the right to impartial fact-finders, and the right to appeal. Of the 53 universities studied, 47 receive a D or F grade, meaning that they guarantee no more than 4 of the 10 elements rated.

Most institutions maintain one set of policies for charges of sexual misconduct and another for all other non-academic misconduct, such as theft or physical assault. Notably, of the 15 institutions that received an F rating for their sexual misconduct policies, 11 have been sued by accused students over the lack of fair procedure.

Although universities do not guarantee their students fair disciplinary procedures, it’s clear students overwhelmingly want them. Each element in FIRE’s report is supported by a majority of college students surveyed by FIRE this year about their views on campus due process protections:

  • 85 percent of students think their accused classmates should be presumed innocent until proven guilty, but only 26 percent of America’s top universities guarantee  students that protection.
  • Although three-quarters of students support cross-examination, only 1 in 10 institutions guarantees students a meaningful opportunity to cross-examine witnesses.
  • 8 in 10 students think students accused of breaking the law should be allowed to have a lawyer present in campus judicial proceedings, but only one institution out of 53 surveyed allows attorneys to participate without significant limitations.

This landscape may shift if the Department of Education’s proposed regulations are enacted. 87 percent of institutions receive a D or F for their failure to protect the due process rights of students accused of sexual misconduct, but implementing the proposed regulations would raise surveyed universities’ grades to a C or better.

“Of the 104 policies rated, not a single one receives an A grade. This shows just how far removed students have been from real justice in campus proceedings — and how much work is still left to do,” said Samantha Harris, FIRE vice president of procedural advocacy. “By adopting the ten elements of fair process laid out in FIRE’s report, universities can ensure that their judicial process protects the interests of everyone involved.”

“Spotlight on Due Process 2018” can be read in full on FIRE’s website. For more information about FIRE’s student survey, see “Proceeding Accordingly: What Students Think about Due Process on Campus.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

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This professor started a legal clinic for black students accused of rape. She’s getting threats.

‘Even more than I bargained for’When Lara Bazelon got a referral from a fellow attorney to assist an African-American student facing expulsion for the alleged sexual assault of a white woman, the law professor was skeptical.It was January, and Bazelon was heading up a new pro-bono law clinic focusing on “Racial Justice” at the University of San Francisco Law School. It was partnering with the San Francisco public defender’s office to assist minorities in legal trouble.

That referral ended up altering the focus of the law clinic. Up until that point, Bazelon had not been involved in any Title IX cases. But after discussing it with two female students, including one of color, Bazelon agreed to take the case.

Since then, Bazelon’s law clinic has taken numerous cases assisting low-income minority male students at California colleges who face expulsion over disciplinary charges. It’s still working with the public defender’s office on a wide range of cases as well.

The law clinic got on the national radar when Bazelon published an op-ed in The New York Times earlier this month that expressed support for Education Secretary Betsy DeVos’s* proposed Title IX reforms aimed at protecting due process.

Though Bazelon has argued in favor of due process for accused students before this, the op-ed provoked threatening voicemails and a lot of hate on Twitter, she told The College Fix in a phone interview.

“I expected some,” she said, “but some was even more than I bargained for,” adding the work was important, and “the fact that it is controversial is not going to dissuade me.”

“These are people of color with very limited means who face being permanently severed from their education,” she continued. “It is a population at risk.”

‘This is very important’ to majority-minority school

While Bazelon called DeVos’s proposed rules “far from perfect” in the op-ed, she said they would counter a “shameful legacy”: that America has “long over-sexualized, over-criminalized and disproportionately punished black men.”

She shared a case her clinic handled earlier this year, involving a first-generation black student on an athletic scholarship. He was accused of rape by “his teammate’s white ex-girlfriend” after she reconciled with her boyfriend, even though all agree their second sexual encounter was consensual.

The university judged him responsible for sexual assault because it found the woman more credible, even though her boyfriend also said she was lying.

“There is no hearing, no chance for the accused to ask her questions,” Bazelon wrote. “He’s one of a few black students on campus and worries he may get killed after word spreads.”

The law professor sees the mission of her clinic as essential to USF’s Jesuit mission, which centers on assisting the socially disadvantaged and poor.

She was “lucky” that Jesuit values were so important to the institution, Bazelon told The Fix. When she “explained the situation” to the law school dean, John Trasviña, he supported the clinic’s mission because he saw it as in line with the USF Jesuit mission. The Fix has not been able to reach Trasviña, who stepped down after the 2017-2018 academic year, to confirm the conversation.

Most of her students are women and people of color who see the importance of due process, according to Bazelon, noting her private university has a majority-minority law school. “This is very important to them,” she said. “As far as we know, we’re the only ones doing this.”

‘Very strong disagreements’ from respected peers

It’s been a harder sell outside her law school. Bazelon said she wrote a letter to the University of California system telling them that their “entire procedures are unconstitutional,” but never received a response.

Stanford Law Prof. Michele Dauber has also publicly criticized Bazelon’s diagnosis of what’s wrong in Title IX proceedings. Dauber led the successful campaign to recall a local judgeafter he issued a short jail sentence to a convicted rapist at Stanford, even though the judge followed sentencing guidelines.

MORE: Bazelon says false convictions would skyrocket if real courts mimicked campus

Michele Dauber

✔@mldauber

 · 
Replying to @mldauber and 2 others

Allowing each student to propound questions for the panel to ask is a reasonable system. The Trump Admin proposal for direct cross is a system guaranteed only to drop reporting through the floor. So in a way, it’s the perfect system to aligh the interests of colleges and rapists

Lara Bazelon@larabazelon

It isn’t direct x-exam. It’s thru an advisor. Why is that myth continuing to circulate? They don’t have to be in the same room and they are not allowed to talk to each other directly. Maybe posing questions to a panel to ask is better. That’s why we have n & c, to weigh in.

 · California, USA
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The law clinic’s cases serve as good learning opportunities because of the age proximity between the accused students and her own law students, Bazelon said. But her work has not always been greeted with support.

Citing recent California court decisions against UC-Santa Barbara and the University of Southern California, Bazelon said that defending due process “shouldn’t be a radical or controversial position.” Yet she has had several difficult conversations with people she respects who expressed “very strong disagreements” over her decisions to take these sexual misconduct cases.

The law professor called out the American Civil Liberties Union, which is supposed to be defending the rights of disadvantaged people, but “when it comes to these cases, they don’t.”

“We are standing up for the Constitution and making sure that these court decisions are being enforced,” she said.

Bazelon forwarded an interview request by The Fix to two of her students. One declined to talk and the other offered to answer questions via email but has not since responded.

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The New Title IX Guidelines Benefit Survivors

he New Title IX Guidelines Benefit Survivors

 They prove the rights of both parties are not mutually exclusive, argues Meg Mott, and assume that survivors deserve to be treated as functional human beings.
By  Meg Mott  December 17, 2018
 According to most news analyses, the U.S. Department of Education’s proposed rule changes for handling sexual misconduct and harassment on college campuses strengthen the rights of the accused at the expense of the victim. If respondents are able to hire lawyers to cross-examine witnesses, survivors will never be taken seriously.

But those headlines and lead paragraphs ignore the substantial powers the new rules grant to survivors. Not only do those rules prove that the rights of both parties are not mutually exclusive, but they also assume that survivors still deserve to be treated as functional human beings.

Under the Obama-era guidelines, students who had been sexually assaulted or sexually harassed were denied substantial decision-making processes. First, students had no choice in whether or not to report a case of nonconsensual sex or unwelcome sexual advances. Second, their judicial options were limited to a Title IX disciplinary panel. Third, the definition of sexual harassment privileged their fears over adult communication. All three elements of the old rules made it harder for survivors to heal.

Mandatory reporting. Under the “trauma-informed approach,” faculty and staff members were required to report any signs of prohibited sexual conduct to survivor advocates, whether or not the student wanted to complain. Any hesitancy or resistance on the part of the student was read as a symptom of trauma, not as a case of confusion or conflicting concerns. Victims, we were told during the annual training, don’t know what they need — which is for all employees of the college to act aggressively on their behalf.

By deputizing its entire work force as “responsible employees,” colleges were able to prove that they were taking sexual harassment and sexual misconduct seriously. But that policy required faculty members who taught sensitive material, such as feminist theory or literature, to alert their classes that any reference to an actual case of prohibited sexual behavior would need to be reported to the authorities. Once spoken, their private experiences were a matter of college business.

In contrast, the proposed changes require only one employee to coordinate and comply with the regulations, freeing faculty and staff members to provide support without triggering an investigation. This new rule will allow students to talk with others before deciding to initiate a complaint.

No alternative form of justice. The previous guidelines prohibited any informal alternative to a disciplinary panel, such as mediation. No survivor, it was assumed, could withstand the emotional distress of speaking with the accused.

Other countries, however, have granted survivors the option of restorative justice with no apparent damage. For instance, in Nova Scotia, female victims of online sexual harassment engaged in a series of restorative justice conferences. The women were students at a highly competitive dental school, and their harassers were fellow students who used a men-only Facebook page to make lewd comments about the women’s intelligence and looks. Rather than push for the dismissal of those accused through an administrative disciplinary panel, the survivors wanted to tell their peers how their sexist postings affected them and their studies. The women wanted the harassers to become better dentists and better human beings.

The proposed changes allow colleges and universities to experiment with alternative forms of justice, such as mediation or restorative justice conferences. As long as the parties understand the nature of the choice, more judicial options can be made available. That will allow harmed students to decide whether they want to take a greater or lesser role in applying any sanctions. For some harmed students, a restorative justice conference, in which they have a chance to speak directly to the harming student, offers more healing than a highly regulated proceeding in front of a panel.

No collective norms. Under the previous guidelines, sexual harassment was defined as “unwelcome conduct of a sexual nature.” The person who determined whether or not the conduct was unwelcome was the person allegedly being harassed. That person’s subjective response drove the whole investigation. As long as the complainant felt ill at ease, the Title IX panel should find for the aggrieved party.

But not being welcome hasn’t always been understood in purely subjective terms. Lawyers in workplace harassment cases, in contrast, read “unwelcome” as placing a burden on the aggrieved party to communicate their discomfort. Sometimes known as the “one free pass” rule, courts have understood that anything prior to an explicit rejection of sexual advances is potentially welcome.

On college campuses, however, cases are determined purely on the emotional distress of the complainant. If she (and majority of complainants still use that pronoun) feels demeaned, humiliated or scorned by the lascivious actions of another person, the encounter should be judged as harassment. Unfortunately, the subjective definition the Obama administration used has given an entire generation of college students a sense that painful feelings outrival communication. Students need not communicate their unease or discomfort to the offending party. All that is necessary is mentioning the encounter in passing to a “responsible employee” and the Title IX apparatus will jump into gear.

Under the recent proposed changes, sexual harassment is any “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to [the college’s] education program or activity.” Under this definition, it won’t be enough merely to claim one’s discomfort. The action must be offensive enough that other people will also find it objectionable.

The benefit for survivors? This change in the definition will mean colleges will have to do a better job of clarifying collective norms. Instead of relying on individuals to police offensive encounters, the new guidelines will require campuses to adopt objective standards of decency, standards that will make it easier for aggrieved parties to voice their unease.

As it turns out, colleges with a strong moral compass are better able to address gender violence. As law professor Leigh Goodmark points out in her new book Decriminalizing Domestic Violence, Xavier University used the Jesuit concept of “cura personalis” — care for a person’s mind, body and spirit — to address gender-based violence. Xavier was able to “mobilize their culture” toward healthier community norms. Without those community norms, individuals are thrown back on their individual sensibilities.

So, yes, the new rules provide more protections for the accused, particularly the right to have a lawyer available to cross-examine witnesses. But they do even more for survivors. By treating survivors as capable decision makers and requiring communities to clarify social norms, students who have been harmed by the sexual advances of others will have a much greater chance of healing and getting on with their education.

Bio

Meg Mott teaches politics at Marlboro College and is currently working on a book on freedom, rights and intimate partner violence.

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I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms.

There is an uncomfortable truth in the current system. No one wants to talk about it.

By Lara Bazelon

Ms. Bazelon is the director of the criminal juvenile justice and the racial justice clinics at the University of San Francisco School of Law.

The campus at California State University at Fullerton. Appeals courts have overturned suspensions of students for sexual assault at two California universities, citing a lack of due process.CreditLeonard Ortiz/Digital First Media, via Orange County Register, via Getty Images
The campus at California State University at Fullerton. Appeals courts have overturned suspensions of students for sexual assault at two California universities, citing a lack of due process.CreditCreditLeonard Ortiz/Digital First Media, via Orange County Register, via Getty Images

Education Secretary Betsy DeVos’s proposed regulations overhauling how colleges handle sexual assault, which may become law in January, are far from perfect. But there is a big reason to support them: I’m a feminist and a Democrat, and as a lawyer I have seen the troubling racial dynamics at play under the current Title IX system and the lack of due process for the accused. Ms. DeVos’s proposals take important steps to fix these problems.

Consider this scenario: A young black man enrolls at a state university in California on an athletic scholarship. He’s the first person in his family to go to college. His teammate’s white ex-girlfriend matches with him on Tinder, comes to his apartment, has sex with him and, they both agree, returns three days later to have consensual sex.

Weeks later, the young woman, who has reconciled with her boyfriend, claims the Tinder match raped her during the first sexual encounter. The Tinder Match adamantly denies this. Her boyfriend, who is also black, says she is lying. There is no hearing, no chance for the accused to ask her questions.

But the Title IX investigator concludes that he committed sexual assault by finding her more credible than him under the preponderance-of-the-evidence standard, under which the accuser must prove there is a greater than 50 percent chance her claim is true. He’s one of a few black students on campus and worries he may get killed after word spreads.

This happened in early 2018 to a client in the pro bono clinic I direct with my law students. We represent low-income students of color in California who face expulsion based on allegations of sexual assault.

We see what the Harvard Law School professor Janet Halley described in a 2015 law review article: “The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.” That’s why the DeVos regulations are a step forward.

Here is how they would work. Cross-examination would be conducted by an adviser for the accused (not, as some coverage has erroneously said, by the accused.) The accuser may sit in a separate room or participate via videoconference. The right to cross-examine goes both ways: The accused must also answer questions posed by the accuser’s adviser.

The changes would also do away with the problematic “single investigator system” where the person who interviews the witnesses and gathers the facts also serves as the judge and jury — a method the California State University System uses for its 485,000 students across 23 campuses.

The revisions are in line with court decisions that have characterized the current system as unfair. In August, the Court of Appeals for the Sixth Circuit, ruling in a case from Michigan, declared that if a public university adjudicates what is essentially a “he said, she said” 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.” This year, two California appellate courts have overturned university decisions to suspend students for committing sexual assault because their procedures were so lacking in basic due process.

Meanwhile, my client has been barred from campus for more than nine months. (His suspension was based on this allegation and a second allegation by another accuser, which was found to be unsubstantiated by the evidence; that accuser is appealing.) The DeVos regulations and the two California appellate rulings are most likely his only hope of avoiding an expulsion that would tar him as a campus sex offender and most likely prevent him from getting into another school.

The current system of adjudicating sexual assault complaints is broken. Under the rules set up by the Obama administration, hundreds of colleges, including many in California, were placed under federal investigation and threatened with the loss of funding for failing to adequately investigate sexual assault complaints. The definition of what constituted an assault was vastly expanded. Nonpunitive resolutions such as mediation were forbidden, even if that is what both sides wanted.

The Obama rules were written to address a real problem: a tendency by colleges to sweep sexual assault allegations under the rug. But it also gave risk-averse schools incentives to expel the accused without any reliable fact-finding process.

The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.

We have long over-sexualized, over-criminalized and disproportionately punished black men. It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists.

“I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Professor Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?”

We can fix this. The DeVos reforms are in their public comment period, which gives people on all sides of this debate a chance to weigh in. That is a good thing. I know my allies on the left will criticize my position, but we cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process. What kind of lesson is that?

Lara Bazelon (@larabazelon), an associate professor at the University of San Francisco School of Law, is the author of, most recently “Rectify: The Power of Restorative Justice After Wrongful Conviction.”

A version of this article appears in print on , on Page A31 of the New York edition with the headline: A Liberal Case for DeVos’s Reforms.
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Nearly 300 Profs, Lawyers Sign Letter in Favor of New Title IX Regulations

Education Secretary Betsy DeVos speaks about campus sexual assault and enforcement of Title IX, the federal law that bars discrimination in education on the basis of gender, Thursday, Sept. 7, 2017, at George Mason University Arlington, Va., campus. (AP Photo/Jacquelyn Martin)
Nearly 300 professors, lawyers, and Title IX experts have signed an open letter in favor of the newly proposed Title IX regulations, which bolster due process, allow cross-examination, and require presumption of innocence.

Organized by the Maryland nonprofit SAVE Services, the letter was unveiled by attorney Margaret Valois on Capitol Hill last Thursday, and was compiled to shatter the myth that strengthening due process in Title IX investigations will hurt women, especially survivors.

“The numerous signatures reveal that noted attorneys, legal scholars, other professionals and legislators… recognize and uphold the important concept of due process and recognize that it is lacking in campus disciplinary proceedings,” Valois told PJ Media.

“Now is not the time for complacency,” said Valois.

Noted signees include Cynthia Garrett of Families Advocating for Campus Equality (FACE), National Coalition for Men board member Marc Angelucci, University of Southern California Professor James Moore, and many others (click here to see the full list).

In an interview with PJ Media, Cynthia Garrett, who also is a California lawyer, said she signed SAVE’s letter to “help get the message out.”

“We’ve seen a combination of factors come together to historically reduce due process in Title IX investigations, one of which is the [now retracted] 2011 Dear Colleague Letter,” said Garrett by phone Monday.

“It lowered the standard of evidence, broadened the definition of sexual misconduct, and allowed the Department of Education to pursue colleges for perceived infractions in a more punitive manner,” said Garrett of the 2011 DCL.

Under the Obama-era zeitgeist, Title IX investigators began presuming every man is a rapist and every woman is a victim, suggested Garrett, who has consulted with hundreds of college men and women over the past decade on Title IX-related issues.

“These students often have had no notice of what they’re accused of, no access to evidence, no ability to find witnesses, no ability to see the evidence… so, that’s what happens to accused students in most cases,” she added.

Three members of the James G. Martin Center for Academic Renewal — a noted education nonprofit in North Carolina — also added their names to the list.

“We signed on with SAVE’s letter because far too little attention has been given to the serious due process problems under Title IX,” said George Leef, who serves as one of the Center’s experts on education policy.

While the proposed Title IX regulations are subject to change, many lawyers view Betsy DeVos’s proposal as a good sign.

Professors Condemn ‘Victim-Centered’ Title IX Investigations in Open Letter

“Due process and the presumption of innocence are important,” said Texas lawyer Mark Pulliam when asked why he signed. “But when they disappear, what’s left is raw power. If you take freedom seriously, raw power is a scary thing.”

Going forward, members of the public can provide feedback on the proposed regulations anonymously or otherwise by visiting this webpage. The ability to provide input is slated to end on January 28, 2019 at 11:59pm.

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294 Legal Experts, Lawmakers, And Attorneys Sign Letter Supporting Due Process For College Students

 In response to negative mainstream media coverage of new rules from the Department of Education that would provide college students accused of sexual assault basic fairness and due process, an organization that works to end domestic violence and sexual assault has organized a letter of support for the new rules.

Stop Abusive and Violent Environments (SAVE) has been one of the leading voices working to get basic constitutional rights in campus tribunals, and released a statement in support of granting such right to college and university students. The statement said that “fair and non-biased disciplinary proceedings are essential for the investigation and adjudication of sexual misconduct allegations on college campuses.” It also said “investigations that are balanced, objective, and fair are an essential element of due process” and “both complainants and the accused benefit from an even-handed and transparent process that guarantees procedural due process.”

A survey from the Bucknell Institute for Public Policy, conducted by YouGov earlier this year, found that Americans still believe in due process even after a sustained media campaign against it when it comes to male college students, celebrities, and even Supreme Court nominees accused of sexual assault. Results from the study showed that high levels of Americans — whether Republican, Independent, or Democrat — support due process and what goes with it, such as the right to cross-examine one’s accuser.

Eighty-one percent of those polled said that those accused should have the right to be informed of the charges against them (current campus policies do not support this right in many cases), 61% believe the accused should be able to cross-examine their accusers (the Obama administration actively discouraged this), and 67% said students accused of crimes on campus should have the same legal protections as they would in a court of law.

Several lawmakers have also signed the letter, including Republican Frank V. Sapareto, vice chair of the Criminal Justice & Public Safety Committee in the New Hampshire House of Representatives.

In addition to lawmakers, attorneys, and law professors, the letter also contains signatures from other scholars and even a retired NASA scientist.

The new proposed rules from the Education Department are now up for comment before becoming official. When the Obama administration created new campus sexual assault rules, it did not follow proper procedure by allowing experts and the public to comment on the rules before they were mandated. Following these procedures will give the new rules extra heft, and will hopefully stop the moral panicsurrounding sex on college campuses.

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Trump Administration Rollbacks Protect, Rather than Endanger, Civil Rights

The Congressionally-appointed U.S. Commission on Civil Rights, often labeled a “watchdog” group, has raised concerns about Secretary Betsy DeVos’ Department of Education and its enforcement of civil rights statues. But in reality, DeVos’ department is returning to long-held interpretations of civil rights guarantees such as Title IX and racial equity in school discipline, after President Obama’s administration pushed them far beyond their boundaries. Using his infamous “pen and phone,” President Obama often pushed the boundaries of statutory interpretation, moving beyond language designed to protect the equal rights of women and racial minorities to advance a far-left agenda that has had serious negative consequences on the ground.

Title IX guidance from the Obama administration has spurred the spread of kangaroo court-style sexual misconduct “trials” in universities. Just last month, a freshman at UC Davis spent months of his life and $12,000 defending himself in a Title IX court for a make-out session that was clearly not only consensual, but mutual. An African-American student is suing Brown University for discrimination after the university barred him from campus in which a girl “bit, choked, and pinned him,” but later filed a Title IX claim. The Obama guidelines produced a system so absurd that the roles of victim and perpetrator in a drunken hookup can be assigned by the order in which students report the incident.

Americans recently watched these reputation-destroying new norms metastasize onto the political scene in the Kavanaugh hearings, and poll results indicate they did not like what they saw. A large, bipartisan majority of 75 percent disagreed with the way the accusations against then-Judge Kavanaugh were handled by the Democrats, and almost 70 percent agree that false accusations are some type of problem in the workplace, directly contradicting the “believe all women” slogan of campus-style feminism.

Furthermore, having the opportunity to observe what was for all intents and purposes an Obama administration-endorsed Title IX “trial” play out on the national stage may have done long-term damage to professional and personal relationships between the sexes. In a new survey, 40 percent of men would rather be falsely accused of murder than sexual assault, compared with just 22 percent who preferred the latter, almost certainly because almost 60 percent of all respondents, men and women, said that men accused of sexual misconduct do not have the benefit of being presumed innocent absent evidence.

Are these the “civil rights” the U.S. Commission is concerned DeVos is not enforcing sufficiently? If so, Americans are indicating by wide margins that they would prefer the Department of Education focus on bringing to justice violators of the actual rights that Title IX is intended to protect, rather than engaging in witch hunts that upend other important rights-protecting norms like the presumption of innocence and cross-examination of accusers.

Likewise, investigations into school districts for racial disparities in discipline rates has produced not just bad policy, but arguably tragedy.

While specific incidents of suspected racial bias in public schools should absolutely be investigated, once again, the Obama Department of Education issued overly-broad guidance that strongly incentivized schools to move away from traditional discipline practices. The result in many districts has been that students who repeatedly engage in violent behavior have been slipping through the cracks. Most famously, the Parkland school shooter had no criminal record despite multiple potentially criminal behavioral incidents, due to the reluctance of the district to bring formal disciplinary charges or involve law enforcement. Those same Parkland policies were praised and pushed by the previous administration, with dubious statutory authority, in the name of “civil rights.”

Civil rights statutes are meant to ensure that students of color have the same opportunities to receive a public education as white students, not to micromanage the on-the-ground discipline decisions of teachers and incentivize districts to accept lax, sometimes dangerous, discipline standards. When the Trump administration undoes some of these attempts to push social policy well beyond the boundaries of civil rights law, it is not threatening rights in this country, but ensuring that federal law is enforced properly.

Two Commission on Civil Rights appointees voted against the politicized resolution condemning DeVos, and some speakers highlightedthe normalcy of the Department’s pushback against overbroad interpretations. “Conservatives, including conservative civil rights lawyers, tend to feel bound by statutory and constitutional text. As such, advocacy groups and others that want, in the absence of statutory authority, to advance issues such as transgender rights, are disappointed,” said Robert Driscoll, a former DOJ Civil Rights Division deputy assistant attorney general under the Bush administration.

DeVos’ more narrow interpretations of federal law will help to reverse some of the unintended consequences of the previous administration’s overreach. That the Department of Education is pulling back from some of the most extreme interpretations of the Obama era is not cause to worry that it is abandoning its obligation to enforce civil law statutes. Instead, DeVos’ insistence on staying within the boundaries of reasonable Congressional intent instead of legislating via administrative fiat is a welcome return to Constitutional governance.

Source: http://iwf.org/blog/2807995/Trump-Administration-Rollbacks-Protect,-Rather-than-Endanger,-Civil-Rights