‘Terribly Mistaken:’ SAVE Urges Media to Cover Title IX Story in a Balanced, Objective Manner
WASHINGTON / November 21, 2018 – Following a “terribly mistaken” ABC report that made “patently false claims” about the newly released Title IX regulation, SAVE is urging media representatives to assure their coverage of the campus sexual assault issue is balanced, objective, and fair.
The following day, Anne Flaherty of ABC News published an article about the new regulation that stated, “One of the biggest changes to the rule would be a new definition of sexual harassment….The new rule would define sexual harassment as unwanted sexual conduct that is ‘so severe, pervasive and objectively offensive that it denies a recipient’s education program or activity.’” Flaherty mistakenly concluded, “That definition would be significantly more difficult to prove because the victim would have to prove the misconduct prevents them from returning to school.” https://abcnews.go.com/Politics/betsy-devos-pitching-protections-students-accused-sexual-assault/story?id=59231922
In response, commentator Robby Soave highlighted the flaw of that conclusion: “The new standard does not require victims to show that they can’t return to school. Indeed, it doesn’t require them to leave school in the first place. What this new standard says is that severe, pervasive, objectively offensive sexual harassment that negatively impacts a student’s ability to attend class is a form of discrimination.” https://reason.com/blog/2018/11/16/abc-title-ix-betsy-devos-false-severe-pe
Legal expert David French characterized the ABC claim as “terribly mistaken,” and described how the flawed ABC conclusion had been disseminated across the internet. French also took issue with ABC’s attribution of the proposed changes to a “small group of men’s rights groups,” ignoring the fact that several groups of law professors have written letters strongly critical of the current system of campus adjudications. https://www.nationalreview.com/corner/abc-news-story-serious-mistake-title-ix-rule-change/
SAVE notes that complainants should not be described as a “victim” until after a finding of “responsibility” or “guilt” has been rendered. In a lawsuit against Brandeis University, Judge Dennis Saylor ruled, “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.” https://newbostonpost.com/2016/04/01/judge-rips-brandeis-for-handling-of-sexual-assault-case/
Conversely, SAVE will publicize articles that do not meet minimum journalistic standards.
A 2017 YouGov poll revealed strong support for the restoration of due process in campus sexual assault cases. The survey queried whether “Students accused of crimes on college campuses should receive the same civil liberties from their colleges that they receive in the court system.” Among the 1,200 persons responding, 65% of Democrats, 77% of Republicans, and 67% of Independents expressed agreement with the statement. http://bipp.blogs.bucknell.edu/files/2017/09/BIPP-Higher-Ed-Toplines.pdf
The SAVE Statement on the Proposed Title IX Regulation calls on “all stakeholders in this important issue to engage in thoughtful and reasoned debate how to restore due process and fairness on college campuses.” To this end, SAVE has identified the following news stories and editorials that are accurate, thoughtful, and fair:
The purpose of campus disciplinary committees is to impartially investigate a complaint of sexual misconduct, determine the truthfulness of the allegation, and impose appropriate sanctions when indicated. The procedures that are followed to assure an accurate determination and just outcome are referred to as “due process.” Due process protects the rights and interests of both the complainant and the accused.
In 2011 the federal Office for Civil Rights issued a Dear Colleague Letter on Sexual Violence that served to remove many due process protections.[1] Not surprisingly, men and women filed hundreds of lawsuits against their universities and complaints with the OCR during the subsequent years.
In one recent case, Iowa State University agreed to make payments of more than $400,000 to a female student and to its former Title IX coordinator for gross mishandling of credible allegations of sexual assault.[2]
In another recent case involving the University of California-Santa Barbara, a male student filed a lawsuit because his accuser recanted the allegation. Superior Court Judge Thomas Anderle ruled the university’s conduct was “arbitrary and unreasonable,” and ordered the university to allow the student back on campus.[3]
The SAVE report, Six Year Experiment In Campus Jurisprudence Fails to Make the Grade, documents dozens of other cases where complainants and the accused were shortchanged by the deeply flawed procedures of campus “Kangaroo Courts.”[4]
SAVE welcomes the release of the new Title IX regulations, and calls on all stakeholders in this important issue to engage in thoughtful and reasoned debate how to restore due process and fairness on college campuses.
Students accused of sexual misconduct would gain greater protections and colleges investigating complaints could face reduced liability under sweeping new regulations proposed on Friday by the U.S. secretary of education, Betsy DeVos.
Pool, Getty Images
Under draft regulations proposed by the Education Department under Betsy DeVos, the rights of accused students would be strengthened and colleges’ liability would be lessened. But it’s unclear when final rules will be issued and if they will follow the draft language.
The long-awaited rules would replace the Obama administration’s Title IX guidance, which had called for more-aggressive enforcement of the 1972 law mandating gender equity among colleges that accept federal money.
DeVos rescinded that guidance in 2017 and promised that formal rules would follow. The proposed regulations, released on Friday but not yet officially published in the Federal Register, won’t take effect until the public is given 60 days to weigh in.
Here are five things you need to know about the regulations:
A person accused of sexual misconduct would be guaranteed the right to cross-examine the accuser. This provision marked the biggest change from the draft that had been leaked in August. The questioning would have to be done in a live hearing by a lawyer or other adviser, but the parties could be in separate rooms, using technology if needed. The Obama-era guidance had discouraged direct cross-examination because of its potential to retraumatize victims.
Colleges’ responsibilities to investigate would be limited to cases in which there are formal complaints and the alleged incidents happen on campus or within an educational program or activity. Critics point out that many alleged incidents of sexual misconduct happen at apartments that are located just off campus, and it’s not clear those would have to be investigated.
The definition of sexual harassment colleges are required to act on would be narrower.The new rules would define sexual harassment to include “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 recipient’s education program or activity.” The Obama administration defined harassment as “unwelcome conduct of a sexual nature.”
Colleges would have the option of using a higher standard of proof. When deciding whether sexual misconduct occurred, the Obama-era guidance told colleges to adopt a “preponderance of the evidence” standard, which means that it’s more likely than not that the misconduct had occurred. The new rules would allow colleges to apply either that minimal standard or the higher “clear and convincing evidence” threshold. Both are less stringent than the “beyond a reasonable doubt” standard usually needed for criminal convictions.
Colleges would have more leeway to use mediation and other informal resolution procedures. Previous guidance had said that mediation — versus a formal investigation and adjudication process — was not appropriate in cases involving an alleged sexual assault. The concern was that alleged victims might feel pressured by their colleges to participate and that the process could be traumatizing. Proponents said it could appeal to students who don’t want the person who assaulted them suspended or expelled. The proposed regulations say colleges may opt for an informal resolution at any time, provided that both parties voluntarily agree to it.
The document spells out specific measures colleges should take for students whether or not they file formal complaints. Those could include counseling, deadline extensions, no-contact orders, and changes in class schedules.
The changes proposed in the 149-page document would save an estimated $286 million to $368 million over the next decade, the Education Department contends, and would ensure “fair, reliable procedures that provide adequate due-process protections for those involved in grievance processes.”
Under the Obama-era guidance, colleges were not sure whether the guidelines were legally binding, the new regulations say. Some felt that “those guidance documents pressured schools and colleges to forgo robust due-process protections; captured too wide a range of misconduct, resulting in infringement on academic freedom and free speech, and government regulation of consensual, noncriminal sexual activity; and removed reasonable options for how schools should structure their grievance processes to accommodate each school’s unique pedagogical mission, resources, and educational community.”
Under the previous guidance, the document says, “hundreds of students have filed complaints with OCR [the department’s Office for Civil Rights] alleging their school failed to provide a prompt or equitable process in response to a report of sexual harassment, and over 200 students have filed lawsuits against colleges and universities alleging their school disciplined them for sexual misconduct without providing due-process protections.”
Reaction to the regulations was swift, with ranking Democrats in the House and Senate condemning the proposals as undermining support for sexual-harassment victims.
The Trump Administration is trying to take another step toward sweeping the scourge of sexual assault under the rug, weakening protections for students and survivors, and allowing colleges and universities to shirk their responsibility to keep students safe.
Despite the argument that the regulations will simplify matters for colleges, “it opens up all sorts of gray space for campuses,” said Peter F. Lake, who leads the Center for Excellence in Higher Education Law and Policy at Stetson University.
“The big winner here is for lawyers suing schools,” he said. “It could easily lead to a flood of litigation.”
Others, including the Foundation for Individual Rights in Education, a free-speech advocacy group, said the rules would make the adjudication process fairer for everyone involved.
The proposed regulations include a number of important procedural protections that will improve the integrity of the process for everyone.
FIRE looks forward to offering public comment and working toward final regulations that are fair and just for all parties.
To some, the most controversial part of the new regulations is the requirement that accused students be allowed, through a third party, to cross-examine their accusers at a live hearing.
The rules would stipulate when it is appropriate to ask about a person’s sexual history and generally forbid questions that are harassing or irrelevant.
Given a recent federal-court ruling, college officials were already on notice that they needed to consider how to incorporate meaningful cross-examination into their processes, said Courtney Bullard, a former general counsel at the University of Tennessee at Chattanooga who now works in private practice.
At many institutions, especially small colleges where there is a limited pool of hearing panelists, cases are handled by a single investigator — usually an administrator or an outside lawyer — who conducts the interviews, writes a report, and issues a finding about whether campus policies were violated. The current regulations would not allow that.
There are pros and cons to cross-examination, she said. She’s concerned about cases in which one student has a lawyer as an adviser and the other does not.
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.
“Having a student cross-examined by an attorney is just difficult to watch,” she said. “It doesn’t feel right in an educational setting. It doesn’t feel appropriate.”
Jeffrey J. Nolan, a lawyer who advises colleges on Title IX issues, said that requiring cross-examination “could affect the willingness of people to report sexual assault, if they picture themselves in a courtroom being yelled at about their sexual history the way you see on TV shows.”
Allowing an accused person to cross-examine the accuser, even through a lawyer, is “a horrible idea,” said Colby Bruno, senior legal counsel for the Victim Rights Law Center.
“Rape is about power and control and not about sexual desire,” she said. “Therefore, it is a bad idea to give the person with the power even more power to intimidate and hurt the victim.”
Carly N. Mee, senior staff attorney for the advocacy group SurvJustice, sees potential problems in trying to put the accused and accusers in different rooms in order to avoid face-to-face questioning. She has represented accusers who were required to dial in on Skype while the accused was in the hearing room, only to be frustrated when videos failed and sound quality was poor.
She sees the proposed changes as part of a larger, troubling pattern in the new regulations. “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,” Mee said.
But advocates for accused students say the deck is stacked against them when they can’t question their accusers. Cynthia Garrett, a lawyer and leader of an advocacy group called Families Advocating for Campus Equality, said cross-examination is critical because it allows parties and decision makers the chance to observe responses in real time, observing inconsistencies in testimony and assessing a witness’s demeanor.
When questions are funneled through a hearing-panel member or investigator, “sometimes very few of the questions are actually asked, those that are asked are rephrased in a manner that undermines the effectiveness of the question, and almost never are follow-up questions asked,” she said.
Raising the Bar for Investigations
Other aspects of the proposed regulations — such as the narrower sexual-harassment definition, the choice of which standard of evidence to use, and the language about “formal complaints” — remain similar to the draft document that was leaked in August to the Times.
The new rules could raise the bar for when a college is required to open an investigation, said Taylor Sinclair, director of Title IX for the Nebraska State College System. That doesn’t mean that colleges won’t deal with complaints that no longer meet the threshold.
Under the new rules, Title IX officers would probably spend more time educating people about navigating relationships and establishing boundaries, instead of investigating, she said. More might turn to the kinds of informal remedies that are already used in many cases.
“It changes the lens through which we look at misconduct and how the college decides who’s a victim and who’s not,” she said.
She worries, though, that when some victims are told that their complaint doesn’t meet the threshold, they’ll disappear. Some might not come forward at all.
“We’re going to miss opportunities to help students, to solve problems, if we overlook these claims,” she said. She’d like to see a definition that’s somewhere in between the Obama-era “unwelcome conduct of a sexual nature” standard and the newly proposed one.
Even though colleges may be allowed to use a higher standard to determine whether a person has been a victim of sexual misconduct, many that use the preponderance-of-evidence standard are likely to stick to it because of the backlash they could face, several Title IX lawyers interviewed said.
Changes in Mandatory Reporting
Another change that has already generated a lot of debate is that colleges would be legally responsible for handling only those formal complaints that are made by an official who has the ability to remedy the situation. That doesn’t include reports from professors, resident advisers, and others.
Over the last few years, many colleges have adopted policies that designated nearly every campus employee as a mandatory reporter of sexual misconduct who must alert the Title IX office whenever they hear about a possible incident.
Some faculty members have criticized the policies because they felt they were forced to disclose confidential conversations with students.
But if colleges respond by designating fewer people as mandatory reporters or limiting when they’re required to contact the Title IX office, that would shrink the pool of people combating sexual violence, some worry.
Mandatory-reporting policies often help Title IX coordinators identify patterns of misconduct, supporters say. If three people tell three different professors about incidents involving the same student, and the faculty members fulfill their obligation to report to the Title IX office, administrators can spot the trend and react.
From a legal-liability standpoint, campuses would be better off if there were fewer mandatory reporters, said Bullard, the former general counsel at Chattanooga. Colleges would no longer be liable if someone told a faculty member about an incident and that faculty member didn’t report it to the Title IX office.
Nowadays, however, many students have expectations about what’s going to happen when they disclose an alleged assault, Bullard said. A culture of mandatory reporting has taken hold on many campuses. “It’s tough to untrain people,” she said.
“When a student tells a campus administrator something, they ultimately think that person has the ability to fix their problem,” she added. “And then later, they’re upset about it because they feel like they told someone who has the ability to fix the issue.”
A ‘Good Faith’ Approach
The colleges that Bullard works with are always “hungry for guidance,” she said. They say: “Give me something solid to rest my decisions on.” Ultimately, she said, that’s what these regulations might provide, which colleges would welcome.
The proposed regulations, she said, appear to take more of a good-faith approach, in which if campus administrators follow their policies and act in good faith, they won’t face a serious reprimand from the federal government.
“The end game is, it should take some of the pressure off of institutions,” she said. “But in the middle of all that, it’s going to be yet another re-evaluation. This is what they’ve been doing since 2011.”
Bisi Okubadejo, a lawyer who worked for the Department of Education’s Office for Civil Rights during both the Bush and Obama administrations, isn’t convinced that the new regulations would reduce colleges’ liability.
Okubadejo, who now advises colleges about their obligations under Title IX, said more accused students might sue if the protections the new rules call for aren’t provided by their campuses.
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.
Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.
Education Secretary Betsy DeVos on Friday released her long-awaited rewrite of rules governing campus sexual harassment and assault allegations, narrowing the cases schools must investigate and giving the accused more rights.
The proposal came under immediate fire from women’s rights groups and Democrats, who said the rules would allow assailants and schools to escape responsibility for harassment and assault and would make college campuses less safe for women.
But others said the proposal restores balance in a system that had been skewed too far in favor of the accusers.
DeVos said she had worked to strike a balance while creating a more transparent and reliable process.
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas,” she said.
Under the proposal, fewer allegations would be considered sexual harassment and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Schools could choose a higher legal standard for considering evidence.
The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct. They land at a time when the #MeToo movement brought increased public scrutiny and accountability to harassment and assault. This proposal, by contrast, pushes the pendulum in the reverse direction.
“I am dismayed with the Trump administration’s cruel proposal that will have the effect of putting power in the hands of abusers & dissuading survivors from coming forward,” John B. King Jr., who served as education secretary in the Obama administration, said on Twitter.
The most divisive aspect of the proposal may be allowing attorneys for the accused to cross-
examine accusers.
The proposed rule goes too far in incorporating legal concepts into a school disciplinary setting, argued Terry Hartle, a senior vice president at the American Council on Education, which represents university presidents.
“This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing,” he said. “We are not courts. I’m not sure we should try to act like courts.”
But advocates for the accused called this an essential change that could help counter inherent bias among college administrators who investigate incidents.
“Cross-examination is the most effective method to get to the truth,” said Kimberly C. Lau, who leads the college discipline practice at the law firm Warshaw Burstein.
The regulations stem from a 1972 law known as Title IX that bars sex discrimination at schools that receive federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools.
Unlike less formal Obama-era guidance that is being replaced, the new plan is a proposed regulation that will be subject to public comment and, once finalized, carry the force of law.
Critics said the Obama approach was confusing for universities and improperly made outside the formal rulemaking process.
Using guidelines “allowed the Obama Department of Education to essentially make up rules that had no basis in any relevant statute or Supreme Court opinion,” said David Bernstein, executive director of the Liberty & Law Center at the Antonin Scalia Law School at George Mason University.
Overall, the proposed regulation describes what constitutes sexual harassment or assault for the purpose of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations and how a school must respond.
Citing Supreme Court precedent, the proposal puts forth a narrow definition of harassment. Obama-era guidelines held that harassment was “unwelcome conduct of a sexual nature.” The proposed regulation defines it as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
The regulation also limits the circumstances that would mandate a school respond to an incident. The school must have “actual knowledge” of the allegations. At colleges and universities, that means the incident must have been reported to “an official with authority to take corrective action,” including the school’s Title IX coordinator. For K-12 schools, the report could go to any teacher.
In addition, the incident must have occurred within a school’s own programs or activities. That could include off-campus incidents if it were, for instance, in a building owned by the school, or at an event the school funded, sponsored, promoted or endorsed.
Once a school knows about an allegation, it is required to take it seriously. But the regulation specifies that it will be punished by the Education Department only if its actions are “clearly unreasonable in light of the known circumstances.”
The regulation also specifies that even if no formal complaint is filed, the school must offer the accuser supportive measures. It says colleges and universities doing this have a “safe harbor” from a later finding that they had failed to act. Elementary and secondary schools, however, may be required to file a formal complaint even if the victim does not want one, given “the need to protect younger students.”
In investigating complaints, schools are required to implement a range of due-process procedures, including a presumption of innocence, the opportunity to present witnesses and evidence, and the right to an adviser or attorney at all phases of the process.
Hearings are optional for K-12 schools, but for colleges and universities, a final decision must be made at a hearing. Cross-examination must be allowed but conducted by advisers or attorneys, not by the parties themselves. The regulation also provides “rape shield protections,” such as a bar on questions about an accuser’s sexual history.
Schools would be allowed to choose the standard they will use between “preponderance of the evidence” or the higher bar of “clear and convincing evidence.” But a school may not use the lower standard if it relies on the higher one for allegations against employees, including faculty members.
In addition, the regulation would require that the final determination in a case be made by someone who did not conduct the investigation, nullifying arrangements often used in which a single investigator does both.
Those procedural changes are important, said attorney Andrew Miltenberg of New York, who has represented more than 100 students accused of sexual misconduct. But he predicted that most universities will maintain the lower evidentiary standard in response to campus pressures.
“I think most universities are going to stay the course for fear of becoming ground zero for activists to say, ‘Look how terrible rape victims are being treated at this university,’ ” he said.
He said, though, that the new sexual harassment definition, requiring the behavior to be both severe and pervasive, “may be a little too restrictive.”
Suzanne Taylor, the University of California’s interim systemwide Title IX coordinator, said the new rules will “reverse decades of well-established, hard-won progress toward equity” but said the UC system would remain “steadfast in its commitment to combating sexual violence.”
In a federal lawsuit filed Tuesday, two former students claim they were kicked out of school after Purdue couldn’t find enough evidence in their sexual assault reports
(Editor’s note: Purdue released a statement Thursday, after this initial count published. This version has been updated to reflect Purdue’s reaction.)
WEST LAFAYETTE, Ind. — Two former Purdue University students say the university kicked them out of school after investigators retaliated when they couldn’t find enough evidence to back claims that the women had been sexually assaulted, according to a federal lawsuit filed Tuesday.
The suit, filed under the pseudonyms of Mary Doe and Nancy Roe, claims that Purdue is working under a policy – “either written or unwritten” – in which “women who cannot prove their claims to the satisfaction of Purdue decision-makers face discipline up to expulsion.”
The suit, filed in the U.S. District Court in Indiana’s Northern District, names Purdue, along with Katie Sermersheim, Purdue’s dean of students, and Alyssa Rollock, vice president for ethics and compliance at the university.
“I suspect there’s been some sort of overreaction over there to the way they were criticized for handling complaints,” said Jeff Macey, an Indianapolis attorney representing the two women and their claims that Purdue violated federal Title IX protections for victims of sexual assault.
“But the school cannot be expelling or otherwise disciplining women if the investigation doesn’t come out in their favor,” Macey said. “And I’m afraid that’s what’s happening there. And that’s just a real chilling, chilling effect on victims who are complaining under the Title IX processes the university has set up.”
Tim Doty, a Purdue spokesman, said on Wednesday that university officials had not been served with the lawsuit. On Thursday, Doty released a statement from the university.
“To the extent the case challenges the university’s handling of complaints under our anti-harassment policy and procedures, we stand by our commitment to provide a safe and secure environment for all members of our community,” Doty said. “These are often difficult matters to investigate and decide, but we are confident in our processes and believe they afford all students with broad and appropriate protections, whether they are raising allegations of sexual misconduct or responding to them. Fair application of our policy necessarily entails ensuring all parties participate in the process in good faith by providing truthful information to assist the university in making its determinations.”
The lawsuit claims the women didn’t know each other and that their reports of sexual assaults were not related. The suit also claims the reports about sexual assault were made about different men. Macey declined to answer questions about how they wound up in the same lawsuit.
The women initially were expelled from Purdue, with their discipline reduced to two-year suspensions.
Macey said the women, now 20 and 21, were treated “as if they were the accused harassers” by investigators who “made discriminatory assumptions” about their behavior, while dealing out smaller punishments to the men in each case.
Here are the particulars, as claimed in the lawsuit.
► Doe, a freshman at the time, reported on Oct. 10, 2017, to the Purdue University Police Department that she’d been assaulted in her residence hall room by a male student who had already landed on the university’s persona non grata list, banned from campus “because of his conduct directed against a different female student.”
The suit claims the Purdue police reported the incident to the university, which launched its own investigation. The suit does not say why Purdue police turned the investigation over to the university.
The suit claims Doe spoke with a university investigator at the start, but then quit participating. The investigation went on, according to the suit. The suit claims that the investigation turned, treating Doe – without her knowledge – as the target.
“Contrary to its own policy,” the suit claims, “defendants made credibility findings against Doe based on her decision to not participate in the investigation.”
The university eventually alleged that Doe fabricated her account of the assault and expelled her, before reducing the punishment to a two-year suspension on Feb. 22, 2018.
► Roe, a junior at the time, said she was sexually assaulted April 17, 2017, in her dorm room, after a male student walked her home from a party at a fraternity. The suit claims she was intoxicated and incapable of giving consent for sexual intercourse. The suit claims the man sexually assaulted her, making audio recordings of what was happening.
The suit says that Roe became concerned about what might have happened the night before when she discovered bruising on her neck after going to class the next day. That’s when she sought medical treatment and reported the incident to the university. After Purdue investigated, the suit said, Roe was accused of reporting the assault maliciously and expelled her. Her expulsion also was reduced to a two-year suspension on Oct. 17, after she appealed.
The suit claims that when Purdue found out that the fraternity member in Roe’s case had recorded her without her consent, it assigned him a 10-page paper as a punishment. The topic of the paper was not mentioned.
Macey said the initial intent of the lawsuit is to get the two women reinstated at Purdue.
“This has really derailed their education careers,” Macey said.
Beyond that, he said, Purdue should be on notice about how it handles sexual assault investigations.
“Just because Purdue doesn’t believe you doesn’t mean you’ve maliciously set out to harm somebody, which is my understanding of what the standard is for expulsion,” Macey said.
“You don’t want a situation where you have someone risking their academic career to even raise a complaint. And it appears Purdue’s moved in that direction. And to that extent, that’s the policy we’re challenging.”
Reach Dave Bangert at 765-420-5258 or at dbangert@jconline.com. Follow on Twitter: @davebangert.
Editor’s Note: This is part three of an investigation to track the amount of money charged in recent Title IX cases against Iowa State. Part one was published Feb. 16, 2016, part two was published May 29, 2018.
More than $400,000 has been spent since 2016 as a result of Title IX lawsuits against Iowa State. Students and taxpayers have helped foot the bill.
Iowa State had four Title IX suits filed against it by two former students and the former Title IX coordinator, since 2016. Iowa State retained services from Husch Blackwell, a law firm operating out of Kansas City, Missouri.
University counsel Michael Norton was a partner at Husch Blackwell for 12 years before starting at Iowa State.
As of Oct. 25, 2018, $416,016.88 has been spent on the four Title IX suits.
The money going to Husch Blackwell is paid out from the general university budget, which in 2016 was composed of 58.9 percent tuition.
The settlements paid to former student Taylor Niesen and former Title IX director Robinette Kelley come from the state litigation fund, paid for by an Iowa General Fund appropriation. The fund was composed of 91.9 percent tax dollars in 2017, according to the Iowa Legislature.
Niesen received $47,500 in May 2018. The firm representing Niesen received $32,500 of the settlement, and she received $15,000. Kelley received $125,000 in August 2018. Kelley received $75,000 of the settlement and the firm representing her received $50,000.
Melissa Maher v. Iowa State Et Al., the only case that has not ended in a settlement, was dismissed by the Chief U.S. Magistrate Judge Helen Adams on Feb. 14, 2018. Maher, a former Iowa State Student, and her attorney Andrew Zbaracki have since appealed the dismissal.
The Maher case is now listed as being in the Eighth Circuit U.S. Court of Appeals. Zbaracki told the Daily the court has yet to set a date for oral arguments.
While the total paid to Husch Blackwell may be eye-popping in an era of increased tuition and decreased funding to higher education, Norton said the price and service provided by Husch Blackwell has been satisfactory.
Norton told the Iowa State Daily in February 2018 there is not a limit at which Iowa State will no longer contract Husch Blackwell for legal services.
Norton provided the Daily with a statement through John McCarroll, executive director of public relations at Iowa State.
“When sued, the University has a legal obligation to respond and to present a defense,” Norton said. “Even more importantly, the University defends itself in litigation to protect the assets of the University, which are public assets.”
Norton explained the costs of representation are due to hiring outside representation. In recent Title IX cases, Iowa State has hired Husch Blackwell, Norton’s former firm.
“In complex cases, as in the case of Title IX litigation, where the Attorney General’s office requires additional substantive support or where a conflict exists, such as in the Kelley state litigation, outside litigation counsel must be hired,” Norton said. “There is no other alternative. In the Title IX cases, the University engaged nationally recognized experts in Title IX issues who have represented institutions of higher education across the county in complex litigation.”
The hourly rate of $305 Iowa State is paying Husch Blackwell is “extremely reasonable,” Norton said.
“Moreover, the University has received excellent value for the amount spent,” Norton said. “The partnership between the Office of University Counsel, the Attorney General’s Office, and [Husch Blackwell] has resulted in the favorable resolution (through judicial opinion or settlement) of all pending Title IX litigation.
“The University currently has no active Title IX litigation cases.”
Norton criticized the Daily’s reporting of the total spent. The Daily has included settlements paid to plaintiffs suing the university in reporting.
“Reporting that the ‘total spent’ is $416,000 is misleading,” Norton said. “The University has spent roughly $244,000 in legal fees and expenses. (This is approximately $40,000 more than the amount [the Daily] reported in a similar story earlier this year.) The remaining amount is settlement payments. The University did not pay these settlements. Rather, these payments were made from the state litigation fund, and the State Appeals Board approved the specific settlement payments.”
Although Norton claims the Daily’s reporting is misleading, in the story he is referencing, published May 29, 2018, the Daily accurately reported on where the settlement funds came from. The May 29 story contained the following excerpt as the first two paragraphs in the story:
“Iowa State has been charged $205,492.17 by Husch Blackwell to defend the university in three Title IX related lawsuits, a state discrimination lawsuit and to provide general advising in Title IX litigation.
An additional $47,500 was spent from the state litigation fund approved by the state board of appeals to settle the Taylor Niesen vs. Iowa State case.”
Note: Emily Berch contributed reporting about the state of the Maher appeal in this article.
WASHINGTON / November 12, 2018 – Several non-partisan, national surveys point to widespread public concern about the erosion of the presumption of innocence and due process in our country, the problem of false allegations, and a pressing need to reinvigorate these bedrock principles of fairness in our legal system.
Public concern was first spotlighted in a 2011 SAVE survey that reported 9.7% of persons report they have been falsely accused of sexual assault, domestic violence, or child abuse. One in six of the respondents personally knew someone who said he or she had been falsely accused of domestic violence, child abuse, or sexual assault (1).
A 2013 survey commissioned by the Center for Prosecutor Integrity found that 66.8% of respondents believe the presumption of innocence is becoming lost in our legal system. In addition, 42.8% of persons say prosecutorial misconduct has become widespread (2).
A 2017 YouGov poll revealed strong support for the restoration of due process in campus sexual assault cases. The survey queried whether “Students accused of crimes on college campuses should receive the same civil liberties from their colleges that they receive in the court system.” Among the 1,200 persons responding, 65% of Democrats, 77% of Republicans, and 67% of Independents expressed agreement with the statement (3).
A poll by Ipsos/NPR found 80% of men and 73% of women believe that those who are accused of sexual harassment should be given the benefit of the doubt until proven otherwise. The survey was conducted October 22-23, 2018 with a sample of 1,003 adults (4).
Much of the shift in public perceptions can be linked to the controversies associated with the #MeToo movement.
Morning Consult recently found 57% of U.S. adults say they are equally worried about men facing false allegations of sexual assault as they are about women facing sexual assault. Overall support for the #MeToo movement has dropped 2% over the last year, the survey found (5).
A survey conducted by YouGov and the Economist in October revealed 18% of Americans now think false accusations of sexual assault are a bigger problem than attacks that go unreported or unpunished, compared with 13% one year ago. These shifts in public opinion against complainants have been stronger among women than men, the Economist noted (6).
SAVE has developed a Due Process Statement that urges members of Congress to “speak out in support of Constitutionally rooted due process rights on campus.” Over 285 law professors, scholars, and state lawmakers have signed the Statement. SAVE invites additional state lawmakers to become co-signers. For more information, contact mvalois@saveservices.org.
New Education Department Rules to Change Procedures for Campus Sexual-Assault Cases
By
Michelle Hackman
Oct. 31, 2018 6:37 p.m. ET
WASHINGTON—New federal rules governing campus sexual-assault cases will require that accused students be allowed to cross-examine their accusers, according to people familiar with a draft of the rules.
The requirement marks a shift from an initial draft of the new rules, leaked in August, which Trump officials are writing to replace a set of Obama-era guidelines they feel didn’t provide sufficient protections for students accused of sexual assault.
The rules, which Education Secretary Betsy DeVos will likely publish in November, will narrow the definition of sexual assault that schools are required to adjudicate and restrict eligible cases to those that occur on campus. The rules will be subject to a comment period before taking effect.
The rule changes fall under Title IX, a 1972 law barring gender discrimination in schools and colleges that receive federal funding.
In the earlier draft, the administration initially proposed providing schools with the option of incorporating cross-examination into their procedures.
The current version would make a cross-examination provision mandatory, though questions could be funneled through a neutral party and students could be seated in separate rooms. The rules would also bar accused students from asking their accusers inappropriate questions, such as details of the accuser’s sexual history.
The modification echoes the goals of some university administrators, men’s rights activists and due-process advocates who believe students accused of behavior that could result in their expulsion should be given more opportunities to defend themselves.
“Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, which advocates for more due process for those accused of campus sexual assault.
Anurima Bhargava, a former Obama Justice Department official who oversaw civil rights enforcement in educational settings, said the Obama administration discouraged the use of cross-examination because it could make sexual-assault victims reluctant to come forward.
“If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” she said.
The modification also reflects a belief espoused by President Trump and some other Republicans that young men—who make up the vast majority of accused students—are often presumed guilty and subjected to an unfair process to determine the truth.
Following Democrats’ demands that Justice Brett Kavanaugh step aside this fall, Mr. Trump suggested that the #MeToo movement is unfairly targeting men who aren’t guilty of any sexual impropriety. He said it is a “very scary time for young men in America” when “you can be guilty of something you may not be guilty of.”
An Education Department spokeswoman declined to comment on the contents of the rules until it is published.
The new rules will make at least one change from the earlier draft that was pushed by victims’ advocates. Rather than allowing only accused students to appeal rulings, the rules will maintain an Obama standard allowing both parties to appeal.
Critics have said that practice too often forced schools to retry accused students who had been already found innocent.
Some officials had advocated publishing the sexual-assault rules ahead of next week’s midterms, arguing that it would be viewed positively by the Republican base, particularly after Justice Kavanaugh’s nomination. Those officials were ultimately overruled, according to people familiar with the matter.
The Department of Health and Human Services is still looking at defining gender as an individual’s sex at birth, though if it isn’t defined that way in Title IX, it will be harder to apply such a definition across the federal government.
Trump administration officials are now looking at issuing a legal opinion through the Justice Department stating the administration’s belief that gender under Title IX is determined by a person’s genitals at birth, according to people familiar with their thinking.
But issuing such an opinion, without writing the definition into formal regulations, would put the government on weaker footing.
Once the rules are published, the public will be given a window to comment before they go into effect.
University administrators, in particular, said the old process put undue restraints on their ability to handle assault cases, and that the Obama administration’s stance led schools to fear that any misstep could prompt a costly federal investigation.
Mrs. DeVos revoked those guidelines in 2017, and said her agency would issue formal regulations in their place. The rules she intends to publish will carry the force of law without action by Congress.
The rules are being prepared as sexual assault—and colleges’ responses to it—remains a flashpoint on campuses. Both the accused and alleged victims have faulted institutions for shoddy investigations or biased tribunals.
In a speech last year, Mrs. DeVos likened the campus processes used to adjudicate sexual assault to “kangaroo courts” that followed arbitrary rules and offered inadequate protections to those involved.
“Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved,” she said.
COLLEGE ATHLETES IN recent years were about three times more likely than other students to be accused of sexual misconduct or domestic violence in complaints made at Power 5 conference schools, according to an analysis by Outside the Lines.
That finding is based upon data from Title IX complaints covering allegations of sexual assault, domestic violence, sexual exploitation, sexual coercion, stalking or retaliation collected from 32 Power 5 schools that provided records in response to requests for complaints against athletes over the past six years. Outside the Lines sought the data from all 65 Power 5 schools, but some officials did not provide information, and some that did provide information did not do so for all years.
The data provided show that, on average, about 6.3 percent of Title IX complaints against students — whether the complaint resulted in a formal investigation or not — included an athlete as the person accused of wrongdoing, officially called a “respondent” in the reports. Though that percentage equates to a minority of the overall number of complaints at Power 5 campuses made during the time period, athletes were named in such reports more often than might be expected considering they represent, on average, just 1.7 percent of total student enrollment at the universities.
Using the data to make school-to-school comparisons about which have the highest percentage of complaints or the highest number of complaints involving accused athletes should be done with caution because school officials did not always provide the exact data Outside the Lines requested. For example, one school might have insisted upon providing every complaint that had been filed with a Title IX office while another school might have insisted upon providing data only about cases that ended up in formal investigations.
It is, however, possible to determine an overall student-athlete-to-other-student comparison, because within each school, the data for athletes and students were subject to the same parameters. Outside the Lines consulted with two statisticians about its study methods.
W. Scott Lewis, co-founder of the Association of Title IX Administrators and partner with The NCHERM Group consultants, said it can be helpful to know whether a student involved in a Title IX complaint is an athlete, a member of the Greek system, ROTC or any other affiliation so school officials can detect patterns and take next steps.
“You’re supposed to — when you’re dealing with a student — understand the context of that student’s experience,” Lewis said, “regardless of the action they’ve been accused of.”
Kansas State University did not have an existing report about complaints against athletes but compiled the data for Outside the Lines anyway.
“If we don’t know this, we should know this,” said Jeff Morris, vice president of communications and marketing at Kansas State. Given the high-profile, national stories about campus sexual assault issues tied to athletes, he said, “We should all be paying attention.”
STARTING IN MARCH, Outside the Lines filed public records requests with all 53 public Power 5 schools and followed up with informal inquiries. Outside the Lines also requested data from the 12 private Power 5 schools that are not subject to open records laws; Baylor was the only private school that provided information.
A few schools declined Outside the Lines’ requests, stating that releasing records would violate student privacy, although each Outside the Lines request explicitly stated that names and identifying information could be excluded.
Some of the schools that didn’t provide numbers of complaints against athletes did at least provide the number of complaints against all students. Outside the Lines included those in its database because the information would be of public interest, even though those schools were not factored into the overall data analysis. However, some schools didn’t even have that level of detail on complaints.
The University of Virginia sought to charge Outside the Lines $33,902 to pull complaints in order to calculate just those that had named students; that estimate did not include records involving athletes, which the university refused to provide, citing privacy concerns. Outside the Lines declined to pay for the records but did pay clerical expenses for data from some schools.
An official at Virginia consulted with archrival Virginia Tech University prior to sending Outside the Lines its estimate, according to emails obtained by Outside the Lines. Virginia Tech officials confirmed to Virginia officials that they had received the same request but were planning to deny the request for athlete data. “I honestly do not feel it’s the best use of our extremely limited resources to try to pull this data for a story,” one Virginia Tech Title IX official wrote.
Understaffed Title IX offices is a common concern among Title IX officials: Outsides the Lines surveyed Title IX administrators at schools of all sizes and divisions, and of the 99 respondents, 75 percent said they did not have enough staff.
“I want the information as much as anybody else. I think we could learn from it. I think we could prevent things with it,” said Brett Sokolow, president of the Association of Title IX Administrators. “It would be amazing if Title IX offices had the capacity to get out there and say, ‘We’re having a problem with the tennis team, and we can see that in our data. Let’s make sure we direct more of our education policy training efforts to them to see if we can shore that up.’ That’s very rare.”
Dan Schorr, a Title IX consultant who aided Michigan State with Title IX investigations, said schools should, at the very least, know how many athletes are in complaints overall.
“If everyone in the community knows a certain sports team is involved in a certain number of complaints, there might be an outcry and a demand for reform,” said Schorr, who is now managing director with the consulting firm Ankura. “If people aren’t aware of that, that’s not going to happen.”
The U.S. Department of Education did not respond to requests for an interview with its assistant secretary for civil rights, Kenneth Marcus, or to questions from Outside the Lines for this story. The office is planning to release new rules for how schools should handle allegations of sexual assault, with an emphasis on giving accused students more due process in investigations.
Several rules in draft form were leaked to media this year and relate to which sexual assault and violence incidents should be counted and who should be required to report them. The changes could have significant impact on the Title IX caseload totals. In 2011, the U.S. Department of Education Office for Civil Rights re-emphasized sexual violence as a matter of equity and access under Title IX. Schools have been required to have a Title IX coordinator on campus and set up a procedure to address filed complaints.
Another key finding from the data obtained by Outside the Lines: Awareness and use of Title IX offices has increased dramatically in the past six years, with many coordinators and industry experts citing high-profile athlete cases as a driving force. Reports of sexual misconduct against students overall are up — about four times as many in 2017 as in 2012 among the schools that provided data for those years. The OCR, which investigates complaints about how all types of schools respond to Title IX sexual violence reports, had 130 complaints in 2014. As of this fall, it had about 400 open cases, according to the department’s website.
Without those athlete cases making headlines, the campus sexual assault awareness campaign “would be largely nonexistent,” said Catherine Lhamon, the assistant secretary for civil rights at the U.S. Department of Education from 2013 to 2017, and current chairwoman of the United States Commission on Civil Rights.
“The capturing of the hearts and minds of the American public is what has moved this issue,” she said. “The response of student communities to sexual violence among athletes has been really important.”
While there were some variations in the Outside the Lines data about how schools categorized violations and complaints, and which university office handled those complaints, the numbers generally included accusations of sexual assault and abuse, domestic or dating violence, sexual exploitation, sexual coercion, stalking and — where available — retaliation for reporting such incidents.
A spokesman for Ohio State, which had 37 complaints from 2012 to 2017 involving athletes, noted that the university has the most athletes of any Power 5 athletic department and that members of the dance and cheer teams are designated as athletes within the athletic department. A campaign launched in 2015 to raise awareness of sexual assault has “resulted in more survivors coming forward in subsequent years,” he said.
Michigan State, which remains under federal investigation for its handling of Title IX complaints, provided data on athletes for 2016-17 and 2017-18 only. It had 26 complaints made against athletes. A Michigan State spokeswoman told Outside the Lines that officials did not know how many total complaints against Spartan athletes there were prior to 2016; the officials declined to review existing Title IX complaints to find the answer.
At West Virginia, athletes made up about 1.8 percent of the student body but represented about 13 percent of Title IX complaints filed there over six years. WVU’s executive director for student conduct, Carrie Showalter, said the school’s system allows officials to track and detect patterns in certain groups, but she wasn’t aware of that discrepancy involving athletes until contacted by Outside the Lines.
“I do think it’s something that would cause us to look into things a little bit further to see if there’s anything else as a university we need to be doing,” she said.
The idea that athletes are overrepresented in college sexual assault cases is not new. A 1995 study in the Journal of Sport & Social Issues found that male athletes made up 3.8 percent of the male student body but were responsible for 5.5 percent of reported sexual assaults. That report also included data from judicial affairs departments at 10 schools, which showed athletes represented 19 percent of the perpetrators reported for sexual assault but made up only 3.3 percent of the male population.
KNOWING THAT THE data show athletes are over-represented in Title IX complaints at these schools is one thing; the reason why that might be occurring is unknown and debated among Title IX experts.
Lhamon said too many colleges and universities “turn away” from information that might show cultural problems within athletics, yet “the unfortunate reality today, still, is that we have a hypersexualized culture associated with elite athletes.”
Sokolow, the Title IX administrators association leader, said of the roughly 400 external investigations his group completes each year, at least half involve allegations against athletes.
“A lot of it may have to do with the aggressive kind of training and inclination that programs place on athletes to exert aggressive behavior. If that flows over into their sexual lives, you’re going to see more complaints coming out of that,” Sokolow said. “When students of any kind, athletes or not, tend to have a lot of consensual sexual opportunities, it becomes more difficult for them to separate out what non-consent looks like, because everything for them tends to seem consensual. And I think if you did studies, you’d see that student-athletes probably have more sex than students who are not athletes, in many cases.”
Schools and coaches can make the problem worse when they promote sex and sexual behavior among athletes, said Justin Lawrence, a Title IX administrator who conducts sexual assault awareness training at various colleges, including Texas Tech University, which had the lowest percentage of complaints against athletes in the Outside the Lines analysis.
Lawrence cited as examples the recent University of Louisville scandal in which basketball staffers provided access to strippers for recruits and the use of attractive female students as hosts to accompany recruits on official visits — a practice that made headlines at Tennessee and Baylor.
But it starts with coaches tolerating something far subtler, Lawrence said.
“People in the locker room talking about what they did with who or how this person looks. You know the locker room talk, ‘Boys will be boys,’” Lawrence said. “That’s where the rape culture starts. The very foundation of it. So we have to stop that.”
John Clune, a Colorado attorney who has represented women in several high-profile Title IX lawsuits, including some involving athletes, said he sees a higher rate of gang rape and videotape of sex abuse allegations against athletes than nonathletes. He cited a lawsuit he filed against Baylor that alleged a gang rape was part of a bonding activity for recruits.
“There’s something different about the group mentality within these athletic teams that we don’t really see in nonathlete cases, or at least not anywhere near the same frequency,” Clune said.
A September article in the Journal of Clinical Sport Psychology, “Sexual Assault on College Campuses: What Sport Psychology Practitioners Need to Know,” combined years of past research on sexual assault and college athletes and details higher alcohol use among athletes and that “male student-athletes are historically overrepresented as offenders.” The article states that some studies of violent behavior and athletes supported a link between sports and sexual aggression, but there were others that did not.
The article also cited a 2017 study — published in a journal called Violence Against Women — that covered sexual coercion practices among undergraduate athletes showing that they were “77 percent more likely to engage in sexual coercion than non-athletes,” and that athletes reported less positive attitudes toward women and greater acceptance of rape myths, with one example being that “women make false allegations of sexual assault to target innocent men.”
But Paul V. Cannarella, an attorney in South Carolina, said that is exactly what happened this year with his client, a soccer player at Coker College, a private school in Hartsville. The athlete was arrested and charged with rape and kidnapping, but the charges were dropped when the woman who had accused him admitted to making it up, according to a May 6, 2018, story in The State newspaper. The woman was arrested and charged with filing a false police report. A Title IX investigation also found no merit to her claims, Cannarella said.
“Nice-looking athletes tend to attract more women. … They’re just attracted to the big man on campus,” he said. “They consensually involve themselves with that athlete. And then if they feel rejected after anything that goes on between the two of them, and they get angry about it, they have a tendency to misrepresent what happened between the two of them.”
Since 2011, of 256 lawsuits brought by accused students against their universities alleging unfair treatment, about 20 percent of the claims have been made by athletes, said Samantha Harris, a vice president with the Foundation for Individual Rights in Education (FIRE), an advocacy group promoting greater due process in Title IX investigations.
“There may be a perception out there that this might be a problem of student-athletes because these cases have been in the news,” she said. “But I don’t think that is generally reflected in the greater prevalence of sexual assault.”
Schorr, who said he has consulted with dozens of universities, said that although students overall are becoming more comfortable coming forward, he said the process is still daunting for those “who dare accuse the star athlete of impropriety.”
He said women can face hostility from the school and community, and that “there is definitely preferential treatment institutionally.” Schorr said that the investigative process actually tends to favor athletes who are “not always being held as accountable as a nonstudent-athlete would be.”
Even though the Outside the Lines data show complaints against athletes are rising, information from police reports and interviews with alleged victims who have spoken to Outside the Lines indicate that there are still women who decline to report athletes for fear of retaliation and publicity.
FIRE’s Harris said “very few” students accused in Title IX complaints are getting due process — student-athletes or other students — but she did not know why athletes would be more likely to be accused in a complaint.
Of the 45 Division I and Division II Title IX administrators who responded to the Outside the Lines survey, about 69 percent said they felt that athletes were neither more nor less likely to be accused in a complaint, 18 percent said they were less likely, and 13 percent said they thought they were more likely.
Professor Vicki Michaelis and journalism students Wilson Alexander, Brittney Butler, John Durham, Jed May, Connor Richter, Kelsey Russo, Mason Wittner at the University of Georgia assisted Outside the Lines in requesting records for this story. ESPN consulted with Analysis & Inference Inc.’s senior statistician and president William Fairley and senior statistician William Huber on the methodology used in the analysis of the Outside the Lines data.
