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The stark differences between universities’ reactions to COVID-19 and sexual misconduct.

Each academic year, activists and politicians sound the alarm that the nation’s college campuses are overrun by an epidemic of sexual violence. Presidential candidate and former Vice President Joe Biden, for example, has warned the nation that “one in five of every one of those young women who is dropped off for that first day of school, before they finish school, will be assaulted in her college years.” The numbers are swelling even larger in other surveys, to one in four or even one in three.

Interestingly, despite this so-called epidemic of sexual violence, colleges never made the decision to close. Instead they staffed up student conduct offices and dismantled due process protections for students accused of sexual misconduct in an effort to persuade alleged victims to come forward.

Now that COVID-19 has hit, we’ve seen how schools respond to a true epidemic. As more people got sick and even died from the coronavirus, colleges across the country closed, mostly voluntarily, in advance of state-ordered shutdowns—even though college-age adults are at much lower risk of death than older adults. Numerous colleges, including the entire California State University system, have already announced that they will not reopen for in-person instruction this fall.

This dramatic, rapid response suggests colleges would react very differently if they actually believed that 20 to 33 percent of their female students would fall victim to violent crime during their time in college.

Those one-in-five numbers come from surveys that define sexual assault differently from both the law and common understandings of what sexual assault entails. One survey asked participants if they’d ever had sex while drunk, or if someone had ever “pressured” them into sex by “threatening to end your relationship” or “showing they were unhappy.” In another survey, participants who answered yes to questions about unwanted conduct were recorded as victims, despite the fact that half of those alleged victims, when asked, did not consider the incidents “serious enough” to report.

Activists who are worried about the prevalence of assault have led opposition to the Department of Education’s new regulations governing the disciplinary process for students accused of sexual misconduct. These new regulations include such staples of Anglo-American justice as the presumption of innocence, the right to know the charges and see the evidence, and the right to cross-examine witnesses, including one’s accuser.

The statistical exaggeration of the activists is in full view in the first complaint filed by the ACLU to stop the new regulations. Either because the lawyers cannot do basic math or because they all truly believe their own numbers, they put the rate of sexual assault on campus at 240 percent, arguing both that 12 percent of college students report being sexually assaulted but that this represents only a mere 5 percent of the actual assaults, because 95 percent are never reported.

Epidemics obviously call for extreme measures, the logic goes, and canceling due process rights is a sacrosanct cure. If colleges allowed alleged perpetrators to confront their accuser, opponents warn, few victims would ever come forward because they might be retraumatized.

But the sexual assault epidemic shouldn’t really be called an epidemic. Rather, it’s the result of changing norms around sexual behavior—norms colleges push students to adopt by redefining a great deal of wholly lawful behavior as sexual violence. Within constitutional limits, colleges have the right to adopt new campus rules. For the sake of everyone involved, though, they must drop the pretense that the majority of the cases they deal with involve criminal sexual behavior.

This pretense they’ve adopted trivializes actual sexual violence. No one is naive enough to believe true sexual violence never takes place on campus. Those crimes must be dealt with. But if those crimes affected one in five women on campus, no doubt colleges would respond by taking aggressive, drastic measures to crack down on the scourge, in the same way they’ve responded to the threat posed by the coronavirus. The absence of such a response illustrates that, despite the terrifying numbers routinely thrown around by opponents of due process on campus, colleges do not actually believe—and have never actually believed—that one-quarter to one-third of their female student body will be the victim of a violent crime.

Meanwhile, punishing infractions against the changing norms permanently stigmatizes students who, while they may have transgressed campus codes, never committed anything close to crimes of sexual violence. Under many of the new college consent rules, even the whiny entreaties of a would-be lover are considered so coercive as to negate the other person’s ability to say no. Northwestern University, for example, expelled a student for “sexual assault” because he used “’emotional and verbal coercion,’ apparently because [he] requested sex more than once that evening.” On a similar note, a Title IX training slide at Boston University cites merely “poor communication” between college students as an example of something that can render sex nonconsensual.

College consent rules that operate like this do not jibe with what the average American understands when he or she hears that someone committed—or was victimized by—”sexual violence.” As a result, branding students as campus sex offenders, as if this were truly “sexual violence,” amounts to a death knell for future educational and career prospects, even when the underlying conduct is not remotely criminal.

Occidental College, for example, expelled a student for having sex with a woman who was supposedly too drunk to consent, despite the fact that she texted him before the encounter to ask, “do you have a condom,” and texted another friend, “I’m going to have sex now.”

Brandeis University threw a student off campus and permanently branded him as a sexual offender after his ex-boyfriend complained, among other things, that he occasionally woke him up “by kissing him” and “looked at his private areas when they were showering together.” Brandeis’ special examiner determined that the complaining student “was not strong-willed or forceful enough” to stand up to these supposed onslaughts and condemned the ex-boyfriend for “serious sexual transgressions.”

Meanwhile, the new campus sex rules give college students the message that they cannot be expected to rebuff cajoling or pressure, or to take proper responsibility for choices made under the influence of alcohol. The inflated statistics also make many of them fearful that sexual violence is much more common than it is.

Cui bono?

If colleges want to redefine consent and prohibit large swaths of lawful sexual interactions under their conduct codes, they largely have the right to do so. But now that colleges have responded to a real infectious disease epidemic by fully closing campuses for months on end—though it means losing out on money and instruction time—the scare tactics about the sexual violence epidemic have been exposed for the exaggerations they are. This presents an opportunity to reemphasize the case for due process protections for students who are accused of sexual assault, starting with the Department of Education’s helpful new rules.

It could also present an opportunity for colleges to start being honest about what they are really doing: attempting to redefine sexual norms, not combating an epidemic of violent crime.

https://www.washingtonpost.com/opinions/im-a-public-defender-in-manhattan-the-central-park-video-is-all-too-familiar/2020/05/26/73c3de60-9f99-11ea-81bb-c2f70f01034b_story.html?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most

Video shows white woman calling police on black man who asked her to leash her dog

Amy Cooper called the police on Christian Cooper on May 25 after he asked her to leash her dog in Manhattan’s Central Park. (Christian Cooper)

By Eliza Orlins 

May 26, 2020 at 6:48 p.m. EDT

Eliza Orlins is a public defender and Democratic candidate for Manhattan district attorney.

That viral video circulating of a white woman calling the police on a black man in New York’s Central Park on Monday was sadly all too familiar. The privilege that the woman in the video sought to weaponize with her 911 call is real — and the system that enables it is overdue for reform.

The incident began when Christian Cooper, in the park to birdwatch on Memorial Day, asked a woman to leash her dog in an area where that’s required, and things escalated from there. In the clip that Cooper recorded on his cellphone, the woman warns Cooper — threatens him, in fact — that she’s going to call the police to falsely report that “there’s an African American man threatening my life,” which she then does: “Please send the cops immediately,” she pleads into the phone.

 

As a public defender in Manhattan for more than a decade, I have represented many people in similar situations. Most of their stories have followed a similar pattern:

 

Opinion | Lessons from Ahmaud Arbery’s killing — that you already knew

This rendition of the poem ‘Black 101’ memorializes the innocent lives poet Frank X Walker says are terrorized by white rage, including jogger Ahmaud Arbery. (Frank X Walker, Joy Sharon Yi, Kate Woodsome/The Washington Post)

 

A white person calls the police on a black man. The police arrive and take the side of his white accuser, refusing to believe his version of events. He is arrested and arraigned. An outrageous bail amount is set. His family can’t afford to buy his freedom. He gets sent to Rikers Island, where he sits for days, months or sometimes years.

 

Eventually, his case is resolved in some way — either because the charges are dismissed or because he decides to plead guilty to a lesser charge. In the meantime, he may have lost his job, his home, his children or some combination of the three.

 

Nothing like that happened to Cooper, thankfully. But the elements of the problem are plain to see.

In cases I’ve taken to trial, the district attorney has offered recordings of “hysterical 911 calls” as evidence of my clients’ guilt, urging the jury to “just listen to the fear in her voice,” saying, “You can tell she can sense a threat,” and asking questions such as, “Why would she lie?” All too often, it works.

 

Usually, there’s no video. On Monday, there was. You can hear “the fear” in the voice of the woman who called the police on Cooper, too.

 

Under normal circumstances, these stories from our criminal punishment bureaucracy can be devastating. But consider how the added risk to anyone sent to jail right now — Rikers Island has had one of the highest covid-19 infection rates in the world — increases the potential damage. Worse, Gov. Andrew M. Cuomo (D) has suspended time limits for speedy trials during the pandemic, as well as a requirement that cases be presented to a grand jury within six days of an arrest. Hundreds of New Yorkers sit in jail without even having been charged by indictment. A spurious accusation in a park could mean a death sentence.

 

Of course, all of this assumes the police don’t show up and deliver the death sentence on the spot. By now anyone who chooses to needlessly report a person of color to police has heard the litany of names such as George Floyd, the African American man who died just Monday after a Minneapolis police officer was filmed pinning Floyd’s neck to the ground with his knee.

Some might say the Central Park video is evidence of a criminal legal system that’s “broken.” But after years spent representing thousands of New Yorkers in court, I can attest that the reality is worse: The system is working the way it was designed to work — protecting the wealthy, connected, powerful and white, while disenfranchising already-marginalized communities of color.

 

What can be done? Certainly, end cash bail. We cannot allow people to sit in jail for months on end on the basis of an accusation — not when we can see with our own eyes how easy it is for this to happen.

 

But that only deals with one consequence of privilege. The privilege itself will be far harder to address.

There are two different sets of rules in our criminal legal system. White Americans live every day with the privilege of knowing that they can call 911 and get help. For poor people and people of color, calling for help when in danger presents a new set of risks — including the risk that they won’t be believed by police or that they’ll be charged with falsely reporting a crime.

 

What if false-reporting charges were brought in cases like this one? That would send a very different message. To tip the scales, there needs to be accountability for playing the privilege card.

 

But we can’t stop there. Our real duty is to renew our commitment to creating a very different system of justice — where a black man, falsely accused, can feel safe even without a viral video.

Title IX coordinator spills the beans on ‘delay strategy’

Activist groups who opposed the Trump administration’s proposed Title IX regulations from the start are now citing the outbreak of COVID-19 as a reason for further delay.

In response, due process advocates are urging the Department of Education to keep its schedule for release of the rules, which would add several due process protections for accused students in campus sexual misconduct proceedings.

While it’s true that the novel coronavirus is exhausting colleges’ available resources, opponents of due process are using the public health crisis as an excuse to cover up their disapproval of the proposed regulations, according to a due process group.

“It’s not because of the coronavirus, it’s because they don’t like and don’t want the due process rule. Period,” Stop Abusive and Violent Environments wrote in a statement.

“At a time when the COVID-19 pandemic has created much uncertainty in the education community, the Department can provide clarity with respect to Title IX by issuing the regulations as soon as possible,” according to a letter to the Department of Education by Speech First and the Independent Women’s Law Center. They called on the feds to not buy into coronavirus as an excuse to delay the due process rights of students.

On-time release of the rules is important for accusers as well, according to Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education.

“The status quo with respect to campus Title IX proceedings is unacceptable,” he said in a FIRE statement. “Institutions too often harm complainants by sweeping allegations under the rug or by handling their complaints with insufficient care, while the railroading of accused students is also well documented. Neither of these injustices should be allowed to persist.”

As evidence that due process opponents are trying to delay the regulations as long as they can, SAVE shared a clip from an Instagram video posted April 3 by Tulane University’s Title IX office.

Coordinator Meredith Smith explains the “delay strategy” devised by the National Women’s Law Center and some other “legal and victims advocate groups.”

In order to push off the regulations from taking effect in 2019, they “parachut[ed] in to get more and more meetings” with the White House Office of Management and Budget, which must sign off on agencies’ proposed regulations, Smith says. Her office didn’t know about the strategy until “January or February.”

MORE: Colleges, Democrats use COVID to get out of treating students fairly

Colleges have known the specifics of the Department of Education’s proposed Title IX regulation for nearly a year and a half. The broad contours go back a year earlier than that.

It would ban “single investigator” proceedings where one official acts as judge, jury and executioner; require live hearings with some form of cross-examination by students’ advocates, including lawyers; and require colleges to use the same evidence standard in disciplinary proceedings for both students and faculty, who often have more protections.

The proposed procedures are in line with several court precedents, particularly those from the 6th U.S. Circuit Court of Appeals, which ordered colleges to allow cross-examination when “credibility is at issue.” They would also be legally binding, a reversal of the Obama administration’s “guidance” approach.

Three Democratic senators called it “reckless and inappropriate” for the Department of Education to require K-12 schools and higher education to “significantly alter how they handle allegations of sexual harassment and assault” during the pandemic.

MORE: Colleges use coronavirus to restrict how accused students defend themselves

They face “unprecedented uncertainty about the end of this school year and the start of the next school year,” wrote New York’s Kirsten Gillibrand, Washington’s Patty Murry and Elizabeth Warren of Massachusetts. “The federal government should be doing everything possible to help them navigate these uncertain times,” including by delaying the Title IX regulation.

The American Council on Education, which represents college presidents, as well as NWLC and 18 Democratic attorneys general have all written letters to the Department of Education asking to delay the rules, given the strain of COVID-19 on colleges.

“At a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis,” ACE wrote.

“Finalizing the proposed rule would also unnecessarily exacerbate confusion and uncertainty for students who are currently in pending Title IX investigations and hearings, which have already been delayed and disrupted by the pandemic,” NWLC wrote. The attorneys general echoed these arguments.

Stalling rationale ‘also true for a university absent of a coronavirus pandemic’

Due process advocates countered that now is the perfect time to implement new Title IX rules because colleges have had ample time to plan and Title IX officers will not have to worry about an abundance of new cases, given how few students remain on campus during the COVID-19 outbreak.

The rationales offered for delay by NWLC and ACE – that colleges are dealing with reduced resources, increased stress and difficult work arrangements – are “also true for a university absent of a coronavirus pandemic,” SAVE countered. It noted that NWLC’s letter tipped its hand by calling the Title IX proposal “fundamentally flawed,” not just ill-timed.

“Students are given ample notice to complete their assignment and turn it in for a grade,” the due process group continued. “Universities have had ample notice and time to prepare for the release of new rules enforcing Title IX on their campus.  No more excuses. Time’s up to restore due process on University campuses across the nation.”

Writing for SAVE, University of Utah Prof. Nicholas Wolfinger wrote Sunday: “With campuses shuttered and students sent home, opportunities for campus sexual misconduct have plummeted. In short, this is the ideal time for the new regulations to be implemented.”

Given the proposed rules were published in November 2018, “preparation for the implementation of these regulations should be well underway at this point,” said the Speech First and IWLC joint letter. “Students who are currently caught up in Title IX adjudications should not be forced to wait any longer for clarity on their cases.”

Speech First President Nicole Neily said in a separate statement that “all stakeholders in America’s institutions of higher education—from students and parents to faculty and administrators —deserve a just system, and they deserve it now.”

MORE: Accusers use ‘street justice’ to harass accused students

IWLC Director Jennifer Braceras added: “Universities must not be allowed to hide behind this pandemic as an excuse for violating the due process rights of the accused.”

FIRE’s Cohn emphasized that the Department of Education’s proposed rules are “not the only potential legal authority mandating changes,” pointing to the “growing list of schools … on the losing end of judicial opinions blasting the institutions’ procedures”:

Does anyone think the pandemic should result in stays in all of those cases? Should we presume that the current world situation should be grounds to stay all judicial orders — even those in other contexts — requiring the government to halt the revision of policies that violate constitutional rights? If not, then why only in this context must this type of institutional actor be allowed to continue unjust practices?

Secretary Betsy DeVos* has been coy on the timing of the rule, which faces no more regulatory hurdles after clearing OMB review.

In a news release by the Department of Education about the stimulus money going to higher education, she vaguely responded to questions regarding the Title IX regulation.

Without giving an exact date for the regulation’s rollout, DeVos said the department is taking into consideration both sides’ arguments on the matter. “We are sensitive to the situation [with coronavirus-related burdens]. But we also have to acknowledge that Title IX investigations continue to happen.”

A few months earlier, a Sixth Circuit Court of Appeals panel in an opinion by Judge Alice Batchelder held that a female accuser did not have a cause of action against the college for allowing the accused to remain on campus. Or to put it bluntly, not suspending or expelling the male student did not allow the female student to claim she was harassed by having to suffer his mere presence on campus.

In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries. A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation.

What this meant is that colleges didn’t subject themselves to liability to the accuser by imposing a lesser remedy than expulsion, and that the circuit was emphasizing a return to the criteria stated by the Supreme Court in Davis v. Monroe County Board of Ed., that the harassment must be “severe, pervasive and objectively offensive.”

A different panel of the Sixth Circuit just ruled to the contrary in Foster v. University of Michigan.

Foster was the victim of sexual harassment during a University of Michigan Ross School of Business executive MBA program located off-site in Los Angeles, California. After Foster reported that the respondent*, a fellow classmate in the program, had sexually harassed her, the University instituted a no-contact and no-retaliation order against him while it investigated her complaint. Foster argues that the University’s response to the respondent’s unwillingness to comply with these measures was clearly unreasonable and caused her to undergo further harassment.

Because we believe that Foster has established a genuine issue of material fact as to whether the University was deliberately indifferent to the sexual harassment she suffered at the hands of a fellow student, we REVERSE the grant of summary judgment and REMAND for further proceedings consistent with this opinion.

There is an obvious and salient factual distinction between the two decisions. In the earlier case, the male accused’s only “offense” was still existing on campus, and the accuser’s “complaint” was that she would see him, and that the mere sight of him was traumatic enough to constitute harassment.

In the second case, the accuser claimed that the male accused engaged in affirmative harassing conduct in violation of the “no contact” order imposed by the school.

The accused student later violated the order, blocking Foster from doorways, texting her, writing threats on Facebook and detailing Foster’s Title IX claim via email to other students in the E.M.B.A. program. The university followed up on Foster’s communication about the incidents and banned the accused student from a class and from attending commencement events in Ann Arbor, Mich., according to court documents. He was arrested after showing up to a commencement event and sent back to California, the opinion states.

While the details, and the significance of the conduct, are disputed, the court nonetheless held the remedy used by Michigan, the “no contact” order and various related directives, were not, as a matter of law, sufficient to show that even if they proved insufficient, the school was not “deliberately indifferent.” In other words, even though the school took deliberate action, it could still be liable for deliberate indifference if the court, in retrospect, deemed the action inadequate.

What’s a college to do? As much as Judge Batchelder’s opinion concluded that the mere sight of an accused male student didn’t constitute harassment, such that the university was under no duty to suspend or expel every male accused lest it be liable under Title IX if the female student complained, the liability is contingent not on the university’s deliberate response to the complaint, but hinges on the male student’s compliance, the female student’s subjective satisfaction with the remedy and, of course, the validity of the subsequent complaints that the male student continued to engage in conduct that the female student felt was harassment.

The only safe way for a college to avoid Title IX liability, then, is to suspend or expel the male student, since they can’t be positive that the male student left on campus won’t engage in conduct that either is, or could be deemed, harassment. Indeed, even if the male student tries his best to comply with the school’s directives, there is no assurance that the students won’t cross paths at times, particularly when they’re both in the same educational program. And there is never an assurance that the sensitivity of the accuser won’t give rise to exaggerated claims of trauma and suffering by otherwise benign and harmless action.

“It’s a dynamic process,” [Appellant’s attorney, Joshua] Engel said. “The school puts in place what seems reasonable, but when the accused student says, ‘I’m not going to follow these rules,’ the school can’t just say, ‘We did something, good luck.’”

In dissent, Judge Jeffrey Sutton points out the absurd conundrum.

It’s not a university’s job to do the impossible—to “purg[e] their schools of actionable peer harassment”; it’s a university’s job to respond in good faith to allegations of harassment to eliminate the problem.

That’s what Michigan tried to do and tried to do in good faith. From March 13, 2014, forward, Foster presented the University with five instances of misconduct by the harasser. Each time, the University adopted escalating measures proportionate to the misconduct. Not once did its action remotely count as “clearly unreasonable.”

Going forward, there appears to be only one rational option in the Sixth Circuit for schools confronted with an accusation of sexual harassment, not because far lesser options aren’t available and won’t work, but because the good faith efforts to address them using reasonable means won’t protect the school from subsequent Title IX liability: get rid of the male student.

*Inexplicably, but perhaps tellingly, the court refers to the accused male student as the “respondent” even though he was not a party to the action.

Source: https://blog.simplejustice.us/2020/03/13/6th-circuit-suspend-first-or-else/