Category: Uncategorized

145 Universities Under Federal Investigation for Sex Discrimination Against Male Students

Post author By saveadmin
Post date May 27, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

145 Universities Under Federal Investigation for Sex Discrimination Against Male Students

WASHINGTON / May 27, 2020 – A total of 145 colleges and universities around the country are currently under investigation by the federal Office for Civil Rights (OCR) for allegations of sex discrimination against male students. The investigations are targeting some of the most prestigious and largest institutions of higher education around the country.

On January 7, 2020, OCR opened an investigation against Harvard University for its support of seven sex-discriminatory programs. These programs include the Harvard College Women’s Leadership Awards, Graduate Women in Science and Engineering, and the Women in Global Health LEAD Fellowship. The LEAD Fellowship advertises its program with this uncommon description, “Learn, Engage, Advance, Disrupt.” (1) (OCR Complaint No. 01-19-2203)

Ohio State University boasts a total enrollment of 68,262 students, with female students outnumbering males. Despite this fact, OSU offers zero male-specific scholarships and 10 scholarships for female students (2). OCR initiated this case on May 18, 2020. (OCR Complaint No. 15-20-2074)

Community colleges are being investigated, as well. On April 22, the OCR launched a probe of Portland Community College. The Complaint by the SAVE Title IX Equity Project identified 11 scholarships designated for female students, and only one scholarship for male students. The College’s student demographics are 45.9% male and 54.1% female (3). (OCR Complaint No. 10-20-2081).

Disparities in the numbers of sex-specific scholarships can be surprisingly large (4). Auburn University, for example, offers 67 female-only scholarships, and only one scholarship for male students. (OCR Complaint No. 04-20-2092).

Title IX is the federal law that prohibits sex discrimination in schools. The Title IX implementing regulation states, “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance….” (5)

The listing of all 145 institutions is available online (6). The number of universities under investigation is expected to climb as OCR considers dozens of other Title IX complaints that have been filed in recent weeks.

Allegations of sex discrimination have garnered widespread media attention (7). SAVE urges college legal counsel to provide stronger oversight to Title IX Coordinators, who are responsible for assuring compliance with Title IX requirements and minimizing the institutional burdens of responding to a federal Title IX investigation.

Links:

Stop Abusive and Violent Environments is leading the national policy movement for fairness and due process on campus: www.saveservices.org

Sexual Assault Sexual Harassment Title IX Uncategorized

The Tale of ATIXA

Post author By saveadmin
Post date May 22, 2020

SAVE

May 22, 2020

A dramatic tale includes the elements of conflict, controversy, unexpected character behavior, and resolution. Here’s how the Tale of ATIXA recently unfolded….

On Monday, May 11, the Association of Title IX Administrators (ATIXA) sponsored a webinar titled, Ten Things to Know About the New Title IX Regulations. Brett Sokolow, President of ATIXA, instructed over 4,200 webinar attendees that they were not to follow the Department of Education regulation to post all training materials on university websites.

Instead, they were to follow ATIXA’s guidance to post only the training material titles. Inquirers could request to look at the training material in person, but could not photocopy or make a copy.

An audio recording of the webinar was then posted on the ATIXA website [1].

SAVE then wrote a commentary regarding Sokolow’s instruction to the ATIXA membership. The article, ATIXA Puts Members into Legal Jeopardy Regarding Requirement to Publicly Post Training Materials, posed this question: “So what part of ‘A recipient must make these training materials publicly available on its website’ does the Association for Title IX Administrators (ATIXA) not understand?” [2]

SAVE’s commentary was posted on May 13 at 12:19pm. That’s when the elements of conflict, controversy, and unexpected character behavior came into play.

Within hours, Sokolow posted a series of critical remarks directed at SAVE. Sokolow deleted the posts several days later, but not before they were captured by screenshot: [3]

5/13/20 @BrettSokolow

3:54pm

“I suppose I should respond with a tweet “SAVE Advocates Colleges and Schools Engage in Violation of Federal Copyright Laws.” Somehow you seem to think OCR has the authority to abrogate other federal laws. Interesting.”

“How embarrassed are you that you worked this hard, transcribed our content (sharing of which likely violates fair use), and never even bothered to read the regs, which explicitly protect our copyright. Egg on your face much? Going off half-cocked much? You’re a hack.”

“Ed. Take this crap down. Immediately.”

Sokolow then quoted a passage from the new Title IX regulation [4]:

1/2 “Read ‘em and weep. To the extent that commenters’ concerns that a recipient may be unable to publicize its training materials because some recipients hire outside consultants to provide training, the materials for which may be owned by the outside consultant and not by the….

2/2…recipient itself, the Department acknowledges that a recipient in that situation would need to secure permission from the consultant to publish the training materials…Rescind your garbage communication, now, Ed. It violates our copyright, too.”

SAVE did not respond to these inaccurate posts, because the truth is its own witness.

The plot thickens.

On Monday, May 18, just one week after the ATIXA webinar, the U.S. Department of Education Office for Civil Rights Blog cleared up any misunderstanding. The Department issued a clarification for posting (1) Contact information for the school’s Title IX Coordinators; (2) A school’s non-discrimination policy; and (3) Training Materials used to train the school’s Title IX personnel.

The blog post reads in part [5]:

Section 106.45(b)(10)(i)(D) does not permit a school to choose whether to post the training materials or offer a public inspection option.
If a school’s current training materials are copyrighted or otherwise protected as proprietary business information (for example, by an outside consultant), the school still must comply with the Title IX Rule.
- If a school is unable to secure permission from a third party to post copyrighted training materials, then the school must create or obtain training materials that can lawfully be posted on the school’s website.

This clarification soon led to the tale’s resolution…

5/19/20 @BrettSokolow to another Twitter user:

“We have withdrawn and are revising this guidance based on the most recent OCR clarification of its expectations.”

Conflict, controversy, unexpected character behavior, and resolution.

This cautionary Tale represents a victory for students and faculty members who are facing a Title IX investigation; and for universities who will not have to face legal battles for ignoring federal Title IX law.

Citations:

[1] https://atixa.org/r3/#Webinars

[2]http://www.saveservices.org/2020/05/atixa-puts-members-into-legal-jeopardy-regarding-requirement-to-publicly-post-training-materials/

[3] Available upon request at info@saveservices.org

[4] https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf

[5] https://www2.ed.gov/about/offices/list/ocr/blog/20200518.html

Uncategorized

It’s On Us and End Rape On Campus Virtual Town Hall on Title IX Rule Changes

Post author By saveadmin
Post date May 21, 2020

Title IX is a federal civil rights law that was enacted in 1972 and states that discrimination on the basis of sex is illegal in the United States of America. This law has since been amended and expanded to include crimes in the Clery Act and the Violence Against Women Act. Past administrations also released guidance to ensure schools are providing students and survivors of sexual violence with proper support and response options that ensure they continue to have access to educational programs. On December 21, 2018, Secretary of Education Betsy DeVos released new guidelines for Title IX. The proposed rules gutted previous guidance from the Obama administration and included new guidelines that could make it even harder for survivors to report or receive supportive services. Unfortunately, two weeks ago today, these damaging new rules were officially published on the federal register and schools have just a few months to change their policies to abide by these new rules.

On Friday May 8, 2020, It’s On Us and End Rape On Campus held a virtual town hall with over 1,200 students from around the country, national organizations, and direct service providers, and we have put the top 10 most frequently asked questions from that town hall here with our answers and any information we have. We will continue to provide information to you as we receive it and are working to announce a virtual action in response to these dangerous new rules.

Top 10 Questions and Answers

Q: Can we see the entire 2000 page document? How do we access it?

A: Yes, HERE is a link to the document itself. For any visual learners, THIS is also a helpful webinar on the new rules.

Q: Will the new rules apply retroactively to cases opened before August 14, 2020?

A: Legally, cases that have already begun should not be affected by these new rules; however, whether the Department of Education will hold schools accountable for these new rules before August 14, 2020 is still unclear. Our assumption, based only on our policy analysis of the newly published rules, is that cases that were open prior to the August 14 deadline may essentially be affected by the new rules, but for cases that have been closed and with no pending appeals, the Title IX regs will not be retroactively applied to these cases. (Page 1869, Paragraph 2)

Q: Who would conduct cross examinations?

A: Cross examination is conducted by the opposing party’s advisor of choice. This means that a survivor cannot be questioned by the person who harmed them, but they can be questioned by that person’s best friend, coach, or parent. (Page 996, Paragraph 1)

Q: How does this affect students studying abroad? Are schools considered responsible for addressing these cases? If not responsible, are schools allowed to choose to address reports from study abroad?

A: The new rules specify that Title IX ONLY requires a school to respond to an assault that happens “in the United States”. This does not include study abroad programs, even if it is through an official school program, such as an international campus of a U.S. based school.

According to the Department of Education, sexual assault that occurs during a study abroad program doesn’t apply to Title IX specifically because it happened outside of the United States and they do not want to create a conflict with another country’s laws. However, according to the Department, “there is no prohibition of a school deciding to include more robust policies against sexual harassment for study abroad programs.” If schools decide to do this, it will be legally outside the realm of Title IX, and have no oversight by the Department of Education. (Page 1575, Paragraph 2)

Q: With the narrowed definition of sexual harassment in the new rules, are schools obligated to investigate instances of sexual harassment that occur online?

A: The new rules do not specifically mention online harassment. The circumstances of online harassment must be analyzed to determine if the event where the respondent exercised “substantial control” over the victim/survivor occurred “in a school program or activity.” For example, online harassment would qualify if a student was harassing another student during a class, but not if they did it on their personal device in their off campus apartment. (Page 644, Paragraph 1)

Q: How will schools determine if harassment is “so severe, pervasive and objectively offensive”?

A: All crimes in the Violence Against Women Act (VAWA) are included in the Title IX rules as they are defined in the VAWA statute (sexual assault, dating violence, domestic violence, stalking). The new Title IX rules define “severe, pervasive, and objectively offensive” as any crimes on the basis of sex that a “reasonable person” would find to “effectively deny a person equal access to an educational program or activity.” The rules do not define who a “reasonable person” is. (Page 488, Paragraph 2)

Q: Lots of questions about reporting / mandating reporter/ing / top official / responsible employee / responsibility of title ix coordinator

A: All schools are responsible for hiring at least one Title IX coordinator. A Title IX Coordinator is defined as at least one employee that is designated to coordinate the efforts to comply with a school’s responsibilities under Title IX. All Title IX Coordinators have the authority to institute corrective measures on behalf of a school (Page 2009, Paragraph 7). All schools must display the Title IX coordinator’s information on their website and in employee/student handbooks. This must include an option for both verbal and written reports. The Title IX Coordinator is responsible for responding to a report once the school has “actual knowledge” of the assault. Actual knowledge is defined in the rule as any information given to or attained by a Title IX Coordinator. Once there is actual knowledge, the school is responsible for a “prompt” response. This includes reaching out to the person alleging sexual harassment and confidentially discussing available resources and options for support. Options include receiving supportive measures from school or choosing to file a formal complaint. (Page 1605, Paragraph 1)

Q: Does the new rule change how campus public safety responds to incidents?

A: Based on our review, there are no specific changes to how campus safety responds; however, the narrowed definition of sexual harassment and the increased responsibility of the Title IX coordinator, may affect the way campus safety handles reports.

Q: Do schools have the right to define consent?

A: Yes they do. According to the new rules, each school can define consent so that it is in line with their state laws; however, it must also follow definitions listed in the Jean Clery Act, which defines sexual assault as, “Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.” (Page 363, Paragraph 1)

Q: Do the new rules change prevention education requirements?

A: They do not provide any specifications on prevention requirements or instruction on sexual consent. They do however, require ALL persons who are involved in responding to these crimes to receive training. See Violence Against Women Act Amendments to Clery Act for more specific prevention language.

Q: What can states do and how can state policies mitigate loopholes to the new Title IX changes?

A: We can encourage our state legislators to write and sign into law, policies that provide robust and comprehensive definitions of consent and requirements for prevention education or response to these crimes. For example, on June 28, 2019, Governor Tom Wolf signed into law Act 16 of 2019 (Act 16) which added Article XX-J to the Pennsylvania Public School Code of 1949. Building on the It’s On Us PA initiative, this law includes statutory requirements for addressing sexual assault at postsecondary institutions in Pennsylvania that award an associate degree or higher. Learn more about the sexual violence policy, PDE’s model policy, and the anonymous online reporting system here.

Q: Can colleges and universities choose to take stricter action?

A: Yes, as long as their policies do not interfere with the language of the new Title IX rules, they can institute more detailed policies.

1 | United States, Department of Education, Office of Civil Rights. “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiveing Federal Financial Assistance,” 34 C.F.R. Part 106, 2020. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf

Source: https://medium.com/@ItsOnUs/its-on-us-and-end-rape-on-campus-virtual-town-hall-on-title-ix-rule-changes-questions-answers-dc66a1d6cecc

Uncategorized

Epidemics on Campus, Real and Imagined

Post author By saveadmin
Post date May 20, 2020

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.

Uncategorized

I’m a public defender in Manhattan. The Central Park video is all too familiar.

Post author By saveadmin
Post date May 15, 2020

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

I’m a public defender in Manhattan. The Central Park video is all too familiar.

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.

People socially distance while walking in Central Park on Memorial Day in New York City. (Dia Dipasupil/Getty Images)

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.

Sexual Assault Title IX Uncategorized

National Women’s Law Center’s Bag of Title IX Tricks

Post author By saveadmin
Post date April 8, 2020

On September 22, 2017, the Office for Civil Rights announced its withdrawal of the flawed 2011 Dear Colleague Letter. This unlawfully issued policy has been documented to have disastrous effects for students, faculty, and university administrators. [1] Fourteen months later, the Department of Education released its proposed Title IX regulations.

In a country grounded on democratic principles, all parties are certainly entitled to debate a proposed rule. Almost everyone seemed to be playing nice in the sandbox. But the National Women’s Law Center (NWLC) and their consortium of supporters devised and executed a plot to delay, delay, and delay.

First, in January 2018, NWLC filed suit against the Trump Administration to block the “new and extreme Title IX policy”, alleging it was unlawfully based on discriminatory stereotypes about women and girls as survivors of sexual violence. [2] The court eventually dismissed the lawsuit.[3]

Second, during the Notice and Comment period that began November 29, 2018, the NWLC requested Secretary DeVos to extend the “Notice and Comment” period for 60 more days because, in their words, “The proposed 60-day period comes in the midst of the holiday season. This is a particularly busy time for students, who are juggling final exams, preparations for winter break, and traveling home for the holidays. Teachers and school administrators are similarly overburdened.” [4]

That’s right, we don’t want to inconvenience students’ holiday shopping plans, do we?

The Department of Education prudently rejected the NWLC request.

By the end of January 2019, the Department received over 100,000 comments [5], and according to their website, plenty of those comments came from the NWLC who told Betsy DeVos to “keep her hands off Title IX”. [6] NPR radio revealed, “Survivors’ advocates especially have been running these big campaigns on social media and hosting comment-writing events, especially on college campuses.” [7]

Wondering who organized these “big campaigns”? Read on….

Next came the opportunity for final public commentary on the regulation to the Office of Management and Budget (OMB), in which persons can meet in person or on the phone with OMB officials to share any lingering concerns. The first meeting was held November 13, 2019. [8] Normally this step takes a couple days, certainly less than a week. But this time, the process stretched out over months, recently ending March 27.

In an Instagram video posted on April 3, Tulane University Title IX coordinator, Meredith Smith, spilled the beans. She revealed that the National Women’s Law Center orchestrated a strategy with various victim rights groups to request a seemingly endless string of meetings with the OMB, with the objective of delaying the release of the regulations. [9]

Smith explained: “So there was this delay strategy happening. We would hear that the Department of Education was about to release the regulations and then the National Women’s Law Center and all these other groups would parachute in and get more and more meetings on the calendar which push [the release date] back.”

The goal was to push the release date of the regulations to after the November 3 presidential election. Front-runner Democratic presidential candidate, Joe Biden, has vowed to restore the Obama era 2011 Dear Colleague letter guidance [10].

Even more recently the NWLC used the corona virus pandemic as an excuse, claiming “Now is hardly the right time to push forward with this fundamentally flawed rule.” [11]

The NWLC has utilized multiple tactics from their bag of tricks to strategically attempt to delay the release of the new regulations grounded in fairness and due process for now. And now, the cat is out of the bag!

Citations:

[1] https://www.thefire.org/dear-colleague-its-over-education-department-rescinds-controversial-2011-letter/

[2] https://nwlc.org/resources/nwlc-sues-betsy-devos-and-trump-administration-for-discriminating-against-student-survivors-of-sexual-violence/

[3] https://www.courthousenews.com/wp-content/uploads/2019/11/DOESexAssaultGuidance-JUDGMENT.pdf

[4] https://nwlc.org/resources/nwlc-requests-dept-of-education-to-extend-title-ix-nprm-comment-period/

[5] https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal

[6]https://nwlc.org/blog/nwlc-submits-comment-telling-betsy-devos-to-keep-her-handsoffix/

[7] https://www.npr.org/2019/01/30/690102168/litigation-is-likely-for-new-title-ix-guidelines

[8]https://www.reginfo.gov/public/do/eom12866SearchResults?view=yes&pagenum=34

[9] https://www.instagram.com/tv/B-hgmk0nRUz/?igshid=9tsk5uaj0e9m

[10] https://thefederalist.com/2019/12/12/joe-biden-promises-to-restore-obamas-disastrous-campus-kangaroo-courts/

[11] https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2020/03/NWLC-Letter-to-ED-and-OMB-re-COVID-19-and-Title-IX-3.25.20.pdf

Uncategorized

OCR Is About to Rock Our Worlds

Post author By saveadmin
Post date February 26, 2020

ATIXA, the association of Title IX administrators I serve as president, anticipates publication of the final Title IX regulations in the Federal Register within the coming weeks. The federal government last issued Title IX regulations in 1975, so this is somewhat unprecedented. The proposed changes are far more sweeping than the 2011 Dear Colleague letter promulgated by the Office for Civil Rights (OCR). The changes coincide with a due process revolution occurring in some federal courts, as well, with respect to college and university disciplinary processes.

What Will These Changes Mean for Higher Education?

Perhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications. Many of the more controversial changes will probably be addressed by a future Congress or through litigation. Some of the proposed changes included in the draft that OCR shared publicly last November may not make it into the final rule.

Most of the changes revolve around due process, which protects all of us, regardless of our campus role or status. They include provisions requiring more substantive written notice to the respondent of the nature of sexual misconduct allegations, the right of the parties to review investigation materials prior to a final determination and the right to a written rationale for the outcome and any sanctions assigned. For the most part, these are rights you would want to protect you if you were accused — rightfully or wrongfully — of sexual misconduct.

What Do We Do Now?

We at ATIXA suggest that colleges and universities continue to honor “best practices” commonly adopted by the higher education field, while moving gradually toward implementing the changes that the regulations will require. Some changes, like equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for institutions to provide broad-based supports and resources to victims of sex discrimination, such as counseling services, academic accommodation and housing changes. Now, OCR is making clear its expectation that those supports and resources also be offered to respondents. Many colleges already do so, but OCR wants to ensure uniform provision of services by all funding recipients.

Similarly, colleges can act now to extend all VAWA Section 304 rights to parties in sexual harassment cases. In 2014, Congress enacted amendments to the Violence Against Women Act (VAWA), which now are incorporated into the federal Clery Act. These changes codified as law some provisions of Title IX that were previously only proffered as regulatory agency guidance and added many provisions requiring training and prevention by colleges. Oddly, the protections of VAWA Section 304 only extended to what have become known as the “big four” offenses of sexual violence, dating violence, domestic violence and stalking. That created an asymmetry because Title IX protections include not only these four offenses but also conduct like sexual harassment and disparate-treatment sex discrimination that VAWA does not. Institutions were left with two competing laws that did not fully parallel each other. OCR’s proposed regulation logically aligns VAWA and Title IX so that rights do not vary by the type of sex offense alleged.

Thus, institutions can take steps such as providing written notice of the outcome of an allegation to all parties, not just in the big four offenses, but for sexual harassment, too. Additionally, institutions can ensure equitable provision of advisers across all cases impacted by Title IX, not just for those involving the big four.

These kinds of changes will give administrators a head start on compliance before the regulations are even released. Once released, there will be an implementation grace period of perhaps 90 days to as much as 12 months from publication of the final rule to allow colleges and universities time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.

What Do We Do When the Regulations Are Published?

Higher education needs to move toward compliance or to decide to litigate the validity of the regulations against the U.S. Department of Education — or both. OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice-and-comment period. The pressure is on for OCR to make it clear in its responses that its rules are rationally related to the statute, especially with a U.S. Supreme Court that appears increasingly hostile philosophically to agency rules.

Once OCR publishes the final rule, it will expect good-faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, colleges and universities will need to become compliant.

It took the higher education field three to four years to fully implement the 2011 guidance, but that kind of lethargy won’t be an option with these new regulations. They will have the force of law behind them rather than simply serving as guidance. Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.

The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision. This rule will create a chilling effect on reporting parties and, it will be argued, is beyond the scope of OCR’s authority to enact under the statute. Similar arguments could be made to collaterally attack OCR’s proposed requirements for live hearings and cross-examination facilitated by the parties’ advisers. In fact, activists aren’t the only cohort likely to attack such provisions, as some private colleges are also planning to litigate any attempt to impose a live hearing requirement on them, and have already funded a significant war chest to do so.

Within this highly politicized crucible where any action or inaction will catalyze litigation, institutions need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed. Faculty grievance processes will be an issue that administrators will have to face and resolve now, if they didn’t back in 2011. OCR is forcing the issue, and Title IX offices are probably going to be between a rock and a hard place — with faculty members who advocate for additional protections, such as clear and convincing evidence as a standard of proof for those accused of sexual assault, while others strongly advocate for preponderance of the evidence.

What Do We Do If We Don’t Agree With Some Provisions Within the Regulations?

About 20 to 25 percent of the regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need as a field to find ways to work within those requirements, challenge them in court or find clever work-arounds. Proposed provisions on notice, mediation, mandated reporting, live hearings and cross-examination could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways.

Let’s drill down on each of these proposed provisions a bit. OCR seeks to limit the ways in which recipients are legally put on notice of sex discrimination. Institutions might see this as a welcome safe harbor, but why would colleges and universities want to make it harder to report and respond to incidents? The opening of access and “no wrong doors” approach to intake has been one of the most valuable and enduring legacies of the 2011 guidance, and it has resulted in substantial increases in reporting of incidents for most colleges.

OCR also now plans to remove the “soft ban” on mediation of sexual violence it implemented in 2011. The vast majority of sexual harassment claims can and should be resolved informally, but we need to be sure that the parties are participating voluntarily and not being pressured to minimize the severity of what has happened to them. And many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence. Lower-level sexual harassment is very amenable to resolution via mediation, but the data on whether the same is true for violent incidents is much less conclusive.

Live hearings and cross-examination are the most controversial provisions of the proposed regulations. Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges. It will take a strong person to be willing to go through a process where they will be subject to cross-examination by the other party’s lawyer. And, importantly, no research indicates that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct allegation a full and fair opportunity to review and contest all evidence prior to a final determination.

In light of all of this tumult, perhaps the healthiest mind-set is to view the regulations mostly as setting a floor for compliance and to institutionally commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside it, where we can.

What is clear is that the pendulum is about to swing too far, again. The regulations have the potential to create significant public backlash, especially if colleges are seen as institutionally deprioritizing Title IX compliance in the coming months and years. Potential victims need to see you strengthening your program, not backing down. They are likely to perceive barriers to coming forward in the new rules, and administrators need to do everything possible to reassure potential victims that the Title IX office is still here for them, and that you’ll do everything not prohibited by the regulations to make reporting easier, offer services and resources, establish a process that is transparent and user-friendly, and avoid revictimization.

Regardless, some activists may turn some of their frustration with OCR on you, and we encourage you to be sympathetic, to encourage their voices and to be thoughtful about the ways that remedies-only and informal resolutions may be used to ameliorate or exacerbate the effects of the changes that OCR is catalyzing.

One thing is for sure — defining and maintaining sex and gender equity programmatic excellence in an environment of regulatory change, politicization of Title IX and fervent litigation will be among the most pressing challenges facing colleges and universities in 2020 and for some time to come.

Bio

Brett A. Sokolow is the president of ATIXA, the 3,500-member Association of Title IX Administrators.

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PR: Super Bowl Advisory: SAVE Urges Media to Assure Accurate Reporting on Sex-Trafficking Issue

Post author By saveadmin
Post date January 24, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

SUPER BOWL ADVISORY: SAVE URGES MEDIA TO ASSURE ACCURATE REPORTING ON SEX-TRAFFICKING ISSUE

WASHINGTON / January 24, 2020 – The Super Bowl, the nation’s premiere sports event, will be held on February 2. In previous years, media outlets have used the event to highlight the problem of sex trafficking, often providing misleading and inaccurate information. SAVE – Stop Abusive and Violent Environments – is calling on media outlets to assure stories about the connections between the Super Bowl and human trafficking are accurate and properly-sourced.

Media accounts of human trafficking often rely on portrayals of men who abduct vulnerable Latin American girls and force them into sexual servitude. Such portrayals are inaccurate because the most common form of human trafficking is forced labor (80% of human trafficking victims), not sex trafficking (20% of victims) (1). Additionally, in Central America and elsewhere, females are the most common perpetrators of human trafficking (2).

Sensationalist media accounts are also harmful because they ignore the vast majority of trafficking victims, they encourage the conduct of inefficient law enforcement “sting” operations, and they weaken the credibility of legitimate anti-trafficking efforts.

The Global Alliance Against Traffic in Women notes, “Around this time every year we notice a spike in press coverage, especially in U.S. media, about a projected rise in trafficking for sex in whichever U.S. state is hosting the Super Bowl….there is no evidence to support the claim.” (4) A University of Minnesota report concludes, “available empirical evidence did not support a causal or correlative link between Super Bowls and sex trafficking.” (5) And University of Miami professor Kelli Lyon Johnson charges, “anti-trafficking awareness campaigns share many features with fake news and alternative facts.” (6)

SAVE urges media outlets to recognize that sex-trafficking is not the same as prostitution; to not promote false stereotypes about sex traffickers; and to assure that statements by law enforcement officials and advocacy groups are appropriately sourced. A Fact Sheet, “10 Facts About Human Trafficking,” is available on the SAVE website: http://www.saveservices.org/2020/01/fact-sheet-10-facts-about-human-trafficking/

Citations:

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2019: A Banner Year for SAVE

Post author By saveadmin
Post date December 31, 2019

In 2019 SAVE — a leader in the national policy movement to restore due process, stop false allegations, and protect all victims — had a banner year. As we close out this year, SAVE is putting a bow on 2019 and gearing up for the challenges and opportunities the New Year is sure to bring.

We take this opportunity to thank you for joining in our fight and inspiring us to keep moving the needle towards fairness. As we reflect back on 2019, SAVE…

…diligently focused on restoring campus due process and Title IX requirements.

SAVE influenced the pending Title IX regulation by submitting 3 in-depth comments during the Notice & Comment period.
SAVE assisted prospective students and parents to avoid schools with biased and unfair practices by publishing a list of the 25 worst colleges for due process.
Attorneys benefited by the publishing of a new interactive spreadsheet listing over 100 lawsuits with favorable outcomes, and also by the publication of the Special Report: Appellate Court Decisions for Allegations of Campus Sexual Misconduct, 2013-2018.
SAVE visited 12 states (NM, TX, CA, OR, WA, MO, MN, NY, NY, CO, CT, MA) to shape their state’s campus sexual assault laws.
SAVE made our presence and position known on Capitol Hill with over 150 lobbying visits in the House and Senate designed to restore due process to campus Title IX proceedings.

…. educated stakeholders on unfair victim-centered and trauma informed investigative techniques.

Police departments and campus security offices across our nation received letters from SAVE to discontinue their use of biased trauma-informed investigative techniques.
SAVE assisted defense attorneys by developing legal strategies for their interest and use.
SAVE gained 3,350 signatures from concerned citizens on the Change.org Petition (“Stop Sham ‘Start by Believing’ Investigations”).
SAVE sent two letters to Attorney General Barr to stop DOJ funding of Start By Believing investigations
SAVE published a new report that debunks trauma-informed methods: “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims: Are We Trading One Prejudice for Another?”

…. saw encouraging results with campuses owning up to their Title IX obligations by ending disparities in sex-specific scholarships.

SAVE analyzed scholarship websites of 269 colleges in all 50 states and sent 228 Demand Letters to universities.
Ten colleges voluntarily ended their discriminatory, female-only scholarships due to SAVE sending a Demand Letter highlighting their obligations to Title IX.
The Office of Civil Rights received 18 complaints from SAVE to investigate universities for alleged Title IX non-compliance.

…worked to reform the Violence Against Women Act:

SAVE volunteer lobbyists held over 100 meetings in the House & Senate to educate staffers on the flawed version of VAWA.
SAVE sponsored a well-attended DC press conference to shed a bright light on the issue.
SAVE distributed flyers on a weekly basis to members of Congress.
SAVE promoted a “Fresh Start” to the VAWA law, which has begun a movement to a restored and fairer version of VAWA.

…shaped public opinion on due process, trauma-informed investigative techniques and VAWA by appearing on talk-radio in over 160 interviews. Media outlets, such as the LA Times, reported on the positive work SAVE is accomplishing with the Title IX Equity project.

We have a lot to be thankful for at SAVE and your continued support of our work is at the top of the list. We foresee challenges, opportunities and victories in 2020 and beyond. You have our commitment to continue to passionately lead the policy movement to restore due process, stop false allegations, and protect all victims.

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Joe Biden Promises To Restore Obama’s Disastrous Campus Kangaroo Courts

Post author By saveadmin
Post date December 16, 2019

By signaling his intention to restore unfair Title IX guidance, Biden is showing his willingness to eviscerate due process to please far-left activists.

By Inez Feltscher Stepman

DECEMBER 12, 2019

Joe Biden has learned nothing from the Title IX due process disaster plaguing America’s campuses. The former vice president has released a plan on his website to restore the Obama administration’s infamous 2011 Dear Colleague letter, which Biden’s plan describes as outlining how to “fairly conduct Title IX proceedings.” In reality, the Dear Colleague letter introduced a monstrously unfair process that has forced hundreds of young men to sue for their rights — and reputations — in federal courts.

An accused’s rights to confront his or her accuser through cross examination and to have a neutral adjudicator have long been considered the very basics of due process. In the name of protecting women, the 2011 guidance encouraged universities to abandon these well-tested pillars in favor of a single-investigator model, in which a Title IX administrator both elicits the stories from the involved parties and rules on the outcome. The Dear Colleague letter also pushed universities into lowering the standard of proof and discouraged any kind of cross examination that might probe discrepancies in an alleged victim’s story.

“It’s particularly concerning that a presidential candidate seems oblivious to the unintended repercussions of a policy he championed. Over 500 lawsuits have been filed by accused students since the 2011 Dear Colleague letter, resulting in at least 161 court decisions in these students’ favor and over 100 pre-decision settlements,” Garrett said.

She also added that to her knowledge, Biden did not even reach out to organizations concerned about due process or any of the families of those suing their universities before pronouncing the Obama administration action an unalloyed good that should be restored.

Under Secretary Betsy DeVos, President Trump’s Department of Education withdrew the Obama-era guidance and proposed a new, fairer rule, which among other changes ensures that those accused of Title IX misconduct on campus have access to a fair adjudicator, the advice of counsel, and the ability to question (through third parties) their accusers. Now, leading Democratic candidate Biden says he will restore the madhouse that federal judges have excoriated as “enough to shock the Court’s conscience.”

Is it any wonder that in the wake of watching the Kavanaugh hearings, in which a man with an impeccable record had his reputation nationally and permanently trashed by allegations countered by all the available evidence, more American men reported they’d rather be falsely accused of murder than sexual misconduct? In that same poll, almost 60 percent of both the men and women surveyed said society presumes a man accused of sexual assault to be guilty.

While we should of course have sympathy for victims of sexual assault, the unfair process Biden blithely promises to restore has victims as well. FACE collects some of their stories, mostly anonymized to protect the young men and their families still traumatized and ashamed by their experiences with unfair campus adjudication.

It’s doubtless true that many women have negative experiences in the alcohol-fueled hookup culture prevalent on most American universities, but attempting to cram the genie back in the bottle with over-broad definitions of consent and unfair processes just creates more victims. And the kangaroo processes necessary to punish men for failing to read women’s minds in ambiguous situations infantilize women, as well as cheapen the experiences of real rape victims.

Inez Feltscher Stepman is a senior contributor at The Federalist. She is also a senior policy analyst at Independent Women’s Forum and the Thursday editor of BRIGHT, a women’s newsletter. Find her on Twitter @inezfeltscher.