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In an attempt to smear Attorney General William Barr, NBC News framed a story about Barr’s support for due process (which shouldn’t be controversial) as him supporting rapists.

It’s a typical tactic by the media these days. Ever since the Obama administration issued guidelines in 2011 warning schools that they needed to find more male students responsible for sexual assault, due process has gone out the window. In 2017, professor K.C. Johnson and scholar Stuart Taylor wrote a book about the issue. At the time, I wrote a review for RealClear Books — and my previous work on the subject was also referenced multiple times in the book.

The book details how colleges and universities ignore exculpatory evidence and hinder students’ due process rights in order to obtain findings of responsibility to avoid federal investigations that threaten the schools’ federal funding. Johnson and Taylor, using court documents, describe multiple instances where male students have been found responsible even though the evidence suggested they were innocent.

NBC reported that Barr “strongly endorsed a 2017 book accusing colleges and universities of unfairly punishing male students accused of rape.” That is not accurate, as the book accuses schools of unfairly punishing male students dubiously accused of rape. The book does not decry students who are likely guilty receiving too harsh a punishment, as NBC claimed.

“President Obama’s Education Department — promulgating regulations beyond its statutory authority, invoking erroneous data, and fanning the false narrative of a ‘rape culture’ on college campuses — has created a regime of kangaroo justice,” Barr wrote in the blurb.

This is an accurate statement. The Obama administration used false data purporting to show that 20% of women are sexually assaulted in college (surveys that use an overly broad definition of sexual assault in order to get such a high number) to justify eviscerating due process rights in campus tribunals. This same statistic has been used to claim there is a “rape culture” on college campuses, with activists and politicians insisting that drunken hookups are now sexual assault. Further, as I previously stated, the lack of due process and the ignoring of exculpatory evidence create a kangaroo court. Franz Kafka would be appalled.

NBC also distorted a recent story about Supreme Court Brett Kavanaugh. NBC wrote: “The New York Times published an excerpt of a new book detailing asexual assault allegation against Kavanaugh while a student at Yale that he had previously denied. The book also includes information about a new allegation.”

This leaves out important details — like how the book does not contain corroborating evidence for the previous claim and the new allegation was denied by the alleged victim.

The most egregious case in the book from Johnson and Stuart involves a male Amherst College student who blacked out, received oral sex from his girlfriend’s roommate, and was accused of sexual assault nearly two years later. In the time between the act and the accusation, the female accuser lost her friendship with the man’s girlfriend and became friends with feminist campus activists. Even though Amherst has a policy explaining that a person could be in a black-out state without appearing to be inebriated and determined the male student was likely blacked out, it still found him responsible and expelled him. After the student hired an attorney, he learned that the woman had lied about what happened after the alleged encounter. She claimed she was distraught and called a friend over. That “friend” was actually another male student with whom she had been flirting previously in the night. She sent text messages to her friend explaining that she had done something “so fu**ig [sic] stupid” with her roommate’s boyfriend and that “it’s pretty [obvious] I wasn’t an innocent bystander.”

She proceeded to text this friend about the man she invited over after the encounter — about how he wasn’t making a move on her. This male student signed an affidavit saying she was not at all distraught that night.

When the male student brought these messages to Amherst, school administrators refused to allow him back in, claiming the process worked. The school eventually settled with the student.

Naturally, NBC didn’t include anything from the actual book in its report.

Mediation is playing an increasingly larger role in helping colleges manage serious campus disputes—particularly in Title IX–related matters. Using “neutrals”—parlance in the legal field for mediators—more often is being propelled by industry choice, not legal mandate.

Higher education finds itself today in a highly regulated and litigious culture—where debate abounds regarding dispute resolution processes for colleges. The culture wars over dispute resolution models in higher education threaten to undermine the autonomy of the field. This situation is also highly dynamic; it is almost impossible to predict what might happen in Title IX regulation. Many institutions are confused about which models of dispute resolution are, and will remain, legally compliant. The U.S. Department of Education has changed course several times on preferred dispute resolution models—and may very well do so again. Several courts around the country have ruled on college discipline systems—with various, and at times inconsistent, decrees on fundamental fairness and due process. However, amidst the confusion, one trend seems clear: Colleges are being mandated to use more formalized adjudicatory processes. College “court,” for better or worse, is emerging. But will a trend toward mandated formal adjudicatory models in higher education propel other models—perhaps ones higher education chooses for itself?

Integrating ADR Into the Process

Our extensive experience with actual court systems leads us to believe the answer will be yes. The legal system itself now depends heavily on alternative dispute resolution (ADR)—which includes mediation. Individuals with serious disputes often want, need and even deserve ADR. ADR gained widespread acceptance a generation ago for the simple reason that not everything can, or should, go to court or be subject to adversarial or overly formal processes.  What happened in the legal system is now happening on campuses: Colleges are relying on alternative forms of dispute resolution of their own devise—educational equivalents of ADR that, as we advocate, will benefit immensely from being integrated with received wisdom regarding ADR from the legal field.

Consider as a prime example the recent evolution of Title IX compliance work. Individuals impacted by sex discrimination often actively seek to avoid formalized adjudicatory processes; they instead desire (even demand) outcomes and interventions that colleges sometimes struggle to offer—meaningful long-term resolutions, truth (not posturing in a hearing), healing, social justice, apologies, creative remedies and, yes, learning. Every Title IX coordinator has interviewed students who do not wish to attend hearings or invoke sanctions. To some students, being forced into a formal, adversarial hearing seems like a sanction in and of itself. Moreover, the use of no-contact arrangements is now ubiquitous in Title IX work—often dominating the time and energy of Title IX administrators. Consider also that many well-trained and dedicated dispute resolution specialists on campuses—members of the Association for Student Conduct Administration, Title IX investigators, etc.—are lamenting that the educational function of student discipline is now floundering in a tide of adversarial, legalistic formalisms. Litigation is replacing education—law over learning.

Struggling to maintain autonomy in the face of external regulation and find sustainable solutions, colleges need help. We recommend self-help for higher education—combining existing and functional dispute resolution practices on campus with proven mediation techniques and experienced neutral mediators.

The Need for Experienced Neutrals

The spread of mediation in higher education will be facilitated by the cadre of trained and experienced neutrals available to integrate with the higher education industry. College mediation practices can have access to lawyers and retired judges with extensive experience—some in sexual violence matters in other contexts, such as criminal justice or in the business world. The point is not to replicate other systems or simply parachute neutrals into higher education. Colleges and universities will not want to replicate the criminal justice system, which serves different goals and itself is undergoing deep and fundamental change (and has struggled with issues of social justice, including dealing with acquaintance sexual violence). Mediation, by its very nature, is not uniform and must adapt to and serve the environment in which it operates. Experience in business or criminal court mediation provides useful training for mediators; much of what mediators learn in one context is transferrable to other situations. Uniquely, mediation in the higher education context must be driven by learning and educational outcomes.  A proposed model developed with academia at its forefront could involve internal school resources, e.g., counselors, advisors, etc., serving as the first step to work with the parties involved, and the second step could introduce external professionally trained mediators who understand the nuances of school campuses and the reported policy violations that occur there. Experienced neutrals will be population sensitive, recognizing, for example, that traditional-aged college students are at a critical stage of development.

The resources to integrate mediation into higher education are already available. Entities experienced in dispute resolution system design, such as JAMS, are available to work with higher education in developing sustainable and facilitative dispute resolution models for the colleges of the future. Colleges have the opportunity to enlist retired judges, for example, whose expertise has been developed by tax dollars. A pioneer in the field of ADR, the late Harvard professor Roger Fisher, might have implored us to “get to yes” with experienced mediators, as opposed to “getting to no” with adversarial processes.

Modern Solutions to Historical Problems

The rise of mediation in higher education will not herald the arrival of an exogenous force. Higher education neutrals must connect their knowledge and experience with dispute resolution trends from within higher education. College administrators have recently made significant strides to make historical college discipline codes more responsive to the modern demands of social justice and more respectful of students in conflict with others or with the institution itself. Institutional efforts at implementing restorative justice models and using educational conferences, however, have struggled to gain legal traction in court and with regulators. Yet restorative justice techniques have great potential for higher education institutions—working with individuals’ lived experiences, healing and focusing upon community building and reclamation.

Restorative justice techniques were borrowed from the legal system, where they have shown promise in difficult-to-resolve matters—for example, those involving sexual misconduct among acquaintances. Combining college restorative justice practices with mediation and trained higher education neutrals offers the potential for even more promising outcomes. (Some prosecutors in criminal justice systems use a form of restorative justice, but there is a coercive aspect to implementation in this context. Prosecutors can use restorative justice as leverage over criminal defendants—i.e., participate or go to jail. Colleges, however, are at liberty to divorce restorative justice practices from a prosecutorial or adversarial function—and instead connect such practices with educational functions.)

Many colleges also use educational conferences as a point of contact with students in conflict with the institution or others, but as valuable as they may be, proponents of highly legalistic and adversarial systems of dispute resolution are inclined to view these conferences as defective hearings—not valuable educational interventions where trained educators in the role of facilitators explore how students may learn to make better decisions or resolve conflicts as active agents in the resolution process. Restorative justice practices and educational conferences capture many, if not all, of the significant features of modern mediation. On its own, higher education has been charting a path toward what we see as an evolving form of  mediation. It’s time to take the next step and integrate good work on campus with skills and skilled professionals in the ADR field.

A recent court decision on due process extolled the virtue of cross-examination as a tool to find the truth; in the educational context, the greatest tool to uncover the truth may be building trust. There are unusual matters where hope for trust and learning are gone. There will be times when formal adjudicative processes will be necessary and appropriate, when individuals have so transgressed our educational community norms that educational opportunities have ceased and there is nothing to mediate. But the majority of conflict on campuses occupies other spaces where learning and healing opportunities are often present.

Stepping Along the Right Path Forward

Our colleges deserve dispute resolution processes suited to our industry, ones that we have created. Mediation offers a path forward, building on the very instincts of educators to create facilitative, not adversarial, learning environments. Enter experienced third-party neutrals, those unaffiliated with the school, whom would be able to not only foster trust among the parties, but also between the parties and the school by virtue of the very fact that they aren’t a member of administration.  Seasoned external and skillful mediators brought to campus for their dispute resolution expertise alleviates perceptions of bias and provides safeguards against potential overburdening of faculty and staff. It is time for a common sense idea to enter the cultural dialogue in higher education. We can often work things out with a little help from others, but when we can’t, there is always the court system to fall back on.

 Hon. Jane Cutler Greenspan (Ret.) is a JAMS neutral, based in Philadelphia. She routinely serves as an arbitrator and mediator in complex commercial, labor, financial and business disputes, as well as an adjudicator in a number of higher education Title IX cases. 

 Peter F. Lake is a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. He is also a senior higher education consulting attorney with Steptoe & Johnson LLP.

Editors Note: The opinions expressed in this column are solely those of the author and do not necessarily represent the opinions of the Tropolitan or its staff members. Address responses and critiques to opinion@tropnews.com

Last week, the L.A. Times reported that the U.S. Department of Education opened more than two dozen different investigations around gender discrimination in universities such as Rice and Yale. The basis of these investigations comes from studies that show gender inequality in scholarship offers. One such survey was recently released by the nonprofit organization Stop Abusive and Violent Environments (SAVE). The survey points out that most single gender scholarships are granted to women. 

The study examined more than 200 colleges across the United States and found that the total number of single gender scholarships vastly favored women over men. In our state of Alabama alone, there are 87 women-only scholarships compared to only three for men. Here at Troy, there are five scholarships only for women and one scholarship only for men. Auburn University has one of the most egregious gender scholarship gaps in the entire country. There, women are offered 67 scholarships compared to a measly one for men. 

Title IX, a federal law that applies to any school that receives federal money, makes discrimination based on sex in education programs illegal. Single gender scholarships are permitted under this rule if the “overall effect” of scholarships is equitable. In other words, the scholarships are legal if the opportunities offered to one gender are equal to the other. This recent study from SAVE shows that the overall effect of these gender-specific scholarships is not equitable. Therefore, the universities offering these scholarships in such lopsided proportions should be investigated, as they are quite possibly violating title IX rules. 

The reason for these possible violations isn’t the fact that universities offer only women or only men scholarships. Each individual scholarship on its own is and should be respected and uncontested. The problem is when the disproportionate numbers offered to women over men is taken into account. At Troy for instance, if the university offered five scholarships that were only to women and five that were only to men, that would have an overall equitable effect since both genders would be given the same number of exclusive opportunities. Instead, women are given a larger amount more than men, and thus the effect is not equitable. 

Now, if there are more men receiving gender neutral scholarships, that might change the balance enough for the existence of such a gender specific scholarship gap. However, I was unable to find specific numbers of distribution of general scholarships based on gender. I did find that more women attend and graduate college compared to their male counterparts. Women make up roughly 57% of college students and earn more bachelors and doctoral degrees annually than men. 

I think that men should have at least an equal amount of gender specific scholarships. 

Senators Seek to Break Sexual Assault Impasse on Education Bill

• Bipartisan group looks to balance accuser, accused rights
• Congress, Education Department working separately

By Emily Wilkins | June 27, 2019 11:02AM ET | Bloomberg Government

A group of eight senators is working to tackle one of the most contentious issues in higher education—when and how colleges need to respond to allegations of sexual assault.

Senate Health, Education, Labor, and Pensions Chairman Lamar Alexander (R-Tenn.) and ranking member Patty Murray (D-Wash.) brought the group together in a quest to resolve potentially the biggest remaining obstacle to a bipartisan reauthorization of federal higher education programs.

“We’re all looking for the same thing: an environment that encourages reporting when there is a problem and a process that gets at the truth and is fair to the person bringing a claim and fair to he person who is accused,” said Sen. Tim Kaine (D-Va.), a member of the working group.

Murray and Alexander are members of the group, as well as Republicans Tim Scott (S.C.), Susan Collins (Maine), and Richard Burr (N.C.), and Democrats Kaine, Maggie Hassan (N.H.), and Tammy Baldwin (Wis.).

University’s lawyer doesn’t know what ‘cross-examination’ means

The University of Michigan does not have a good history with Senior U.S. District Judge Arthur Tarnow.

That history got even worse on Monday.

The federal judge let loose a stream of invective against the university in an eight-page brief to the 6th U.S. Circuit Court of Appeals, citing its behavior in a due-process lawsuit by a student accused of sexual misconduct.

Tarnow accused UMich and its “ever-expanding” legal team – three law firms and its general counsel – of caring more about President Mark Schlissel’s image than “providing a fair process for adjudicating sexual misconduct claims.”

The university has been arguing with Tarnow for more than a month about his demand that Schlissel (feature image) appear at a settlement conference in the case. A transcript of a May 1 conference shows UMich lawyer Joshua Richards repeatedly relitigating the order, questioning Tarnow’s intelligence, and then asking the judge to dismiss himself from the case.

The 6th Circuit approved the university’s motion to stay Tarnow’s hearing last week, where Schlissel had been ordered to appear, and asked him for an explanation. Tarnow’s Monday brief blamed the university for bad-faith stalling tactics and needless publicity.

He also questioned the intelligence of Richards, the university’s lawyer, who “repeatedly claimed that he did not understand the meaning of the term ‘cross-examination’” at an April 25 teleconference.

“The Court hopes to hold this informal conference in open court” – a point of contention with UMich – “to quell the public’s confusion concerning the status of the case which has been generated by the University’s recent filings,” Tarnow told the 6th Circuit.

The Bill Clinton-appointed judge has twice ruled against UMich in the past year for withholding due process from parties accused of sexual misconduct, in this case and another brought by a female professor.

‘Delay, uncertainty, and additional billable hours’ for no reason

UMich has repeatedly insisted that Schlissel has better things to do than appear in Tarnow’s court, and that the president does not have “primary responsibility” for the Title IX policy.

It could not tell Tarnow which official actually has that authority, however, and the judge demanded Schlissel appear as the only person who can approve a final settlement proposal. Resolving this case “should be more important to [Schlissel] than almost anything going on at the university,” he said May 1.

In his Monday brief, Tarnow (left) defended his prerogative over “case management” and his belief that the parties were “not working together” to institute a sexual misconduct policy that can pass legal muster.

He laid the blame squarely on the university, which failed to consult the accused student’s attorney before issuing a new sexual misconduct policy.

MORE: Stop arguing and turn over Schlissel, Tarnow says

The 6th Circuit’s Baum ruling last fall, which ordered universities to let an “agent” of the accused student cross-examine the accuser in a live hearing, “should have been helpful in formulating a hearing procedure acceptable to both parties” in this case, Tarnow wrote.

The revised UMich policy followed four months later, and its lawyers cited it “as a basis for declaring compliance with due process and for filing a motion to dismiss” the lawsuit:

The University’s unilateral actions virtually guarantee the possibility of an appeal of any ruling by the Court. The result? Delay, uncertainty, and additional billable hours for an ever-expanding defense team, with no added value to its client. … [UMich should have]—at a minimum—sought input from Plaintiff’s counsel before instituting a
policy which directly affects her client and the outcome of this case.

Tarnow showed his irritation in footnotes. One identifies the three firms on retainer for UMich in this case and says its general counsel is “probably on a salary” yet didn’t make an appearance in the year-old suit until early June.

He also distinguished the behavior of the university’s many lawyers, who seek “a fair result to be achieved expeditiously,” from the university itself, though he singled out Richards for contempt.

The 6th Circuit had just remanded the case to Tarnow’s court when the parties met for a settlement conference, but Richards (right) used the occasion to make a “performance,” the judge said. This is where Richards confessed his confusion at the meaning of “cross-examination,” and apparently it caused Tarnow to swear at him.

The judge did not deny UMich’s accusation of the “expletive,” but said if he did swear, it was because of the “insincere behavior” of Richards. The reason the May 1 conference had a transcript was because of the “tenor” of the April 25 “off-the-record” meeting, he told the appeals court.

MORE: UMich withholds degree, transcript with no hearing

Tarnow laid out his argument again for Schlissel’s appearance in court, including the president’s “ultimate authority” to resolve the case and UMich’s failure to even provide the title of another official with “full settlement authority.”

Schlissel has already violated the rules of Tarnow’s court by refusing to appear as the “client” in the lawsuit at the initial status conference, the judge said:

His attendance at the conference avoids the need to resort to the bureaucratic and lengthy settlement process inherent in university litigation. It is also important for the President to be aware of the demeanor of his legal representative.

He mocked the university’s argument that Tarnow plans to “cross-examine” Schlissel. He doesn’t have to say anything, the judge said: “As with any settlement conference, the talking will be left to the attorneys.”

Conference should be public because of university’s bumbling

The university’s stated desire to protect the settlement talks from becoming a media circus is belied by its own actions, according to Tarnow.

The settlement conference with Schlissel was Tarnow’s attempt to protect everyone from “unnecessary publicity and delay,” yet “the University’s attorneys have refused to participate in good faith,” the judge wrote.

Richards’ refusal to provide the president unless Tarnow put it in a written order has resulted in publicity that “neither helped the University’s image nor contributed to the resolution of this case,” according to the judge. He noted a local legal publication ran an “ambiguous headline” that suggested Schlissel himself was wanted for sexual misconduct.

UMich attorneys look “more concerned with keeping the President out of the public eye” than designing a fairer sexual misconduct process, he said. Tarnow has “bent over backwards” to accommodate Schlissel’s schedule, to no avail.

MORE: UMich’s terrible, horrible, no good, very bad day at the 6th Circuit

It’s true that Tarnow made a “last-minute decision” to hold the settlement conference in public, as opposed to the in-chambers private meeting he had previously suggested.

But the judge said the change was prompted by his desire for transparency and the university’s June 5 motion to dismiss, which “incited confusion amongst the media on whether it was an attempt by the University to avoid the conference.”

The university has “pursued every possible avenue for garnering publicity in this case,” including by using an “improper method” to get the 6th Circuit to intervene, Tarnow wrote. It wasted a month by seeking a “writ of mandamus,” giving the appeals court one day to consider the filing, rather than seeking “interlocutory appeal” of Tarnow’s May 8 order denying reconsideration.

UMich told the Detroit Free Press that Tarnow’s brief showed why the public university “is deeply concerned by the fairness of the proceeding in this case.”

Spokesperson Kim Broekhuizen cited Tarnow’s change of mind on the openness of the settlement conference “less than 48 hours before” as the reason for Schlissel’s backing out. He was “fully prepared” to attend a closed conference, she said, and Tarnow has not explained how an open conference would lead to a faster resolution “than a private discussion between the parties and the court.”

MORE: UMich violated professor’s right to cross-examine accusers