ABOUT New TIX Regs

DEVOS’S Sexual-Assault Rule Prevails. Due Process On Campus Survives In Court.

, , , , /

DEVOS’S Sexual-Assault Rule Prevails. Due Process On Campus Survives In Court.

One of the stakes in November’s election is the fate of the Trump Administration’s due-process reforms for campus sexual-assault cases. Education Secretary Betsy DeVos’s new rule goes into effect Friday, August 14, 2020, and this week it passed its first legal tests.

New York Attorney General Letitia James sued to stop the rule and sought a preliminary injunction. Federal Judge John Koeltl, a Bill Clinton appointee, denied the injunction this week on grounds that the department had followed proper procedure in drafting the rule and would likely prevail on the merits.

“Rather than harming students,” Judge Koeltl wrote, “the Rule has the potential to benefit” both accuser and accused because they “are given greater assurance that if they prevail in the grievance proceeding, that result will not be overturned because the process did not comply with due process.” Meanwhile, federal Judge Carl Nichols ruled on similar grounds against a challenge to the new rule by 17 state attorneys general.

The rulings are vindication for Mrs. DeVos for following the
Administrative Procedure Act (APA) in writing the rule. The Obama
Administration, led on this issue by Vice President Joe Biden,
disregarded the APA by writing “Dear Colleague” guidance to schools
that eschewed public comment. The Trump Administration reviewed
nearly 125,000 comments before making its rule final.

DeVos’s Sexual-Assault Rule Prevails – WSJ –PDF   wsj.com-Editorial

Share this:Tweet about this on Twitter
2ND DISTRICT Court Denies Motion To Preliminarily Enjoin Implementation Of New Title X Regs

, , , /

2ND DISTRICT Court Denies Motion To Preliminarily Enjoin Implementation Of New Title X Regs

Judge Carl J. Nichols of the U.S. District Court for the District of Columbia denied a motion for preliminary injunction made by the Attorneys General of Pennsylvania, sixteen other states, and D.C. to preliminarily enjoin the U.S. Department of Education’s new Title IX rules. 

Feeling some deja vu? That’s because a federal judge in New York did the same thing on Sunday in a similar case brought by the Attorney General of New York State. With the new Title IX regulations set to take effect tomorrow, Judge Nichols’s ruling plays a critical role in ensuring students will be treated fairly in campus disciplinary proceedings going forward.

Pennsylvania, New Jersey, California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and D.C. filed their lawsuit to challenge the regulations.Among other things, the plaintiffs argued that the new regulations are “arbitrary and capricious,” and filed a motion for preliminary injunction.

Judge Nichols cited Sunday’s New York decision multiple times in concluding that the plaintiffs have not demonstrated a likelihood of success on the merits of the case — a key factor in determining whether to grant a preliminary injunction. In assessing whether the regulations are arbitrary and capricious, he stated that “the Court’s role is limited to confirming that the agency has fulfilled its duty to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”

In other words, the court isn’t supposed to decide whether agency rules are the best rules or even particularly good rules — just whether the Department of Education has put forth a justification for them that makes sense. FIRE is glad to see the court acknowledge that ED has done so.

thefire.org-Samantha Harris

Share this:Tweet about this on Twitter
JUDGE Denies Blue State AG’s Attempts To Deny College Students Due Process

, , /

JUDGE Denies Blue State AG’s Attempts To Deny College Students Due Process

A judge in Washington, D.C., has denied an attempt by 17 Blue State Attorneys General as well as the District of Columbia to delay implementation of new Education Department rules requiring colleges and universities provide students accused of sexual misconduct with basic due process rights.

Judge Carl J. Nichols, a President Donald Trump appointee, denied the AGs motion to block the new Title IX regulations. The AGs made numerous arguments against the new regulations, including the fact that the new regulations provide due process to accused students. 

Judge Nichols denied these claims and others in his ruling. At various points in Nichols’ ruling, he scolds the AGs for attempting to supplant their views with that of the Education Department. For example, the AGs argued schools should be responsible for adjudicating sexual assaults that occurred off-campus, such as at apartment buildings. The Education Department, however, adopted a more narrow view of what situations fall under the purview of the college, explaining that the assault was under the school’s discretion if it occurred at a place or event where “the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs.”

As Nichols ruled, “the Final Rule is rooted in the text of Title IX itself, and the Court cannot supplant the Department’s view of its own authority with Plaintiffs’ preference for a broader one.”

As author and professor K.C. Johnson noted, Nichols dismissed “blue-states’ lengthy complaints about fair grievance procedures in one paragraph, implies they weren’t serious,” and suggests it was “Hard to imagine any court arguing that x-examination is some sort of unfair or gender-biased procedure.”

Nichols pointed to several concerns he had with the regulations, but ultimately said he could not rule simply on his own beliefs that differed from the Education Department. Further, Nichols was less enthusiastic about the new Title IX guidelines in his ruling that U.S. District Court Judge John G. Koeltl was in his ruling last week. Koeltl was appointed by President Bill Clinton.

dailywire.com– Ashe Schow

Share this:Tweet about this on Twitter
DEMOCRAT Efforts To Delay Education Rules Requiring Due Process For Accused Students Are Failing

, , /

DEMOCRAT Efforts To Delay Education Rules Requiring Due Process For Accused Students Are Failing

As soon as the U.S. Department of Education revealed its final guidelines on how colleges and universities should adjudicate allegations of sexual assault, Democrats kicked into high gear to try and stop the rules from going into effect.

At issue is the fact that the new rules require schools to provide accused students some basic due process rights – like the specific allegations against them, the ability to cross-examine the evidence and witnesses against them, and access to the evidence against them prior to the hearing – which modern activists claim hurt victims. These same activists, including prominent Democrats such as presumptive 2020 nominee Joe Biden, claim we must “believe women” – except those who accuse Democrats.

When Education Secretary Betsy DeVos revealed the final rules in May, the attorneys general in numerous Blue States filed a lawsuit against the Department in an attempt to block the new rules from being implemented in the hopes that Biden wins the election and will stop the rules altogether. Should this happen, colleges and universities will continue to deny accused students constitutional due process rights, destroying futures and inviting hundreds more lawsuits.

As The Daily Wire previously reported, Red State attorneys general filed their own brief defending the new regulations. The new rule, the AGs wrote, “requires educational institutions to investigate and, where proved, punish allegations of sufficiently severe, pervasive, and objectively offensive sexual harassment. It also provides a needed framework, consistent with long-standing Supreme Court precedent, that protects the foundational constitutional rights of due process and speech.”

Last week, a federal judge in New York denied a move by state school boards who tried to block the new rules. U.S. District Judge John G. Koeltl wrote that the new rules don’t harm accusers.

“Rather than harming students, the Rule has the potential to benefit both complainants and respondents by providing procedural guidance for grievance procedures,” Koeltl wrote. “This process helps not only respondents but also complainants who are given greater assurance that if they prevail in the grievance proceeding, that result will not be overturned because the process did not comply with due process.”

dailywire.com-Ashe Schow

Share this:Tweet about this on Twitter
MORE GREAT NEWS! Federal Judge Refuses To Block Campus TitleIX News Regs

, , , /

MORE GREAT NEWS! Federal Judge Refuses To Block Campus TitleIX News Regs

A federal judge allowed the Education Department to move forward with new rules governing how schools and universities respond to complaints of sexual assault. In a suit challenging the rules, attorneys general from 17 states and the District of Columbia argued that the policy would block schools from investigating certain sexual abuse complaints and would discourage students from reporting assaults.

But US District Judge Carl. J. Nichols rejected those arguments, and wrote:

Seventeen states and the District of Columbia filed this suit challenging the U.S.Department of Education’s final rule addressing Title IX obligations, which was published in the Federal Register on May 19, 2020, and is scheduled to take effect on August 14, 2020. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020) (to be codified at 34 C.F.R pt. 106) (the “Final Rule” or “Rule”). Plaintiffs later moved for a preliminary injunction enjoining implementation of the Rule or, in the alternative, for a stay of its effective date pending judicial review. Although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation. For those reasons, discussed below, the Court denies Plaintiffs’ Motion.

Education Secretary Betsy DeVos said the ruling is “yet another victory for students and reaffirms that students’ rights under Title IX go hand in hand with basic American principles of fairness and due process.”

nypost.com-AP

Share this:Tweet about this on Twitter
GREAT NEWS! JUDGE Refuses To Halt TitleIX Regs. It Can Benefit Both Accusers & Accused.

, , , /

GREAT NEWS! JUDGE Refuses To Halt TitleIX Regs. It Can Benefit Both Accusers & Accused.

If you’re going to challenge an agency regulation, you’d better show how it violates legal precedents. New York City’s board of education and the state of New York failed miserably in that regard, not even coming close to persuading a federal judge to either halt or push back the Friday effective date of the Department of Education’s Title IX regulation on campus sexual misconduct proceedings.

In a 46-page opinion Sunday, Judge John Koeltl said the plaintiffs overreached in arguing the regulation was “arbitrary and capricious” in violation of the Administrative Procedure Act, which governs federal rulemakings.

The judge notes it took until the Trump administration for the federal government to actually define sexual harassment as “unlawful sex discrimination under Title IX” in regulation, as opposed to facially nonbinding guidance. That was the format chosen by the Obama administration, and as a result, easily junked by its successor. Education Secretary Betsy DeVos gave educational institutions nearly three times longer to prepare than the APA requires – 87 days, putting the effective date in late summer and considering competing burdens from COVID-19, Koeltl notes.

Criticism that accused students get preferential treatment in the regulation is contradicted by the department’s confirmation that it lets “either party equally” challenge a finding “on the basis of procedural irregularity,” the judge said. He noted the department received public comments relaying “personal experiences” with discriminatory application of grievance procedures toward both accusers and accused.

thecollegefix.com– Greg Piper

Share this:Tweet about this on Twitter
FYI: TITLE IX Rule Is Effective On August 14, 2020. And Is Not Retroactive

, , /

FYI: TITLE IX Rule Is Effective On August 14, 2020. And Is Not Retroactive

According to the Office for Civil Rights Blog, the new Title IX rules that will go into effect on 8/14/2020, will not be retroactive. I know that this is very disappointing, as many of America’s sons and daughters, (…really, it’s mostly sons) endured horrific mental trauma in being falsely accused, while denied due process, and the opportunity to defend oneself against an accusation, which was often anonymous.

I certainly wish the new 2020 Title IX guidelines were retroactive. It would be nice if our sons who were denied Title IX due process could at last, be heard. It would be nice if our loving kind sons, who endured unreasonable, unethical and hateful/bias Title IX hearings might actually be allowed retroactively to do something that many have been denied, by their University.  And that is to defend their reputation, to defend their decent nature, to defend their good name, to defend their innocence. But the Office for Civil Rights has decided this is not to be.

While I am grateful that Trump’s Dept of Education put an end to the unjust and illegal 2011 Dear Colleague Letter under Obama/Biden, I am frustrated with OCR on this specific issue. -Alice True

Read OCR’s blog post about this subject:  2.ed.gov/ocr/blog

Share this:Tweet about this on Twitter
TO CRIPPLE The Abusive Campus ‘Sex Bureaucracy,’ Rein In Title IX Coordinators

, , /

TO CRIPPLE The Abusive Campus ‘Sex Bureaucracy,’ Rein In Title IX Coordinators

If you want to entrench a government policy, make sure someone’s job depends on enforcing it. Even if that person isn’t a true believer in the program initially, she will be by the time her first paycheck arrives – and increasingly after that. That’s certainly the case with the education system’s Title IX coordinators, who are charged with overseeing schools’ compliance with federal sex discrimination statutes and questionable regulatory dictates. 

What do Title IX coordinators do? Their core job duty, at least in theory, is to monitor their institution’s compliance with Title IX of the Education Amendments of 1972, which helps ensure that institutions receiving federal money do not tolerate sexual harassment that effectively bars the accuser’s access to educational opportunity.

However, under Obama/Biden’s Dept. of Education, regulators’ zeal for stamping out sexual harassment has warped enforcement in ways that violate students’ free speech and due process rights. Fortunately, the Trump administration has withdrawn some of the worst guidance documents and issued binding regulations that should discourage schools from curtailing students’ fundamental rights. However, there is at least one more problematic Obama-era Title IX guidance remaining on the books. In 2015, Catherine E. Lhamon describes at length, the procedures that federal funding recipients must follow in employing Title IX coordinators. 

The term “coordinator” appears nowhere in Title IX itself. Yet onto this slender bureaucratic reed, the Obama administration engrafted a complex regulatory regime that essentially created privately administered “sex bureaucracies” within every funding recipient’s management.

Under pressure from this guidance, many colleges and universities expanded their Title IX offices. Harvard University has by my count 58 compliance staff members. Yale University has 22. Even tiny liberal arts colleges have significant Title IX offices: Middlebury has one main Title IX coordinator and six deputies; Amherst has one coordinator and six deputies; Haverford has one and eight deputies. As these offices have grown, staff duties have expanded to include work going beyond ensuring compliance with the law and instead promoting the “spirit” of Title IX. One Swarthmore coordinator noted to the media that these “jobs are really not just about compliance anymore, but also about campus climate.”

The Trump administration has made a priority of restoring the rule of law and stopping agency abuse of guidance documents: a 2019 executive order lays out procedures for transparency in issuance of guidance documents and restricts executive agencies’ unlawful issuance of guidance documents. In 2018, Associate Attorney General Rachel Brand issued a memo prohibiting Department of Justice components from issuing guidance documents that effectively bind the public. 

The Trump administration should follow through on its commitment to pull back overreaching guidance and repeal this problematic document, in order to rein in the Title IX coordinators and their abusive sex bureaucracy.

thehill.com/opinion-Alison Somin

Share this:Tweet about this on Twitter
JUDGE Asked To Block Overhaul Of Campus Title IX Sex Assault Rules

, , /

JUDGE Asked To Block Overhaul Of Campus Title IX Sex Assault Rules

Saying the impending regulations will be costly and make it harder to discipline sexual misconduct, a group of blue states urged a federal judge recently to block the Trump administration’s changes to how schools must adjudicate sexual harassment and assault claims.U.S. District Judge Carl Nichols did not rule from the bench following a two-hour hearing held  remotely, but said he will issue a ruling on whether to block the new regulations in “relatively due course.”

In 2018, the Trump administration announced plans to roll back a series of Obama-era guidance documents detailing how colleges adjudicate claims of sexual misconduct under Title IX. The Obama rules were hailed by advocates.. but some experts warned the regulations did not include sufficient due process protections for the accused and many accused students won lawsuits challenging their discipline under the rules. The Trump administration rules, which were formalized in May, were aimed at that critique of the regulations. The new rules require schools to hold a live hearing when adjudicating harassment and assault claims, allowing representatives for the accuser and accused to conduct cross-examination.

Jennifer Dickey, a Justice Department attorney who argued for the Trump administration, said pausing the implementation of the regulations over schools’ claims that they will have a hard time complying overlooks that the administration views the change as an important correction implicating constitutional and statutory concerns.

“This is the culmination of a nearly three-year process to identify and respond to a serious issue of sexual harassment across the country,” Dickey said. “The department is well aware that schools have adopted a series of approaches to respond to sexual harassment, not all of which have fairly treated the accuser and the accused, and Title IX obligations are not suspended during a pandemic.”

courthousenews.com-Tim Ryan

Share this:Tweet about this on Twitter
REPUBLICAN Attorneys General Argue Trump’s Title IX Rules Follow The Law Better Than Obama’s

, , , /

REPUBLICAN Attorneys General Argue Trump’s Title IX Rules Follow The Law Better Than Obama’s

Responding to a lawsuit by several state Democratic attorneys general, nearly as many of their Republican counterparts are coming to the defense of the Department of Education’s new Title IX rules. Fourteen top law enforcement officials, from Alaska to Florida, argued that the final regulation on sexual misconduct creates “reasonable standards for fighting gender discrimination in education,” while also providing a safeguard for free speech and due process. “The need for procedural due process only increases in the context of sexual harassment and misconduct,” says their friend-of-the-court brief. “A finding of guilt attaches a special stigma to the accused party that will stay with them well after they exit campus.”

Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation, noted their brief “represents the highest-profile *political* support that the movement for campus due process has received,” he tweeted, calling it “a ringing indictment of unfair procedures” used by some of their own state universities.

The public support for the new Title IX rules come on the heels of monthslong opposition and litigation attempts from Democrats, who still favor the Obama-era rules on sexual misconduct proceedings. The ACLU sued to block implementation of the regulation saying it created a “second-class standard for reports of sexual harassment and assault.” The Republicans disputed that. The regulation promotes the “anti-discrimination purposes of Title IX without infringing on the free exchange of ideas,” they argued:

And as such, it rejects the notion that public universities can punish students for speech—no matter how offensive, disparaging, or unpopular it may be—unless it has been established that the speech prevents another student from participating in or enjoying the benefits of a recipient’s education program.

The due process rights of both accuser and accused are protected under the final regulation by mitigating against “arbitrary decision making,” the officials assert. Prior regulations and guidance contained “constitutional and statutory deficiencies,” such as authorizing “single investigator” models that deprive accused students of “impartial decision makers.” They tolerated efforts to inhibit live hearings and cross-examination, “even when witness credibility was at issue,” and “effectively eliminated” presumption of innocence.

Courts identified “numerous safeguards vital to fair process and the context in which a student accused of sexual harassment is entitled to receive them” following the Obama administration’s 2011 guidance on sexual misconduct proceedings, which the new regulation supersedes. “Plaintiffs and the academic institutions they claim to represent could have heeded the text and spirit of these rulings at any time,” the brief continues: “Instead, schools, colleges, and universities across the country divested students of due process and waited for the courts to intervene.”

“Numerous courts have recognized the constitutional deficiencies of such procedures,” the brief continued. The new rules step in “where academic institutions have failed,” knowing full well “for years that many of their disciplinary policies fall short of constitutional minimums.” Universities have instead waited for students “to force the issue through litigation,” the Republican AGs say.

thecollegefix.com-Christian Lubke

Share this:Tweet about this on Twitter
1 2 3 4 5