ABOUT New TIX Regs

UNDERSTANDING The Lawsuits Against New IX Regulations

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UNDERSTANDING The Lawsuits Against New IX Regulations

Four lawsuits have been filed against new Department of Education regulations for how colleges must respond to sexual misconduct on campus. The lawsuits question the merits of the regulations and seek to block their implementation. Although the regulations issued by the U.S. Department of Education completely overhaul current policies and procedures for handling sexual misconduct complaints, the significance of those changes has been largely overshadowed by the coronavirus. The American Council on Education and more than 24 other higher education associations have asked the Education Department for more time to restructure campus policies and procedures. The associations have also asked a federal court to halt the implementation of the changes.

Supporters of the new requirements argue that students will be harmed if the new regulations are not implemented by August.

Robert Shibley, executive director of the Foundation for Individual Rights in Education, said, “Going into yet another school year without these protections in place is not acceptable.” FIRE and other civil liberties groups are planning legal action to ensure the new regulations are implemented by the deadline. READ FULL Article: insidehighered.com-Greta Anderson

A coalition of Red State AGs filed a 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.” READ FULL Articles: Blue State AGs Want To Limit College Students Due Process Rights- Red State AGs Are Fighting Back

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TITLE IX Reforms Will Restore Due Process for Victims And The Accused

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TITLE IX Reforms Will Restore Due Process for Victims And The Accused

Secretary of Education Betsy DeVos has released new Title IX regulations that radically change how gender sexual harassment and sexual assault disputes are resolved on college campuses. This is a good thing. I am a liberal Democrat, feminist and advocate for Title IX and women’s issues, but the way these disputes have been adjudicated on college campuses using Obama-era administrative guidance has been catastrophic. Those guidelines, encompassed in a 2011 “Dear Colleague” letter, are vague, imprecise, constitutionally and legally dubious and patently unfair toward the accused, contributing to investigation outcomes that are unreliable and too often erroneous. There have been more than 600 court cases filed by accused students challenging unfavorable Title IX rulings, with the majority of the judicial decisions supporting the plaintiffs and scores of additional cases settled favorably prior to judgement.

I am a former faculty member at the Oregon Health & Science University in Portland who personally experienced Obama-era Title IX compliance guidelines. During my ordeal, I was not allowed to know the allegations against me, the names of the complainant or her witnesses, have my own witnesses, present evidence on my behalf or defend myself in any way—and I was gagged throughout. Free speech, due process and truth-finding were out the window, and the preordained outcome was unfavorable. I was to learn a year later that the accusations against me were fabrications. The DeVos regulations will eliminate such injustices.

The DeVos rule affords a meticulous and comprehensive framework for Title IX enforcement that promotes free speech and due process and restores fairness, equitability and credibility to these quasi-judicial campus proceedings.

newsweek.com

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BLUE State AGs Want To Limit College Students’ Due Process Rights. Red State AGs Are Fighting Back.

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BLUE State AGs Want To Limit College Students’ Due Process Rights. Red State AGs Are Fighting Back.

In June a group of 18 Blue State attorneys general filed a lawsuit against U.S. Department of Education Secretary Betsy DeVos to try and block new regulations that would provide much needed due process to college students accused of sexual assault.

In July a coalition of Red State attorneys general filed a brief defending the new regulations.  The attorneys general from 14 other states (Amici States) filed an amicus brief to defend the 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.” In their brief, the AGs make three arguments in defense of the new regulations.

First, the Amici States argue that the new regulations “set forth reasonable standards for combating gender discrimination in educational programs while safeguarding free speech and due process.” In support of this assertion, the Amici States emphasize that the new regulations track United States Supreme Court precedent set forth in Davis v. Monroe County Board of Education and follow the direction of the numerous courts that have repeatedly struck down unconstitutionally overbroad anti-harassment policies.

The Amici States’ second argument asserts, “Plaintiffs’ conscious failure to comply with Title IX and the constitutional norms—not the Final Rule—caused their alleged injuries.” In their lawsuit, the Plaintiffs claim that the regulations will cause them irreparable harm, especially if they go into effect as scheduled on August 14. The Plaintiffs are, in essence, arguing that the deadline is too short.  The Amici States, however, powerfully point out that most of the protections provided in the regulations are “already required by the Constitution and recognized by the courts.” Indeed, there have been hundreds of lawsuits challenging the fundamental fairness of campus Title IX proceedings and courts in many of the Plaintiffs’ jurisdictions have questioned the sufficiency of the protections afforded by campus policies.

The final argument advanced by the Amici States is that “[s]tudents will suffer severe and irreparable harm from an injunction delaying the Final Rule.” Yet every day that the new regulations are not yet in effect is a day that institutions across the country will continue to irreparably harm students by denying them these basic procedural protections. The brief explains why the new regulations are so urgently needed and why issuing the injunction the Plaintiffs are requesting would be so harmful: The absence of meaningful safeguards in current disciplinary schemes means that academic institutions can and have imposed life-altering consequences on students without ever giving them a real opportunity to defend themselves.

Finally, the opening of the Amici States’ brief eloquently argues the merits of the new regulations’ approach. The brief persuasively articulates the appropriateness of the new regulation’s balance—an approach that doesn’t champion the rights of one side over the other, but instead provides a framework where sexual misconduct can be effectively addressed within constitutional boundaries. thefire.org-Joe Cohn  dailywire.com-Ashe Schow

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DUE PROCESS For Title IX In The #MeToo Era

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DUE PROCESS For Title IX In The #MeToo Era

The issue of due process came roaring back to the forefront of national discourse recently. The nation contemplated the sexual assault allegations made against Presidential candidate Joe Biden by Tara Reade and the resulting hypocritical response by Democratic politicians.  Hypocritical because when then Judge Kavanaugh was accused of sexual misdeeds, Democratic leaders were quick to adjudge him guilty as accused. Indeed, Democratic Senator Mazie Hirono stated “men should just shut up …women like [Kavanaugh accuser] Dr. Ford need to be believed.”…“This process is sending the worst possible message to girls and boys everywhere,” Gillibrand said. “It’s telling American women that your voice doesn’t matter. It’s telling survivors everywhere that your experiences don’t count. Senator Gillibrand also lambasted the Republican defense of Kavanaugh.

When confronted with similar allegations against Presidential candidate Biden, Gillibrand stated – “I stand by Vice President Biden. He has devoted his life to supporting women and he has vehemently denied this allegation.” Has Senator Gillibrand had an epiphany and suddenly realized the importance of due process when evaluating sexual assault allegations? Sadly, no. Senator Gillibrand simply chooses to apply one standard for her friends and one standard for her enemies.  

Senator Gillibrand and Presidential candidate Biden’s hypocrisy is exemplified by their continued opposition to Secretary of Education Betsy Devos’ attempts to make Title IX disciplinary hearings fairer and equitable.  Indeed, Biden championed the 2011 Dear Colleague Letter to universities that eviscerated due process in Title IX hearings. Judges have been skeptical about the legality of Biden’s standard for investigating sexual assault allegations, which has come to be emblematic of the “Believe All Women” mantra of the #metoo movement. 

Repeatedly, courts have found the Biden Title IX standards fundamentally unfair. Indeed, one federal judge described Brandeis University’s disciplinary process as being “closer to Salem 1692 than Boston 2015.” The judge further stated:

“Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning… If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”

Even more hypocritical is that Biden and Gillibrand demand that Biden himself be afforded the benefit of the doubt in light of the allegations against him, but simultaneously oppose Secretary Devos’ common sense Title IX revisions – including requiring that investigators be impartial and allowing the cross-examination of a complaining witness’s credibility.  

Thankfully, despite Biden and Gillibrand’s hypocritical opposition, Secretary Devos announced the implementation of the revised Title IX regulations. More than a year after issuing a draft rule, the department released final regulations on how colleges and universities must treat students involved in disciplinary procedures under Title IX, the federal law that bans sex discrimination—and has been interpreted to include sexual misconduct—in federally funded education programs. Institutions will finally have to guarantee due process for students caught up in campus kangaroo courts.

smerconish.com-David Struwe 

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‘REMARKABLE BRIEF’ Defending: Due Process. Free Speech. And TIX Regs. From 14 States

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‘REMARKABLE BRIEF’ Defending: Due Process. Free Speech. And TIX Regs. From 14 States

“No one denies the urgent need to prevent sexual harassment and to punish it when it occurs. Sexual harassment of any sort is unacceptable, including harassment at our nation’s public schools and institutions of higher education. No student pursuing an education should do so in fear that she will be victimized and suffer a lifetime of trauma as a result. For decades, however, educational institutions and the Department of Education have betrayed basic constitutional protections in an effort to purge anything offensive from campus. These constitutional abuses reached a crescendo when President Obama’s Department of Education issued its misguided 2011 Dear Colleague Letter, which trampled the rights of students and created a false choice: either combat sexual harassment or protect constitutional liberties. We propose a different option: do both.

The Department of Education’s new Final Rule accomplishes this goal. It 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. Far from enabling those who would exploit the vulnerable, it affirms a culture of accountability within the contours of constitutional liberty. And nothing could better advance the cause of eradicating a culture of sexual harassment than ensuring that those who are punished are truly blameworthy.

The States of Texas, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, and Tennessee, all have robust public education systems that receive federal funding. Each has a compelling interest in the Department issuing clear, practical regulatory guidance, which enables them and the academic institutions within their borders to effectively combat sexual harassment without sacrificing their commitment to either free speech or due process, nor their receipt of federal funds.

The Final Rule helps them attain that balance. The Final Rule builds upon both well-established and emerging law to set forth reasonable standards for combating gender discrimination in educational programs while safeguarding free speech and due process. Moreover, because the Final Rule corresponds to accepted norms, multiple Plaintiffs and the academic institutions they claim to represent
already have an obligation to provide students with many of the procedures and practices required under the Final Rule. To the extent either claims to be injured, much of that alleged harm originates from Plaintiffs’ own actions and their failure to previously comply with known constitutional standards.”  READ:  14 State Amicus Brief

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THE EDUCATION Of An Education Secretary

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THE EDUCATION Of An Education Secretary

Like most people in Washington, D.C., and other major cities, Betsy DeVos is doing her job remotely, communicating with her staff at the Department of Education through phone calls and video conferences. And oh, yeah: DeVos just revealed a new order on sexual harassment with ramifications for every corner of the country. It may very well shift the balance of campus culture — and perhaps beyond.

She said that getting into the weeds on sexual assault was not something she had thought would become perhaps the issue that defines her legacy. “By the time I was confirmed, that was certainly high on the list,” she said of the “Dear Colleague” letter.

“It wasn’t so much the letter itself,” DeVos said of her gut reaction to the fallout from what had become the new normal for students, mostly young men, facing allegations of sexual misconduct. “It was the implications of what the letter actually resulted in, and, you know, at the beginning of this process, sitting with a number of groups of individuals, of survivors who told their stories, of those who were falsely accused who told their stories, and then with college administrations and chief legal counsel and those who were charged with actually running these processes, it was heart-wrenching to hear some of the stories that I heard.” DeVos said the listening sessions with both survivors of sexual harassment and the wrongfully accused were sobering experiences. “I remember after one of them, I just had to have some quiet and space just to sort of think through and reflect on what I heard,” she said. “It was hard. It was very difficult.”

After the department reined in the guidelines in 2017, DeVos and her team began the process of drafting new ones, this time going through the legal channels that would give her rule changes the force of law, which the previous ones did not have. Immediately after DeVos announced the rule change, the Biden campaign released a statement denouncing it as an attempt to “shame and silence” sexual abuse survivors. He promised a “quick end” to it should he be elected.

DeVos’s rule changes, among other things, aim to correct what she said was a botched attempt at social engineering. “Surprising to me was when coming in just how evident it was that the previous administration had been, not only on this issue, but a host of issues, just on an epic power trip,” she said, “and were trying to inculcate every piece of their view of how culture should be into every policy of that department.” The Obama administration, with Arne Duncan as education secretary, “clearly laid the groundwork for the #BelieveAllWomen movement,” she said, “and I think you can draw a direct line from that to the whole Brett Kavanaugh confirmation process, and I don’t think that was a mistake. I think that was intentional.”

The rule changes offer a clearer definition of “sexual harassment.” The changes also lay out a process for school administrators to adjudicate sexual harassment claims, mandating a live hearing on the allegations and the right of the accused to submit evidence and witnesses as a defense. Accommodations are made for victims who do not wish to face the accused, but it is now built into the process that those facing allegations of harassment have ample opportunity to make their case.

washingtonexaminer.com-Eddie Scarry 

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IN COLLEGE I was Falsely Accused Of Sexual Harassment. Men Like Me Deserve Due Process.

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IN COLLEGE I was Falsely Accused Of Sexual Harassment. Men Like Me Deserve Due Process.

It seems like only yesterday, but also a lifetime ago. After proudly serving my country in the Navy, I headed to Savannah State University in Georgia to study English in the hopes of later pursuing a legal career. 

In the Spring of 2013, I was about to be the first person in my family to graduate from college. I felt that everything in my life was finally falling into place. After years of paying my dues, my hard work and sacrifice were about to pay off. Then, one April morning, an email popped up in my inbox. It was from the Office of Student Affairs and said little more than I was hereby “summarily suspended.”

I was told not to set foot on campus, and within minutes an ominous campus alert went out warning my fellow students to immediately contact security if they saw me — headshot included. It was as if I was an escaped convict or an active shooter loose on campus. And it was all based on nothing but hearsay…I would later find out that two students had accused me of sexual harassment. Rather than investigate, the school suspended me — no questions asked — the very day the first accusation was made. It was just weeks before what would have been my graduation.

From there, my story followed what I have since learned is an all-too-familiar pattern for the falsely accused: isolation from friends and family, loss of reputation, depression, substance abuse, suicide attempt. I say falsely accused, not wrongfully charged or convicted, because my “case” never went past the accusation. There was never any court other than the court of public opinion, where my side of the story was shared or even asked for. To be accused is to be deemed guilty. End of story.

For those of us who are men of color, especially, the effects of false accusations can have highly devastating effects. Many Americans are familiar with the stories of athletes losing their scholarships, changing schools, losing their prospects and having decades worth of hard work and sacrifice lost because of the words of just one student. It is impossible to ignore the implications of race and class on this issue. Stories like this run from Emmett Till through today. 

But now, things are changing for the better and for everyone. In May, the Department of Education released new regulations that establish some fairness in how these delicate matters are investigated on university campuses. While some falsely claim the changes to Title IX are controversial or unfair to accusers, those who read the new rule will be shocked that these steps needed to be spelled out.

The provisions in the final rule include basic obligations like:

► A college must actually investigate allegations of sexual assault or harassment;

► The school must investigate in a timely manner;

► Accused students cannot be suspended or expelled unless they’re found guilty;

► All evidence (and not just evidence that fits the school’s preferred narrative) must be disclosed;

► Investigations cannot be conducted by administrators who have a conflict of interest; 

► An alleged victim’s rights and privacy (including medical records) must be protected; 

► An alleged victim must be allowed to take steps to avoid contact with the accused, such as class schedules or housing reassignments, even if they haven’t pressed criminal charges;

► And that both parties must be allowed to appeal the administration’s decision.

These changes should not be called controversial because — except on college campuses — due process has never been considered controversial in America. It’s one of the basic rights this country was founded on. Sexual harassment is a serious allegation and it deserves a serious investigation. An investigation without due process is not only unserious, it is unfair to everyone involved.

After I was baselessly accused of harassment and robbed of my degree, I sued the university and the state’s Board of Regents in April 2015. Unfortunately, the case was dismissed but the university offered me an agreement that allowed me to finish my degree through online classes only. Though I should have graduated with my class in 2013, I was able to receive my diploma, through the mail, in December 2017. This experience inspired me to continue to follow my legal dreams. usatoday.com-Joseph Roberts

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TRUMP Overhaul of Campus Sex Assault Rules Wins Surprising Support: Feminist Legal Scholars

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TRUMP Overhaul of Campus Sex Assault Rules Wins Surprising Support: Feminist Legal Scholars

The new approach finds unlikely allies among some feminist scholars, who say colleges and universities were failing to sufficiently protect the rights of young men accused of sexual misconduct.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct. The move set off a liberal uproar, denounced by unions representing teachers and college professors, by the National Organization for Women and by an array of Democratic senators. The Trump rules, they said, constitute a radical rollback of protections for victims who seek justice after sexual assaults.

But Ms. DeVos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?”

There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent.

nytimes.com– Michael Powell

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THE NEW Title IX And Its Challengers

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THE NEW Title IX And Its Challengers

The last four years have witnessed a series of desperate attempts to frustrate Education Secretary Betsy DeVos’ goal of creating a fair Title IX adjudication framework to replace the one-sided guidance she inherited from the Obama administration. Now comes the final attempt: four lawsuits to block the regulations, filed by a coalition of blue-state attorneys general; the state of New York; the National Women’s Law Center (NWLC); and the American Civil Liberties Union (ACLU). Along with contemporaneous letters denouncing the regulations from House and Senate Democrats, the complaints provide an unintentional, if depressing, reminder of how one-sided ideas about campus justice first offered during the Obama era continue to dominate the thinking of Democratic officeholders on Title IX.

The regulations themselves address two major areas of concern. The first defines sexual harassment by tethering Education Department policy more closely to the Title IX statute and relevant Supreme Court precedent. The regulations will also provide for a fairer adjudicative process—through cross-examination by an advisor, access for both parties to the evidence compiled by the university investigator, unbiased training for university adjudicators, and presumption of innocence for the accused. Since few, if any, institutions currently ensure that accused students receive each of these protections, these changes are far more consequential.

Incredibly, for some opponents of the regulations, even the presumption of innocence goes too far. To thirty-six Senate Democrats, plus Bernie Sanders, “requiring the schools to presume there was no wrongdoing” meant that “students coming forward will have the impression the school assumes they are not telling the truth.” The NWLC fantastically maintained that a presumption of innocence in Title IX cases was “based in sex discrimination and exacerbates the myth that women and girls often lie about sexual assault.” As a result, its complaint contended, the presumption “tilts the process” in favor of the accused.

Despite the Supreme Court deeming cross-examination the “greatest legal engine ever invented for the discovery of truth,” the Democratic attorneys general cited three articles, two of which involved cross-examination of children, to contend that cross-examination actually leads “to less reliable outcomes.”… It would be extraordinary for a federal court to hold that cross-examination or the presumption of innocence violate Title IX. The clock is ticking: absent judicial intervention, fair procedures will come to campuses nationwide on August 14.

mindingthecampus.org-KC Johnson

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CONTROVERSY & Confusion: NAS Critique of the AAUP Response to the New Title IX Regulations

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CONTROVERSY & Confusion: NAS Critique of the AAUP Response to the New Title IX Regulations

On May 15, the American Association of University Professors (“AAUP”) released its Response to the Final Title IX Regulations issued by the Trump Education Department. Title IX is the federal law banning sex discrimination at schools receiving federal funds; it is an equal access law, originally designed to protect educational opportunity for women. Since its enactment in 1972, however, Title IX discussions have often focused on the law’s application to women’s sports and, now, on its application to campus sexual misconduct.

This latter area has generated considerable controversy – and confusion – in part because of the seriousness of the topic and in part because agency guidance and regulations to implement the law have been both unclear and, at times, overbearing. A prime example was the 2011 Dear Colleague Letter from the Obama Education Department’s Office of Civil Rights  which announced that sexual harassment and sexual violence were forms of sex discrimination prohibited by Title IX. Campus Title IX Offices were then tasked with seeking and punishing such behavior or losing federal funds. This Title IX approach to campus sexual misconduct quickly became unworkable: Institutions receiving federal funds felt pressured to find and punish sexual assailants. Meanwhile, those accused of sexual misconduct often said their due process rights were violated by Title IX Offices when they were denied the presumption of innocence or were not informed of charges against them or were summarily removed from campus without the opportunity to respond.

In September of 2017, Education Secretary Betsy DeVos rescinded the 2011 DCL and, in November of 2018, she proposed new regulations pursuant to the Administrative Procedures Act, which requires time for public comment. The final regulations were issued May 6 of this year and are scheduled to take effect August 14. These final rules are no real surprise: They hew closely to those proposed in 2018 and also follow the last word on Title IX by the United States Supreme Court in the 1999 case of Davis v. Monroe County School Board. This precedent established a clear definition of what types of student-on-student sexual misconduct constitute sex discrimination in education for purposes of Title IX,

www.nas.org/blogs-National Association of Scholars

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