ABOUT New TIX Regs

ACLU’s ‘Death Star’ Client in Its Title IX Lawsuit.

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ACLU’s ‘Death Star’ Client in Its Title IX Lawsuit.

The American Civil Liberties Union has been deservedly criticized for its May 14 lawsuit indirectly attacking the civil liberties of students accused of sexual assault, who have since 2011 been subjected to grotesquely unfair campus proceedings that effectively presume their guilt.

Their lawsuit insists that accused students be found guilty even if the evidence of innocence is almost as strong as the evidence of guilt. It also argues for a far more sweeping definition of sexual harassment than the one in the DeVos regulations (which parallels the definition adopted by the Supreme Court). 

The ACLU filed its complaint on behalf of four organizations: Know Your IX, Council of Parent Attorneys and Advocates Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools. The latter three groups have played a minimal, or nonexistent, role in the contentious debate about due process and campus sexual assault. Know Your IX, however, was dubbed the “death star” by one lawyer who frequently represents accused students. As such, it represents an odd partner to a civil liberties organization. 

Know Your IX was co-founded by Amherst graduate Dana Bolger and Yale graduate Alexandra Brodsky. Co-founder Brodsky unconvincingly maintained that Obama-era policies should be interpreted as favorable to the due process rights of accused students.

The differing approaches the ACLU and Know Your IX took to comments addressing the draft regulations further highlight the awkward alignment between the two organizations. The ACLU, while previewing many of the troubling themes from its later lawsuit, at least accurately described the relevant case law. Know Your IX, by contrast, misrepresented two of the most important federal court wins for accused students, on which the DeVos rules were partly based. In one passage, Know Your IX suggested that the 2018 decision of the Sixth Circuit U.S. Court of Appeals, in Doe v. Baum, did not say what it plainly held: that a public university “must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder” in all cases in which credibility is an issue.

Few, if any, journalists have done better work in detailing the injustices faced by accused college students than Emily Yoffe. Her succession of meticulously accurate and fair articles in Slate, the Atlantic, Politico, and Reason have exposed unfair procedures faced by white and black students, in public and private institutions. Brodsky’s reaction, during her tenure at the helm of Know Your IX? “There is a special place in hell,” she tweeted, “for women who are Emily Yoffe.”

That the ACLU has chosen to team with a group co-founded by such a figure, targeting regulations that advance campus due process more than anything for a generation, speaks volumes of the organization’s decline as a leader in the protection of civil liberties.

realclearpolitics-KC ohnson & Stuart Taylor

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FIRE President Responds To ACLU Lawsuit Against Title IX Reforms

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FIRE President Responds To ACLU Lawsuit Against Title IX Reforms

On May 6, the Department of Education issued new regulations governing the way colleges and universities must address claims of sexual misconduct under Title IX. As part of those regulations, the department mandated that institutions use a speech-protective definition of sexual harassment — one adopted by the Supreme Court in 1999 in a case called Davis v. Monroe County Board of Education (the “Davis standard”). On May 14, the ACLU filed a lawsuit to block the use of that definition of harassment from becoming the department’s official policy. 

I don’t often find it necessary to publicly disagree with the ACLU on a free speech issue. However, the Supreme Court’s Davis standard, which skillfully drew a line between harassment and protected free speech, remains the best bulwark against the creeping reach of speech codes on college campuses. If the ACLU’s lawsuit were to succeed, it would erase one of the biggest victories for campus free speech in decades.

As put forth by the new regulations, the Davis standard defines peer-on-peer harassment as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Following Davis, the Department of Education’s new regulations also prohibit schools from being “’deliberately indifferent’ to sexual misconduct.”

The ACLU’s position is that the Davis standard is insufficiently protective of accusers. FIRE’s position is that anything less is insufficiently protective of speech. In order to understand why the Davis standard is so important to protecting free speech on campus — and why the ACLU’s lawsuit is misguided — one must understand the history of campus speech codes. 

What follows is a history of those codes, how they have been used by the federal government and colleges to censor speech for decades, and why the Davis standard — contrary to the ACLU’s position — is the appropriate antidote. At the end, I will draw some additional conclusions about the ACLU’s position on Title IX and the Davis standard based upon this history, and point out how that position has been inconsistently applied since 2011.

READ: Former ACLU President Strongly Disagrees With ACLU Case Against DeVos

……The ACLU lawsuit against the Department of Education’s Title IX reforms should fail. Indeed, the ACLU should actually be on FIRE’s side in supporting the Davis standard, as it is the most free-speech protective harassment standard currently on offer. However, if the ACLU is not willing to change its position — given the history we discussed, the arguments in the ACLU lawsuit, and David Cole’s response to its critics — I have concluded the following:

1. The ACLU should have joined us in opposing the 2011 “Dear Colleague” letter. 2. The ACLU should have joined us in fighting the 2013 blueprint. 3. The ACLU can still work with us in opposing the blueprint, starting with supporting the expansion of free speech protections in the Higher Education Act (HEA). 5. If a future administration attempts to revert to the standards similar to those in either the 2011 DCL or the 2013 blueprint, we hope to have the ACLU’s support in opposing that erosion of student rights. 

www.thefire.org-Greg Lukianoff

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I’M A DEMOCRAT; Secretary DeVos Is Right on Title IX Reform

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I’M A DEMOCRAT; Secretary DeVos Is Right on Title IX Reform

I am a progressive Democrat and enthusiastic supporter of the new Title IX Rule that was recently issued by Education Secretary Betsy DeVos.

The DeVos Rule provides colleges and universities with a detailed and uniform modus operandi on how they must handle gender discrimination, sexual harassment, and sexual assault disputes.  The new regulations emphasize fairness, equitability, due process protections, and extensive supportive measures for all parties, all of which have been missing from the rescinded Obama-era guidance that the new Rule supersedes.  In contrast, the well-intentioned Obama-era guidance was conspicuously undetailed, constitutionally and legally dubious, and decidedly unfair toward the accused.

I experienced the Obama-era guidance shortcomings in a 2014 Title IX debacle, and the DeVos rule addresses all of them.

Many Democratic leaders have taken a decidedly inconsiderate view toward the Rule by reflexive opposition through jade-colored lenses, but their appraisals make little sense and are inconsistent with the United States Constitution, legal precedent, and core American values.

The melodramatic assertion that the new Rule “flies in the face of common decency to require survivors to endure live hearings with live cross-examination by the perpetrator’s advisor of choice,” ignores the fact that cross-examination in a live hearing setting is a Constitutional requirement to which 150,000,000 other women in this country must abide when making a sexual assault allegation and ignores the fact that cross-examination has long been considered the greatest single legal engine that we have to truth-finding—the aim of any dispute resolution.

Meanwhile, the statement that “it is simply unjustifiable for the Department to require schools to dismiss many complaints of sexual harassment” is absurd.  In fact, the new Rule mandates that a school must robustly address every complaint of sexual harassment but asserts that a school cannot formally investigate a complaint that does not rise to the level of sexual harassment. This is reasonable.

Finally, the use of the term “survivors” or “perpetrators” in context of approaching an investigation is prejudicial and has no place in any system of jurisprudence. It’s just wrong.

realcleareducation.com-Buddy Ullman

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ANALYZING The Department of Education’s Final Title IX Rules On Sexual Misconduct

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ANALYZING The Department of Education’s Final Title IX Rules On Sexual Misconduct

On May 6, 2020, the Department of Education released its long-awaited Title IX rules on sexual harassment. This was the culmination of a process that began nearly three years ago. The regulations were immediately condemned by a number of women’s advocacy groups and by leading Democrats. The rules have already been challenged in court. Federal judges are unlikely to find the regulations “arbitrary and capricious.” Not only was the Education Department’s rulemaking process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago. 

In 1998 and 1999, the Supreme Court handed down two key Title IX decisions that established the context for the current debate: Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. Editorials in the Los Angeles Times and Wall Street Journal have praised the department for “curbing some of the excesses of the previous system” and making “university kangaroo courts a thing of the past.” 

Students and employees accused of misconduct must be presumed innocent until proven guilty. That means not only that schools bear the burden of proof in disciplinary hearings, but also that pre-hearing accommodations cannot place a heavier burden on the respondent than on the complainant. To ensure impartiality, decision-makers cannot be employees of the Title IX coordinator. The materials used to train investigators and decision-makers must be available on the school’s website.

The new regulations  require that all school rules governing sexual harassment proceedings and all the training provided by the Title IX coordinate be “gender neutral,” free of any “sex bias” or “sex stereotyping.” While this might seem obvious, it conflicts with the frequently repeated view that investigators and decision-makers should “believe the victim” and that “trauma-informed” training requires them to disregard inconsistencies in complainants’ stories. According to the new rules, from the outset complainants should not be considered any more credible than respondents. Any investigator or decision-maker who questions this equivalence cannot be considered “impartial.” 

Protecting freedom of speech is a major theme in the Department of Education’s justification for its regulations. The agency claimed that “evidence that broadly and loosely worded anti-harassment policies have infringed upon constitutionally protected speech and academic freedom is widely available.”  To address this problem, the department has attempted to steer a middle path between the Supreme Court’s narrow definition of sexual harassment and the Obama administration’s more expansive understanding. 

The Department of Education deserves credit for going through a transparent, time-consuming, and rigorous rulemaking process and respecting the Supreme Court’s interpretation of Title IX. 

brookings.edu-Shep Melnick

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IX COORDINATOR: Intent Of New Rules Is To Treat Both Sides Equally

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IX COORDINATOR: Intent Of New Rules Is To Treat Both Sides Equally

The Department of Education recently announced sweeping changes to Title IX rules at colleges and universities. Several Central Western University  administrators, including CWU’s IX coordinator and the head of rights and responsibilities, said the changes will give more fairness and equity to the process. Staci Sleigh-Layman, the executive director of Human Resources and the Title IX coordinator at CWU, said rules established during the Obama administration were “victim-centered”, and these new rules aim to treat both sides fairly. “I think the overriding concern in the past has been ‘how do we protect the complainant?’” Sleigh-Layman said. The previous rules were designed to ensure an accuser’s dignity, prevent any retaliatory behavior in their classes and prevent intimidation. Sleigh-Layman said the old rules raised fears of accused students being “railroaded through a system” and not given due process.

“These changes right now are really in response to that concern,” Sleigh-Layman said. “These new changes give a lot of credibility and due process and equal kind of attention to the person accused as well as the person coming forward.” The intent of the new rules is to treat both sides equally. “I think what these rules do now is they try to balance that concern, and so they put in place a process that seeks to provide due process for both sides,” Sleigh-Layman said.

Colleges in the state are also waiting from the Washington State Attorney General’s office on how to proceed. Sleigh-Layman said the hope is these guidelines will hopefully allow the new rules to be implemented uniformly at all universities in the state. The guidelines are expected by the end of June, which will allow CWU to finalize their procedures before the August deadline.

cwuobserver.com-Mitchell Roland

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NEW TITLE IX Regs: When Did Democrats Abandon ‘Presumed Innocence’?

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NEW TITLE IX Regs: When Did Democrats Abandon ‘Presumed Innocence’?

Few principles are more fundamental in the Anglo-American legal tradition than the presumption of innocence. And so it hardly seemed controversial that the new Title IX regulations addressing campus sexual-assault allegations included a provision requiring schools to presume “that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”  Incredibly, 36 Senate Democrats and independent Bernie Sanders signed a letter to Education Secretary Betsy DeVos denouncing the presumption of innocence for students accused in Title IX tribunals. “By requiring the schools to presume there was no wrongdoing,” the senators argued, “students coming forward will have the impression the school assumes they are not telling the truth.”

That 37 senators, including the five most senior Democrats on the Senate Judiciary Committee, misunderstand a core principle of American law is troubling. The presumption of innocence doesn’t create “the impression” that witnesses against the accused are lying. It ensures that the adjudicator—in criminal matters, the state; in the Title IX process, the college or university—has the burden of proof, rather than forcing the accused to prove his innocence. A process without such a presumption is unfair.

A comparable recent letter positioned 105 House Democrats in opposition to another element of fundamental fairness in the Title IX process. The regulations, reflecting recent U.S. Appeals Court decisions in the area, ensure that both accused and accusing students will have a right to cross-examine adverse witnesses. To guard against the possibility of a victim being cross-examined by the person who attacked her, the regulations mandate that a lawyer or advocate for the accuser (or the accused) will conduct the cross-examination of the other party.

Both letters seem chiefly concerned that, unlike the Obama-era guidance they replaced, the regulations give accused students a meaningful chance to defend themselves. Neither the House nor the Senate Democrats mention the need for a fair process or the possibility that accused students might be innocent. To the legislators, the purpose of a Title IX adjudication appears to be less determining the truth of the underlying allegation than ensuring that accusing students are, in the words of the Senate letter, “comfortable.”

realclearpolitics-KC Johnson

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TITLE IX IN COLLEGE ATHLETICS

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TITLE IX IN COLLEGE ATHLETICS

Title IX has been used by alleged victims of sexual misconduct to seek remedies against colleges that don’t take enough action against persons accused of the misconduct.  New Title IX regulations have provided more due process protections to students accused of sexual misconduct and imposed a higher definition of what constitutes sexual harassment.

Under the new regulations, coaches and athletic trainers are not obligated under Title IX to report suspected incidents to the Title IX coordinator. The reason for the change is that the federal Department of Education believes this respects the autonomy of students to choose whether they want to tell a school employee for the purpose of making a Title IX report or for another reason, such as “receiving emotional support without desiring to ‘officially’ report.”

However, a new NCAA policy beginning in the 2021-2022 school year requires athletes themselves to annually disclose acts of violence that resulted in an investigation, discipline through a Title IX proceeding, or criminal conviction. This requirement applies to both new recruits and transfer students. Students must report even investigations that did not result in convictions. Per the NCAA, schools must adopt written policies directing staff to gather that information from the previous institutions of recruits and transfer athletes. 

A number of colleges have gone a step further and adopted the so-called “Tracy Rule.” This rule prohibits student athletes from practicing, participating in sports, or receiving financial aid if they have any incidents or history of actual or even accused misconduct, whether sexual assault, violence, or otherwise. 

A finding of liability, even if later overturned, can have a devastating effect on an athletic career. In one case at Michigan State University, a student athlete was cleared of a Title IX claim while an undergraduate, only to have the result reversed in a reinvestigation initiated by the accuser when the athlete was a part-time graduate student. He never even received notice of the reinvestigation.

As a result, he was immediately cut by the NFL’s Houston Texans from its roster and he remains out of employment with any NFL team. While the athlete settled with Michigan State which admitted it was wrong, the conviction cost him his career as a professional athlete. The Tracy Rule would require a similar result for college athletes.

nmllplaw.com/blog

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THE ACLU Sells Its Soul. Abandons Civil Liberties To Sue Betsy DeVos, Due Process

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THE ACLU Sells Its Soul. Abandons Civil Liberties To Sue Betsy DeVos, Due Process

The American Civil Liberties Union has abandoned its mission of defending liberty. It once fought for free speech, for everyone, even neo-Nazis, on the principle that if one person’s civil liberties are in danger, then everyone’s are. The organization used to stand up for the rights of the accused, including the right to the presumption of innocence, even when others used emotion to argue that the guilty have no rights.

Now, the ACLU has descended into political hackery. The organization just sued Education Secretary Betsy DeVos in an attempt to block her department’s efforts to restore due process for those accused of sexual assault on college campuses.

On May 6, DeVos introduced the new rules regarding Title IX and how federally funded colleges and universities must adjudicate sexual assault accusations. DeVos’s new Title IX regulations, which take effect in August, represent an important step toward restoring both fairness for victims and due process for the accused in campus proceedings. She would ensure that all accused students have the right to cross-examine their accusers through an intermediary. After all, the right of the accused to scrutinize and disprove allegations against himself is a central pillar of any fair justice system and plays an important role in the Bill of Rights that the ACLU used to defend.

READ: Former ACLU Pres. Strongly Disagrees w ACLU Case Against DeVos

This whole backlash is baseless. The ACLU should be singing DeVos’s praises for upholding due process and the rights of the accused — a mainstay of historical ACLU principles.The organization once fought for the rights of accused criminals to a fair process. It was not anti-victim when the ACLU fought for accused criminals to have the right to an attorney, a fair trial, and the right to cross-examine their accuser. In like manner, DeVos and her colleagues are right to demand exactly the same rights for men accused of rape on college campuses.

washingtonexaminer-Opinion by Polumbo

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BETSY DeVos Upholds Basic Constitutional Rights In Title IX Rule

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BETSY DeVos Upholds Basic Constitutional Rights In Title IX Rule

U.S. Education Secretary Betsy DeVos last month  released the department’s final reforms governing campus sexual misconduct investigations. The revisions have been years in the making, and they are arguably the most important, and lasting, mark of DeVos’ tenure. 

Upon release, DeVos clearly explained the rationale behind the new rule: “Today, we announce a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.”That’s what these reforms are all about. Despite the hysterical and predictable response from DeVos’ detractors, the changes to these guidelines are not rooted in politics. Rather, they seek to uphold these basic constitutional rights on college campuses. 

And it’s not just the Education Department pushing for these changes. The courts have also started demanding it, as more students accused of wrongdoing (usually young men) sued their universities after they got kicked off campus without getting a fair hearing. “This new Title IX regulation reflects Secretary DeVos’ commitment to ensuring that every survivor’s claim of sexual misconduct is taken seriously, and every person accused knows that guilt is not predetermined,” the department stated. 

A few key provisions in the new rule:

►It defines sexual harassment “to include sexual assault, dating violence, domestic violence and stalking as unlawful discrimination on the basis of sex.”

►It provides a “consistent, legally sound framework on which survivors, the accused and schools can rely.”

►It holds colleges “responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities.”

►It upholds all “students’ right to written notice of allegations, the right to an adviser, and the right to submit cross-examine and challenge evidence at a live hearing.”

►It requires schools to “select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard — and to apply the selected standard evenly to proceedings for all students and employees, including faculty.”

detroitnews.com-Editorial 

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TITLE IX Coordinator Melinda Stoops Tells How BC Will Avoid New Title IX Regs: ‘Re-Classify’

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TITLE IX Coordinator Melinda Stoops Tells How BC Will Avoid New Title IX Regs: ‘Re-Classify’

Boston College has spent millions of dollars defending against a single lawsuit by an accused student who claims it violated his due process. It’s appealing a jury award of more than $100,000 to “John Doe,” and yet a federal appeals court already ruled against the Jesuit institution once.

With the college facing new federal rules on how it must conduct sexual misconduct investigations, a Title IX official gave a curious interview to campus newspaper The Heights about how it will respond. Now that students accused of sexual misconduct must be given a live hearing with cross-examination, Title IX coordinator Melinda Stoops suggested the college can simply reclassify alleged violations under a different part of its code than Title IX.

Behavior that previously would have been covered under Title IX policy may now be investigated through the Office of Student Conduct, Stoops said.

The new rules from the Department of Education, which are scheduled to take effect in late summer, removed the responsibility of colleges to investigate incidents out of their “control,” meaning off-campus in activities and programs unrelated to the college. They also define sexual harassment by the Supreme Court’s three-part standard for educational settings: “severe, pervasive and objectively offensive.” That provision is expected to make it difficult for colleges to investigate fleeting speech-related claims, such as sex jokes.

thecollegefix-Greg Piper

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