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SUSPENDED FOOTBALL Player Files Suit Against LSU For ‘Biased, Flawed & Unlawful Process”

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SUSPENDED FOOTBALL Player Files Suit Against LSU For ‘Biased, Flawed & Unlawful Process”

An LSU football player [falsely] suspended for a Title IX violation filed a lawsuit in U.S. District Court, alleging it made an “unjust and discriminatory decision… following a biased, flawed, confusing and unlawful process.”

According to the complaint, the suspended LSU football player met a female student at a bar near campus. He asked her if she wanted to have sex and she agreed. Afterward, he accompanied her to her dorm, where the two parted ways. Later the male was found responsible for a Title IX violation, which alleges that he engaged in nonconsensual sexual intercourse with a female LSU student. LSU suspended the football player for a year.

Attorneys for the suspended football player say LSU did not provide him an opportunity to have a hearing or review evidence or witnesses against him before concluding its investigation. “LSU has a very confusing policy where you have to jump through a number of hoops before you’re even allowed for a hearing,” said his attorney Susan Stone. “If they find you responsible, then you get an appeal process, and only then, when two, three different layers find you responsible, do you have a hearing. So you’re already stigmatized as being responsible before you’ve had an opportunity to confront or cross-examine your accuser. How is that fair?”

“We really made an extensive and earnest effort to try avoid having to file a lawsuit,” said Kristina Supler, one of the player’s attorneys. “However, LSU gave us no choice by denying the process that was due to our client and demonstrating an unwillingness to reach any sort of mutually agreeable path forward. LSU had a variety of sanctions that could have been identified. Without affording the full process allowed for our client to say, ‘I didn’t do this,’ the sanction was imposed to suspend him for a year.

“It is a very, very harsh sanction, with not only academic implications, but also the impact on a promising athletic career as well.” “This type of finding will follow you,” Stone said. “Basically, without due process, his career has been destroyed.”

espn.com-Adam Rittenberg

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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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BAD VIBRATIONS: The Lies Universities Tell Their Students about Sex

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BAD VIBRATIONS: The Lies Universities Tell Their Students about Sex

Universities today bombard students with two contradictory messages about sex, effectively encouraging them to carry a dildo in their pocket, while lugging a fainting couch behind them. On the one hand, universities have returned to a quasi-Victorian concern with the unique fragility and vulnerability of college women in matters of sex. On the other side of the campus sex ledger is the dildo raffle. At “Sex Week” festivities and other gatherings nationwide, colleges and universities actively promote sexual libertinism. 

Most universities today define sexual assault differently from how it’s specified in law. Colleges now define “sexual assault” so it includes lawful conduct that couldn’t be prosecuted under the criminal law in any state—whether red, blue, or purple. It includes missteps that, in years past, would likely have been considered just messy, “live and learn” encounters between inexperienced (and often inebriated) young people. When pressed, campus administrators justify their new definitions of sexual assault by asserting the right of educational institutions to teach “new values” to the student body. While some judge this an unqualified good, the reality is more complicated.

The redefinition of sexual misconduct, and its enhanced policing by campus administrators, frequently has catastrophic consequences. Students are coming of age in a climate that seeks both to outdo the sexual experimentation of the 1970s and to impose an atmosphere of neo-Victorian surveillance. Campus investigators interrogate inexperienced students not only about whether they had consent for sex, but how they knew they had affirmative consent for each separate act of physical intimacy—each touch, each kiss, each penetration, and each position assumed while performing the latter.

Students—particularly those who are socially awkward, sexually inexperienced, or have conditions that impair their understanding of subtle social cues—are routinely punished for conduct they genuinely believed was consensual, but that transgresses new campus rules. This has led to a wave of litigation by students who allege they were wrongly accused: since 2011, more than 600 such lawsuits have been filed. At the same time, female students—although not exclusively—are advised that encounters they may initially perceive as regrettable but consensual were, in fact, non-consensual “sexual violence.”

This has important psychological ramifications, explains social psychologist Pamela Paresky: “The ability to make choices is how we know we are free, and no free person gets through life without making choices that in hindsight they would make differently. Knowing the difference between making choices and being forced to do things against our will is essential, not only to learning from our mistakes but maintaining psychological integrity and being truly free.” The campus courts occasioned by this movement have also led to systemic violations of accused students’ due process rights, undermining the integrity of the whole project. Victims can find their cases overturned either on appeal or by a court when the accused sues the university over procedural violations.

All of this sends today’s students a message that is, to put it mildly, mixed: you should enthusiastically embrace sexual freedom and experimentation—but make one misstep, even unintentionally, and you will be branded for life as either a sexual predator or trauma victim. This pathologizes the awkward, messy, unavoidably emotional landscape of youthful sexuality.

Universities are free to promote sexual experimentation. But they should be honest that pushing norms and boundaries involves making mistakes. It’s the nature of experimentation that there will inevitably be regrets with something so intimate and personal as sex. This, however, should not be quasi-criminalized.

quillette.com– Samantha Harris & Michael Thad Allen

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USC MATT Boermeester, Wins in Court. He Was Expelled After An Unethical TitleIX Investigation.

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USC MATT Boermeester, Wins in Court. He Was Expelled After An Unethical TitleIX Investigation.

The 2017 expulsion of former University of Southern California (USC) football player Matt Boermeester for intimate partner violence was so blatantly unfair that Education Secretary Betsy DeVos cited the case as an argument for revising federal guidance on campus sexual assault adjudication. (DeVos’s new rules, which restore some due process protections to students accused of misconduct, will take effect in the fall.)

After three years, Boermeester has won an: an appeals court reversed his utterly unjust expulsion in a ruling last week.

“After having three years of my life derailed, I’m gratified that the California Court of Appeals finally reversed my expulsion based on USC’s wrongful, male-biased, witch hunt brought against me,” said Boermeester. “Make no mistake, USC stripped away my educational opportunities and hopes and dreams of playing in the NFL, and this ‘win’ does not erase that.”

Boermeester does not exaggerate the failings of the process by which he was deemed responsible for sexual misconduct. The underlying incident involved some public roughhousing between Boermeester and his girlfriend, Zoe Katz. A neighbor saw the interaction, thought it was a fight, and informed a USC coach who then reported it to the Title IX office. USC then initiated an investigation despite the protestations of the alleged victim—Katz—who maintained that she had “never been abused, assaulted, or otherwise mistreated by Matt.” Katz told the Title IX officials in no uncertain terms that the investigation was baseless: In response, they wrote her off as a battered woman who was too afraid to tell the truth about her abuser. Boermeester wasn’t given the opportunity to defend himself—USC deemed him guilty without so much as a hearing. 

“The California Court of Appeal’s decision, finding that USC violated Matt Boermeester’s right to basic fairness, is a great initial victory,” said Andrew Miltenberg, an attorney for Boermeester. “We will not rest until Matt Boermeester’s name is cleared and USC answers for their blatant misconduct.”

Boermeester is also pursuing a federal lawsuit against USC alleging breach of contract, infliction of emotional distress, negligence, and selective enforcement of Title IX, the federal law that prohibits sex-based discrimination in education and compels schools to investigate sexual misconduct.

reason.com-Robby Soave

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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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ANALYSIS: Title IX Lawsuits Have Skyrocketed Since 2013

Dive Brief:

  • The number of students who have sued colleges and universities for potentially botching sexual violence cases has exploded in recent years, according to a new analysis. 
  • The report, published recently in the New York University Journal of Legislation and Public Policy, shows that federal and state courts have sided with institutions across the U.S. a little less than half the time in cases that yielded “substantive decisions.”
  • The legal landscape around Title IX may be shifting more as the U.S. Department of Education released its regulations around the federal sex discrimination law. 

Dive Insight:

For the last several years, backlash has intensified over guidance the Obama-era Education Department released in 2011 dictating how colleges and universities should adjudicate sexual assault and harassment cases. While the new 2020 regulations will provide uniform expectations on Title IX for all colleges and universities that accept federal funding, court actions have significantly affected how administrators handle sexual assault cases. 

The report notes how much more frequently students and others are pursuing Title IX lawsuits. In the 21 months following the release of Obama’s 2011 guidance, only seven federal lawsuits were filed. In 2013, seven more complaints were filed. But in 2014, the number of lawsuits filed climbed to 25, with 45 more coming in 2015; 47 in 2016; 78 in 2017 and another 78 in 2018.

When students file these lawsuits, they are usually alleging institutions have violated one or more of three areas: due process rights under the 14th Amendment, breaches of contract with a student (such as officials not following codes of conduct) or infringement of Title IX in that administrators were biased when adjudicating a case based on sex. The judiciary has needed to intervene more because colleges are not properly equipped to address these cases.

educationdive.com-Jeremy Bauer-Wolf

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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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GOOD NEWS: 7th Circuit’s Purdue Ruling Impacting Other Title IX Lawsuits

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GOOD NEWS: 7th Circuit’s Purdue Ruling Impacting Other Title IX Lawsuits

The case against Purdue University brought by a male student who was expelled and lost his Navy ROTC scholarship after the school determined he had sexually assaulted a female student has survived a second motion to dismiss. John Doe, the male student filed the lawsuit in 2017. He claimed Purdue violated his due process rights under the 14th Amendment and violated Title IX of the Education Amendments of 1972 by reaching the “erroneous outcome,” solely because of his gender, that he had sexually assaulted his former girlfriend.

Along with Purdue University, the plaintiff included Purdue President Mitch Daniels, vice president of ethics and compliance Alysa Christmas Rollock, dean of students Katherine Sermersheim and the Purdue board of trustees as defendants. They successfully petitioned for the case to be dismissed, but the decision from the U.S. District Court for the Northern District of Indiana was overturned in June 2019 by the 7th Circuit Court of Appeals. In its ruling in John Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), the Chicago appellate court rejected the formulas other circuit courts used to evaluate Title IX claims and offered its own method.

The 7th Circuit’s opinion helped Doe overcome the motion to dismiss on remand and has enabled another male student, also identified as John Doe, to keep his own lawsuit alive against Purdue. In addition, a May 29 opinion from the 3rd Circuit Court of Appeals used the 7th Circuit’s evaluation process in a similar Title IX lawsuit lodged by a male student. This is the first appellate court to adopt the Chicago panel’s method, according to Brooklyn College history professor KC Johnson, who has studied and tracked Title IX lawsuits filed against institutions of higher education.

In using the 7th Circuit’s “straightforward pleading standard,” the 3rd Circuit panel said the standard “hews most closely to the test of Title IX.” Doe’s case was the first such Title IX lawsuit to reach the 7th Circuit. Complaints have been filed against colleges and universities across the United States primarily by male students claiming their schools found them guilty of sexual misconduct without giving them any chance to review the evidence or rebut the witnesses.

theindianalawyer.com-Marilyn Odendahl

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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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