TITLE IX Lawsuits

College kids who are Title IX falsely accused (mostly males) and are fighting back by suing their college for denying due process, breach of contract, discrimination etc. Some wins, some losses.

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

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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

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

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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

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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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‘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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SHE ACCUSED Him Of Sex Assault Even Though HE Was Too Incapacitated To Consent. He Was Expelled.

John Doe at Embry-Riddle Aeronautical University (ERAU) is suing after the school expelled him for sexual misconduct even after evidence was presented that showed he was the victim. Doe says in his lawsuit that he informed ERAU that he was too intoxicated to engage in sexual activity and witness statements back him up, yet the school relied on antiquated gender stereotypes about male sexuality to say his claim wasn’t credible.

The lawsuit stems from an encounter between John and Jane in October 2019, following a Halloween party. Prior to the party, John and Jane exchanged text messages for weeks and had gone on several dates. John says he had about 15 alcoholic drinks the night of the incident, and witnesses stated he was “drunk” while others said Jane appeared fine.  The two ended up in John’s room and Jane initiated the sexual activity by saying she wanted to kiss him. The two engaged in oral sex and Jane allegedly told John she wanted intercourse. Throughout all of this, John claims Jane never received affirmative consent from him because he was too intoxicated to have given it, according to ERAU’s Sexual Misconduct Policy…In the morning, she overheard John and another student talking about a woman who engaged in sexual activity at the party. John says in his lawsuit that he believes Jane thought she was the one being discussed and didn’t want to be talked about this way. In November 2019,  John was told a sexual assault complaint had been lodged against him, and that Jane claimed she was too drunk to consent. When John said that, in fact, he was too drunk to consent, the Title IX Coordinator dismissed his claim, actually suggesting that John wouldn’t have been able to maintain an erection if he were truly intoxicated.

A witness, JD, who said he was a “really close friend” of Jane and a friend of John’s, provided a sworn statement that was given to ERAU.  JD said Jane told him she consented to kissing and oral sex. “I feel, like, she’s doing all this because of what she heard that morning thinking that it had to do with her…ultimately, she was okay with them having sex and the only reason she even went as far as she did, as far as calling it rape, was because she didn’t want to be a rumor that somebody had sex with [John Doe]…It just spiraled into this snowball effect and now she has to run with it.”

JD also said Jane told him she consented to kissing and oral sex. Another witness, AC, said in a sworn statement (that was also provided to ERAU) that indicated Jane was “fine” during the party. Another witness, RT, describe Jane as consenting to everything that happened. John was immediately suspended from his athletic team. Jane was not, despite John’s own credible allegation that he was too intoxicated to consent per school policy. John says in his lawsuit that he was told by the Title IX investigator not to file a complaint that he was the victim because ERAU would see it as retaliation against Jane. 

In December 2019, John and Jane met with the ERAU chaplain to reach an informal resolution. The process was supposed to be confidential, but John alleges Jane falsely claimed to the Title IX Coordinator that John admitted to raping her. John says he did no such thing. John was informed in January 2020, that Jane wanted to launch a formal investigation against John. When John tried to point out inconsistencies in Jane’s claims while looking over the investigative report he was told he didn’t have to point them out because they were already marked down. Another witness, MD, provided a statement to ERAU saying Jane’s actions in the weeks after the sexual encounter undermined her credibility, yet the school investigator didn’t include this information in the final report.

In March 2020, John was found responsible for sexual misconduct. They deemed Jane “credible,” according to John’s lawsuit, “based on a subjective assessment of Jane Roe’s conduct after engaging in sexual activity with John Doe, including the observation that Jane Roe ‘was angry with [John Doe]…’” They found John had a “lack of credibility,” according to his lawsuit, “based on subjective factors including observations that John Doe ‘appeared more concerned about his own well-being that what [Jane Roe] was going through.’”

John was never allowed to question Jane.

In March 2020, John was found responsible for sexual misconduct. He appealed. John was again found responsible in a letter that read almost exactly as the original finding of responsibility. John is now suing for breach of contract and Title IX violations, requesting economic and emotional damages in excess of $75,000.

dailywire.com-Ashe Schow

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FALSE ACCUSER Lauren Pearson Charged. Male Sues CorkerU, Hartsville, Police, Over Female’s False Accusation

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FALSE ACCUSER Lauren Pearson Charged. Male Sues CorkerU, Hartsville, Police, Over Female’s False Accusation

A former student has filed suit against Coker University and the city of Hartsville after he was temporarily withdrawn from the university and arrested following a false rape allegation by Lauren Pearson.

An attorney for the male student filed multiple suits against the city of Hartsville, its police department, three officers, Corker University and several individuals. The attorneys argue that the university discriminated against their male client by charging him with a violation of Title IX, but not doing the same when Lauren’s allegations proved false. Reaching an erroneous outcome in its decision to withdraw the accused male before an investigation, and that the university breached its contract by not following the procedures outlined in its handbook regarding sexual assault, administrative withdrawals, and Title IX violations. Attorney’s for the male student, Cesar Lopez, argue that his Fourth Amendment, Eighth Amendment, due process, and equal protection rights were violated by the city and the individuals in several counts of claims, that he was falsely imprisoned, and that the city and its police department were negligent in supervising its police officers. Lopez’ allegations stem from a false rape accusation made by Lauren Pearson in late April 2018. 

At the time of Pearson’s false rape accusation, Lopez, was a sophomore on the Coker soccer team receiving an academic scholarship. The encounter between Pearson and Lopez occurred at Corker University in April, 2018. Afterwards, Pearson claimed she was raped to law enforcement officials from the city of Hartsville.  Lopez was then warrantlessly arrested by the Hartsville Police Department. Lopez’ complaint against Corker university states that the arrest was made prior to the case being assigned to a detective for investigation and prior to any interviews of witnesses. The complaint against Hartsville city alleges that Lauren Pearson did not respond to police calls for two days after her report but submitted to a polygraph test on May 2. Pearson attended a meeting on May 3rd in which she was charged.

Lauren Pearson’s accusation of rape fell apart during the week of April 30th. According to Lopez’ amended complaint against the university, Pearson accused two male students of rape the previous semester. Pearson was seeing a male named “A.E.” in 2017.  After A.E. ended their relationship, Pearson had a relationship with a different male. She then informed A.E. that the other male raped her. A.E. confronted the male and learned that the accusation was false. Pearson then sent a message to A.E. through a friend that she had made up the accusation against the other male. Pearson reunited with A.E., but then he ended their association for good. Pearson accused A.E. of raping her. Cesar Lopez’ amended complaint notes that A.E. received a no-contact order and his claims that the accusation was false were not investigated despite Coker university policy and Title IX requirements.

The complaint against the city alleges that Lopez informed the officer that Pearson had made false accusations against A.E. The officer ignored this report and the inconsistencies and instead arrested Lopez. The detective assigned to investigate the case spoke with A.E., who provided evidence of Pearson’s previous false accusations.

Lauren Pearson was arrested on May 4, 2018, and charged with filing a false report. Filing a false police report accusing someone else of a felony is a felony and carries a penalty of not more than five years in prison and not more than a $1,000 fine, or both.

The amended complaint filed against Corker University indicates that Pearson was administratively withdrawn from the university following her arrest. After Pearson was withdrawn, Lopez was reinstated to the university. The amended complaint against the university indicates that this was two days after the university learned the allegations were false. Cesar Lopez was cleared of the alleged Title IX violation a week later, according to the amended complaint.

www.scnow.com-Matthew Christian

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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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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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