At oral argument in Doe v. University of Sciences before the Third Circuit, an issue that gets only tangential consideration was front and center: Can the schools using the “single investigator” model for Title IX sexual determinations suffice as a fundamentally fair method? KC Johnson provides the background to the case… In the Sciences case, two sorority sisters filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

From the outset, the deck is stacked. It doesn’t have to be, but consider the qualifications of people who seek the job of Title IX investigator. They tend to be people deeply involved with and sensitive to sexual misconduct against women on campus, usually with long histories of activism and proven dedication to the elimination of sexual misconduct against women. Their perception of the problem that guides their investigation is grounded in an ideological belief that precludes any fair assessment of the facts. They are dedicated to finding the facts, aggregating and presenting them in such a way as to assure the only “correct” outcome: guilt. These Title IX investigators interview the accuser and accused, together with those witnesses they deem relevant. They gather evidence they deem relevant. They pursue avenues they deem relevant. If they deem only that which proves guilt to be relevant, then they ignore witnesses and evidence that don’t. It’s left entirely in their hands. When the only evidence presented is evidence of guilt, the outcome isn’t a mystery. When the entirety of a process is placed in the hands of one person, who then presents conclusions based only on the evidence that supports the conclusion and omits all the evidence that shows it to be baseless or biased, it easily creates the appearance of fairness without any of the substance. Add to this the sort of person hired to play the role of Title IX investigator and the problem is abundantly clear.

While most arguments about the single investigator model tend to revolve around the mandates of due process and fundamental fairness, whether under the Constitution, or express or implied contractual terms, few cases directly confront the inherent impropriety of making one individual “judge, jury and executioner.” There should be no question that the inquisitorial model, no matter how one characterizes the virtues of the inquisitor, invariably fails to provide the accused with a fair process. 

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The federal Office of Management and Budget has officially concluded its review of the draft Title IX regulations, reports SAVE. Readers should be aware that over the years, SAVE has been hard at work developing plans to support implementation of the new regulations.  SAVE created new pages on their website supporting these efforts, and accused students will find helpful information at this page: Lawsuits by accused students.

And from Title IX For All: “We have recently learned that Betsy DeVos’ long-anticipated Title IX regulations have cleared the Office of Management and Budget, meaning virtually nothing is standing in the way of their publication.”

Title IX For All also reports: “We can now confirm that over six hundred lawsuits have been filed in behalf of students (and some school personnel) accused of Title IX-related offenses. 

Nearly half of all the lawsuits in our tally – 47.5% – have been filed in a mere five states: California (18%), New York (12%), Ohio (7.5%), Pennsylvania (5.5%), and Massachusetts (4.5%). The UC and CSU systems in particular have been pummeled by a high amount of litigation via writs of mandate, while in New York the SUNY system, Columbia, and Cornell, among others, have faced a disproportionate number of lawsuits.

Two litigation powerhouses – Andrew Miltenberg and his team at Nesenoff & Miltenberg and Mark Hathaway and Jenna Parker of Hathaway Parker – have litigated ~25% of the total number of lawsuits. The rest have been litigated by a spread of 610 attorneys representing plaintiffs and 744 attorneys representing schools and school personnel. Regarding court and judge data, we have seen litigation in 192 courts (86 federal courts and 106 state courts), with 622 judges (429 male and 193 female) presiding over litigation.

On average, 120 lawsuits have been filed each year from 2017-2019. We have seen an anticipated decline in recent filings due to COVID-19. With the imminent publication of DeVos’ Title IX regulations, however, we believe the 2021 spring semester will start a new, steeper ramp upward that will exceed the 2017-2019 yearly averages in terms of lawsuit filings.

A BIG thank you to Title IX For All and SAVE- Stop Abusive and Violent Environments- for their dedicated and impactful work,  Alice. 

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What do you do when ASU Professor Sarah Viren is about to land your dream job teaching creative writing at the University of Michigan? If you’re a gay Professor living in Texas, (the villain of a terrific, horrifying story in the New York Times) you file a series of anonymous, false sexual misconduct allegations against Sarah Viren and her wife, Marta Tecedor, a pair of professors at Arizona State University. And then you trust that Title IX’s byzantine investigative process and the accompanying rumors will sabotage their career and make you the next job candidate in line.

SOS readers are aware that many Title IX accusations made against college males are misguided, false and outright lies. So it is not surprising to learn that the serial accusations made against Sarah and Marta are also outright lies… “Sarah and Marta had never done any of the things they were accused of doing, but the emails were authored under fake names, and it was thus extremely exhausting for them to prove their innocence. Moreover, the Title IX investigator, Melanie, was only tangentially interested in whether the accusations were false.” Melanie said, “If we find out that the information is false, for our purposes that’s not really our end goal; we’re just trying to determine whether or not there’s a policy violation.” 

In the end, Sarah and Marta had to do much of the detective work themselves, finally deducing J.’s (gay Prof.) identity and building a convincing enough case that they were found not responsible for violating Title IX. By then, however, it was too late, and the pair lost out on their dream move to Michigan. 

From the NY Times Sarah writes “In the case of our story, I quickly realized that we would never persuade anyone of what we knew to be true, that the accusations were invented…As Melanie explained during that first interview, her investigation would end with what is called a “determination letter.” And that letter could offer only two story lines: Either Marta had violated a policy – or there was “insufficient evidence” that Marta had violated a policy, and we could presumably go back to the way things were before.” “For us this is purely administrative.” In other words, Title IX investigations are not criminal, even if they feel that way. This is why Marta wasn’t allowed to have a lawyer present during her interview, even as she was told that any of her answers could be used against her. And it’s the reason that even if we could prove that someone was targeting Marta, Melanie could never compel that person to talk to her if they weren’t part of our university. But also, that person would never face consequences for what they were doing. The only way to accomplish that, a defamation lawyer told us, was if we pursued that person ourselves…At the end of July, we settled our lawsuit. Per that agreement, we can write or say anything we want about what happened. We can tell the whole story, using any and all of the facts. But we made one major concession: We cannot use J.’s real name. At the time, the concession seemed worth it if it meant ending a story we needed to stop. But in the weeks and months since, I’ve wondered if we made a mistake. 

 Robby Soave has written numerous stories about students, administrators, and professors using the Title IX process to exact vengeance on their enemies. Take the most recent cases of University of New Mexico Professor Nick Flor, or former Michigan State medical student Dev.

The ordeals suffered by academics and students are just part of the reason that Education Secretary Betsy DeVos was absolutely right to revise the federal government’s Title IX guidance to colleges and universities.

Read Robby Soave’s in depth story about Sarah and Marta. A Crazed Academic Weaponized Title IX Against a Rival Professor Whose Job He Wanted.

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