Official: MSU’s new Title IX hearings won’t put victims face-to-face with abusers

constitution, Due Process, Equal Opportunity, title IX

EAST LANSING — Michigan State University’s new Title IX hearings will not put people face-to-face with their alleged abusers, according to the interim head of the office that oversees the process.

“Nobody’s actually going to have to confront the person through the cross-examination,” Rob Kent said in a phone interview Wednesday afternoon.

Kent, the university’s interim vice president of the Office for Civil Rights and Title IX Education and Compliance, said the hearings will take place electronically. He added that representatives, rather than the people directly involved in the complaints, will pose questions.

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The new hearing process is the result of a 2018 federal ruling in a case involving the University of Michigan that affirmed the right of students accused of violating university rules to use cross-examination in a live hearing.

Kent said hearings under the new process will begin next month as the university brings in administrative law judges from the Michigan Office of Administrative Hearings and Rules to serve as resolution officers. That office is part of the state’s Department of Licensing and Regulatory Affairs.  For the full story, click here …

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Students at UNC schools accused of sexual assault would get Title IX like protection under new law – including protection under a higher evidentiary standard

Due Process, title IX

RALEIGH — A bill introduced by a North Carolina lawmaker on Thursday would add legal protections for UNC system students who are accused of sexual misconduct. It also would standardize disciplinary proceedings for students at all 16 university campuses.

House Bill 305, introduced by Rep. Mitchell Setzer, a Catawba County Republican, would provide due process guarantees that don’t exist now for students accused of sexual misconduct.

Setzer did not immediately respond to requests to discuss the bill or what prompted him to introduce it. Co-sponsors Jason Saine, R-Lincoln, and Pat McElraft, R-Carteret, also could not not immediately be reached.

The UNC Board of Governors, which would have to adopt new rules under the law, did not wish to comment on it.

The law would require the Board of Governors to adopt mandatory, systemwide policies to ensure:

• Students are promptly notified when accused of sexual misconduct, including details of allegations, alleged violations of the Student Code of Conduct and copies of evidence against them. Students must be told of their right to consult an attorney and to have one accompany them through the process, and of their right to appeal findings of misconduct.

• Parties to an investigation are allowed to question and cross-examine witnesses.

• The investigation and any hearing must be impartial, and the person who investigates the allegations cannot also be the finder of fact at the subsequent hearing.

• Findings from the investigation and hearing must be written and provided to both the complainant and the accused to allow for review on appeal.

• The standard of proof will be “clear and convincing evidence,” a higher standard than is now applied.

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The bill also would require all UNC schools to set policies governing student conduct and due process proceedings against students accused of violating the policies. Each school would have a code of conduct so that students would know what is expected of them and what conduct would be subject to discipline, as well as the range of disciplinary measures that might be used in case of violations.

It would limit the use of mandatory suspension or expulsion for violations unless otherwise allowed by state or federal law, and it would limit the use of long-term suspension or expulsion to “serious violations” of the code of conduct. A serious violation would be one that threatens the future safety of students, staff or school visitors, or threatens to disrupt the educational environment.

In addition, it would allow students accused of violations to have an attorney or advocate present through any hearing or other procedure, except in the case of a student accused of academic dishonesty.

Under the proposed law, student organizations charged with violations of the conduct rules also would be allowed to have an attorney or advocate present through any proceedings.

E. Lee Turner, a Raleigh lawyer who said he has represented N.C. State University Students accused of misconduct for 20 years, was not involved in the drafting of the legislation and said that most of what it spells out already is in place at NCSU. He said he was not aware of how other UNC schools operate, but thought it would be a good idea to bring uniformity to the system.

Turner said two provisions of the proposed law are especially good ideas: allowing the direct questioning of an accuser when sexual misconduct is alleged, and raising the standard of proof from “a preponderance of the evidence” to “not less than clear and convincing evidence.”

In the past, Turner said, any questions to be asked of an accuser had to be screened by the person conducting the hearing, and that person could disallow any question they deemed inappropriate.

Turner said he has been involved in cases where the accuser was not even present for the proceedings.

“So they don’t get to directly confront their accuser for something as serious as an alleged sexual assault,” Turner said. “And there are ripple effects. The student can be expelled. This can show up on their transcript. There may never be any criminal charge taken out, but the school can proceed on their own and it can be catastrophic at times. So I would be glad to see that a student would be able to question accusers and witnesses.”

Gene Riddle, whose Raleigh law firm represents victims of sexual assault, said he also was unaware of the history of the bill but after reading it, said the due process guarantees would be a good addition.

“Any time you give an attorney the right to question witnesses who have accused another party, I think that’s a good process,” Riddle said. “That’s part of due process. Our country is founded on due process.”

Riddle said the test of any law is how it’s interpreted and applied once it’s approved.

Writers of the bill want it to take effect Oct. 1.

Ruling affirming the rights of students accused of sexual misconduct roils California colleges

constitution, Due Process, title IX

Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.

The decision last month came in a USC case but applies to all California public and private colleges, and prompted many to immediately halt Title IX investigations while they reshape their procedures. California State University, the University of California and USC, Claremont McKenna and Occidental colleges confirmed that they have made or soon will be making changes.  For the full article, click here… 

What​ is the role of labor unions in light of the sweeping Dept. of Education Title IX changes?

Labor Relations, title IX

There is a looming and unprecedented legal issue on the horizon for thousands of public colleges and universities nationwide. This issue represents the evolution and eventual collision of years of legal jurisprudence involving collective bargaining rights and the evidentiary standard of review during a Title IX sexual assault investigation.  

Simply put, in light of the sweeping Dept. of Education Title IX policy changes set to become law in 2019, should labor unions have a voice in which standard of review colleges choose?

Ostensibly, there might not appear to be a close or apparent relationship between Title IX and public institution collective bargaining agreements.  To be sure, Title IX involves in large part students’ gender equity and their safety from sexual harassment on a college campus.  Unionized public employees, on the other hand, employed on a college campus who may become victims of sexual harassment by a fellow employee or university student enjoys the expansive protections of Title VII, state laws, college policy and the provisions of their respective collective bargaining agreements.  However, if the accused is a union member, should the standard of review become an issue predetermined by collective bargaining?

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The impending Title IX changes give colleges and universities the right to choose the standard of review between preponderance of the evidence and clear and convincing evidence.  Yet, the question remains under the proposed Title IX changes: Is the Title IX standard of review a mandatory subject of bargaining?  Is the Title IX standard of review a term and condition of employment? In California, for example, the public employment statute reads “it is the purpose of this chapter to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.”  See Cal. Gov’t Code § 3500

In Illinois, an employer’s refusal to negotiate over a mandatory subject of bargaining constitutes an unfair labor practice. Vill. of Oak Lawn v. Illinois Labor Relations Bd., State Panel, 2011 IL App (1st) 103417, ¶ 14, 964 N.E.2d 1132, 1136. Similarly, in Ohio, the public employment statute states “all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative ….”  See Ohio Codes 4117.08

While these matters will vary from state to state, the issue is set to become one of the most contentious concerns for colleges nationwide.

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OU cuts access to Title IX reports

Equal Opportunity, privacy, title IX

Change prioritizes student privacy, but is it at cost of public’s right to know?

Ohio University’s legal office said last week that it no longer will provide reports of investigations into student complaints that professors and staffers have violated federal Title IX non-discrimination policies.  This is a significant change in practice for the university, which up until this month had provided copies of its reports of an investigation conducted by OU’s Office for Equity and Civil Rights Compliance into student complaints.  In recent years, The Athens NEWS has published a number of articles based on those types of reports.

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Barbara Nalazek, OU’s deputy general counsel, said in a statement last Monday that the university would decline to provide The NEWS with four copies of the investigatory reports – called Memorandum of Findings (MOFs) – that the university created based on student complaints against OU professors this year.  

For the full article, click here….

DOE investigating Title IX complaints from men who say it discriminates in support of women

Due Process, Equal Opportunity, title IX

A men’s rights activist who has used federal complaints to target women-only scholarships and programs is now trying to start a national movement to end what he sees as discrimination against men.

Over the past 15 months, the activist, Kursat Pekgoz, 31, a doctoral student in English literature at the University of Southern California, has filed federal Title IX complaints against three universities, and drafted complaints against three more, alleging that efforts to support female students are no longer necessary and amount to discrimination against male students. Once outnumbered, women now make up about 56.5 percent of students at American universities, notes Pekgoz, who has himself been the subject of a Title IX investigation into a sexual harassment allegation.  For the full article, click here…

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Lawsuit: IU Violated Title IX By Suspending Male Student Accused Of Rape

Due Process, Equal Opportunity, title IX

A male student is suing Indiana University for Title IX violations, alleging the school’s investigation into rape accusations was biased against him because of his gender.

It’s the latest in a series of lawsuits invoking the federal civil rights law on behalf of men accused of sexual assault.

The Incident

The complicated details of the case begin in September 2017, when both John Doe and Jane Doe acknowledge they had sexual intercourse at a fraternity house. The two later learned someone else had taken a photo of them during intercourse and had shared it with others.

The photo was reported to IU officials and an investigation began a few days later. The university ultimately found two people responsible for taking and distributing the photo.

In May 2018, the school launched a new investigation after Jane reported she was too drunk to give consent that night and accused John of sexual assault.

Indiana University Police investigated and the Monroe County Prosecutor’s Office declined to file rape charges.

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According to documents filed with the lawsuit, an IU panel heard testimony from both students; they gave conflicting accounts about the night, with John reporting that he verbally asked Jane for consent.

The panel determined in November that John “did not know or reasonably should not have known that Complainant was incapacitated,” but also determined he “more likely than not” violated sexual consent code of conduct policies. The panel also determined John allowed that photo to be taken.

His punishment included a four-year suspension, a no-contact order with Jane Doe, and a prohibition to be on campus during the suspension.  For a copy of the current lawsuit, click here…  395469534-John-Doe-v-Indiana-University-Title-IX-Violation-Complaint 

For the full article, click here… 

Dean of Harvard Faculty ‘Concerned’ About Proposed Federal Changes to Title IX

Due Process, Equal Opportunity, title IX

Dean of the Faculty of Arts and Sciences Claudine Gay said in an interview Wednesday that she is currently reviewing proposed changes to federal Title IX policy and would be “concerned” about any alterations that make it more difficult for people who have experienced sexual misconduct to report it.

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The proposed regulations — released last month alongside a statement from U.S. Education Secretary Betsy DeVos — provide a new framework for interpreting Title IX, an anti-sex discrimination law that shapes the way universities address sexual harassment.

Under the new proposed rules — which could take effect in 2019 following a notice-and-comment period — universities would choose what standard of evidence to apply to cases of sexual misconduct, complainants and respondents of formal investigations would have the opportunity to question each other in a live hearing, and complaints of misconduct could not center on incidents that take place outside the bounds of a school “program or activity.”  To read the full article, click here…

He defended Michigan State vs. sexual assaults. Now he heads the Title IX Office

Due Process, Equal Opportunity, title IX

A Michigan State University attorney who defended the institution against sexual assault lawsuits is now heading the office handling sexual assault complaints — a move that is drawing criticism from victim advocates.

This month, Robert Kent was moved out of his assistant general counsel position and into the job of interim associate vice president of the Office of Civil Rights and Title IX Education and Compliance — a decision made by MSU Interim President John Engler that is drawing scrutiny from critics, who say the move could send a discouraging message from the university. msu

“At every turn, they signal an unwillingness to deal with the culture, and a message to survivors that their voices don’t matter,” said Rachael Denhollander, the first Larry Nassar sex assault victim to come forth publicly. She said, in her view, the appointment of Kent to handle Title IX cases was the latest in a string of insensitive moves.  For the full story, click here …