Kafkaesque Example of a College Title IX Prosecution Under the Obama Rules

I did not vote for Trump and I find him generally deplorable. However, the new Title IX college sexual harassment rules implemented by Trump and Betsy DeVos are well supported by the case law and are an enormous improvement over the version of the rules implemented by Obama.

What could possibly go wrong under the Obama version of the rules? Listen to this horrific miscarriage of justice described by attorney Lara Bazelon, speaking with Glenn Loury.

The proposed new Title IX rules by Joe Biden will be a catastrophically bad miscarriage of justice. FIRE (The Foundation for Individual Rights and Expression) points out the many problems with Biden's proposed rules:

Rejecting the definition of student-on-student harassment set by the Supreme Court in Davis v. Monroe County Board of Education.

Requiring institutions to police speech and sexuality worldwide, not just in programs and activities on and around campus.

Requiring institutions to issue gag orders on the parties and their advocates that prevent them from disclosing “information and evidence obtained solely through the sex-based harassment grievance procedures,” meaning institutions of higher education are now required to enforce prior restraint and content-based restrictions on students’ speech or the speech of those advocating on their behalf.

Revoking the current requirement that accused students must be offered an opportunity to have a live hearing to contest the allegations against them.

Eliminating the right to a live hearing to contest claims, and thus also eliminating the right to cross-examination.

Allowing a single investigator to both investigate and adjudicate complaints, dramatically increasing the odds that one person’s bias, subconscious or otherwise, permeates the process. Such a system increases the likelihood of error, thus increasing the likelihood that accused students will be unfairly deprived of their access to educational opportunities or benefits.

If finalized, these and many other proposed provisions will mark a new, and unfortunately familiar, era of Title IX hearings in which institutions of higher education fail to protect the First Amendment and due process rights of students and faculty, likely resulting in costly litigation for institutions to ensure these basic protections are met.

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Biden’s Proposed Title IX Procedural Rules Bring Back Kangaroo Courts at Colleges

What is the best way to determine whether a person engage in sexual harassment or sexual assault at a university? What procedural safeguard should we offer, given the fact that being expelled from college could destroy a person's career?

The National Review Compares the current rules (enacted by Trump's secretary of education Betsy DeVos) to the rules being proposed by Joe Biden. The article is titled, "Guilty until Proven Innocent: Biden Title IX Changes Mean Return to ‘Dark Ages’ for Falsely Accused Students."

While the woman who’d accused him of rape appeared before a Columbia University panel in June 2017, Ben Feibleman was in another room watching it on Zoom.

Feibleman was not allowed to cross-examine his accuser during the hearing to determine if he would be expelled from the school, potentially scarring his personal and professional life permanently. He wasn’t even allowed to be in the same room with her.

During the hearing, Feibleman was also barred from discussing a medical report that found his accuser was likely not impaired or unable to consent to sexual activity the night of the alleged assault. He was barred from discussing his accuser’s behavior that he said eventually caused her friends to doubt her. If Feibleman mentioned any of it, he’d be removed from the hearing.

Feibleman’s written statement to the three-member hearing panel was heavily redacted, according to court records. The panel took no testimony. Members refused to ask questions of Feibleman or his accuser that Feibleman had repeatedly begged them to ask about evidence he’d submitted in his favor — hundreds of photos, videos, and a damning audio recording.

And then the panel found Feibleman guilty. He was expelled and denied his diploma.

“Nobody had any interest in my version of events,” Feibleman told National Review.

Feibleman’s experience with a less-than-fair quasi-judicial university hearing was not unique in the years after the Obama administration issued Title IX guidance documents directing the nation’s colleges and universities to crack down on sexual harassment and sexual violence cases on and off campus. The Obama-era guidance essentially tipped the scales in the direction of the accusers, typically women, with millions of dollars of federal funding for schools on the line. [More . . . ]

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Gettysburg Address and Lincoln Bust Woke-Washed at Cornell University

A Cornell University Library has removed a display containing a copy of the Gettysburg Address and a bust of Abraham Lincoln from its library based "on a complaint."

A bust of President Abraham Lincoln and a plaque of the Gettysburg address have been removed from a Cornell University library.

"Someone complained, and it was gone," Cornell biology professor Randy Wayne told the College Fix of the matter.

The bust of Lincoln and the bronzed plaque of the former president’s historic 1863 address had been in the Kroch Library, where the university’s Division of Rare and Manuscript Collections is located, since 2013.

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Biden’s Giant Leap Backward on Title IX

Here is an excerpt from a new article on the common sense changes to Title IX that occurred under the Trump Administration that are being reversed by the Biden Administration.  This article is titled: "Biden's Sex Police: The White Houses's new regulations will gut due-process rights for college students accused of sexual misconduct." It appears at Bari Weiss' excellent Substack, Common Sense.

The new rules recommend a return to a “single investigator” model that was barred under the DeVos reform. This means one administrator can act as detective, prosecutor, judge, and jury on a Title IX complaint. The new rules also undo many of the procedural protections for the accused—including the right to see all the evidence, inculpatory and exculpatory, gathered against him. “It’s an evisceration of the procedural protections given to the accused,” says historian KC Johnson, co-author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.

Under the DeVos rules, adjudication of a formal complaint required a live hearing be held that included cross examination. The Biden administration lifts this obligation. The Biden rules also call for a return to investigations initiated by third parties, even if based on rumors or misunderstandings, in which male students can be subjected to Title IX proceedings over the objection of their female partners. (Robby Soave at Reason has a good summary of the Biden proposals.)

“It’s a document that validates all of the concerns we had about due process and free speech being on the chopping block,” says Joe Cohn, legislative and policy director at The Foundation for Individual Rights and Expression. He adds that the administration is giving schools the blessing of the Department of Education “to cut many corners that are essential for fundamental fairness.”

As vice president, Biden made clear that campuses were just the first stop in an effort to remake throughout society how males and females interact. He said in a 2015 speech at Syracuse University about sexual misconduct, “We need a fundamental change in our culture. And the quickest place to change culture is to change it on the campuses of America.”

[More . . . ]

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Biden’s Department of Education Attempts to Deploy Third-World Title IX Regulations in American Colleges

From FIRE:

Today, the Department of Education proposed new Title IX regulations that, if implemented, would gut essential free speech and due process rights for college students facing sexual misconduct allegations on campus. As required by federal law, the department must now solicit public feedback before the pending rules are finalized.

The draft regulations are a significant departure from current Title IX regulations. Unlike the current regulations, adopted in 2020 after 18 months of review, the new regulations would roll back student rights by:

  • eliminating students’ right to a live hearings
  • eliminating the right to cross-examination;
  • weakening students’ right to active legal representation;
  • allowing a single campus bureaucrat to serve as judge and jury;
  • rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
  • requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.
  • These changes authorize or require institutions to violate fundamental student and faculty civil liberties.

The Foundation for Individual Rights and Expression will submit its formal objections to the proposed changes in the coming weeks. Moreover, FIRE is committed to using all the resources at its disposal to ensure that core American freedoms, such as a student’s rights to free speech and due process, are not abandoned by the federal government.

Continue ReadingBiden’s Department of Education Attempts to Deploy Third-World Title IX Regulations in American Colleges