Monday, May 18, 2020
Ostensibly, September 2017, when the Department of Education withdrew “Obama-era guidance” concerning the implementation of Title IX regulations, was the start of battle timeline. After these documents were withdrawn, stakeholders awaited the proposed Title IX regulations with varying levels of anticipation or dread. Those arrived in November 2018, to both praise and gnashing of teeth. Next came the comment period, wherein more than 124,000 comments were logged. There followed speculation as to what the final regulations would be as well as speculation as to when they would be released. December 2019 seemed likely. December 2019, January 2020, February 2020, Corona Pandemic, March 2020, Corona Pandemic, April 2020, Corona Pandemic, May 2020—final regulations issued during this global crisis that has hit schools very hard. More praise or gnashing of teeth. A week later came the inevitable lawsuit challenging the regulations, whose current effective date is August 14, 2020. So everyone has come out of their corners swinging. And the battle will rage on.
In some ways, this is a familiar battle. New administrations produce new regulations or rescind current ones. It is but one proof of the phrase that elections have consequences. That it is the common course of things makes it no less critical for the stakeholders involved. However, the handling of sexual misconduct cases/Title IX enforcement at institutions of higher education has never fallen into the category of “it ain’t broke, don’t fix it.” Both complainants and respondents have sued institutions for the handling (or alleged mishandling) of Title IX complaints. Much ink has been spilled about high profile Title IX cases at IHE’s that have been handled abysmally. Thus the criticism that schools are not well equipped for this.
Time will tell whether the regulations will go forward as they were issued on May 6th. But regardless of that outcome, it is unlikely that the new regulations will be what survivor groups want. The new regulations, as they now stand, contain mandates but also degrees of flexibility. It is important for those who can, to step forward to assist schools as they work to implement these regulations in the best way possible in this strange new world.
Thursday, May 7, 2020
By Prof. Justine Dunlap
It was the worst of timing.
The Trump Administration’s Title IX regulations governing sexual misconduct were issued in draft form in November 2018. A year later, word came that they would be released in final form in December 2019, along with leaked drafts of what the final regs would contain. This allowed a sneak peek into which of the more than 120,000 comments proffered during the notice and comment period were considered and incorporated, and which failed to budge the regulators. So those of us who follow these things were waiting for the regs to drop. Some waited with anticipation, some with dread, others perhaps with mere curiosity.
Then the coronavirus hit and the resulting COVID-19 illness required schools across all learning levels and ages to become vehicles of remote learning. Schools, including IHE, are continuing this mode of remote learning through the summer and are now considering what the Fall term will look like on campus—or whether it can even be on campus. Further, institutions of higher learning are undergoing significant financial challenges due to coronavirus closures. Layoffs and furloughs are inevitable.
Amidst this, on Wednesday, May 6th, the Title IX final regulations were released, with an implementation date of August 14, 2020 attached. So merits aside for a moment, the timing is abysmal. These regulations constitute a major shift in Title IX law in numerous ways. They require significant changes in how schools conduct hearings on alleged sexual misconduct. It will be extremely hard for IHEs to plan for the regs’ implementation from—quite literally—afar. Moreover, the staff needed to implement these new regs may be unavailable, perhaps because they have been redirected to deal with student COVID-19 related crises. The American Council on Education, eighteen state attorneys general, and at least three senators had asked the DOE to delay the already delayed final regulations until the COVID pandemic abated. Somehow, Secretary of Education Betsy DeVos’s response that “civil rights really can’t wait” is supremely unsatisfying.
Thursday, January 24, 2019
For over a week last January, 156 women provided victim statements during a sentencing hearing for sexual assailant Larry Nassar. On this January 16th, John Engler resigned under pressure as the interim President of Michigan State University. Engler’s offense was a recent interview in which he suggested that some of the survivors were enjoying the spotlight. These comments were not the first to stoke controversy, but they were what finally led university trustees to demand his resignation. Engler, an MSU alumnus and former governor, was appointed last February after President Lou Anna Simon was forced out because of her failures in the Nassar case. (She has since been charged criminally with lying to investigators; her preliminary hearing is scheduled to begin January 31). Nassar will spend the rest of his life in jail. However, it took nearly two decades of allegations to get there and, as the Engler resignation suggests, even now the survivors are scapegoated or, to use the phrase coined by Professor Jennifer Freyd, subject to institutional DARVO, an acronym for Deny, Attack, and Reverse Victim and Offender.
This past week also saw movement in another case involving longstanding allegations of sexual assault. RCA dropped its recording relationship with musician R. Kelly. Kelly is the subject of a recent documentary about these assaults and, one by one, artists with whom he had collaborated are removing those recordings from streaming sites. As with the Nassar victims, it is alleged that Kelly’s victims were often underage. And as with Nassar, prior investigations—in Kelly’s case, a prior prosecution—did not yield results.
In light of these two recent events involving assaults on women and how long it takes reports of those assaults to matter, the recent Gillette razor commercial and the reaction to it deserve special note. For those not paying attention, Gillette released an ad urging men not to behave like bullies or jerks especially, but not exclusively, regarding treatment of women. Boy (so to speak), did that ad hit a nerve and then some. It is as if suggesting that if men and boys choose not to fight or not to leer or not to out-testosterone the Y chromosome human standing nearby, they are emasculated. Really? Have we come to that? Has the “locker room talk” and “boys will boys” defenses led to enshrining boorish behavior? Perhaps it demonstrates naivete to be surprised but still. I hereby tip my hat to Gillette and pledge to buy their razors.
So, it has been an interesting week or two at the start of the new year. Progress has been made. But, as usual, that progress is not linear.
Thursday, August 23, 2018
Florida's Lowell Correctional Institution for Women is infamous for human rights abuses. Recently a convening was held in Florida giving formerly incarcerated women and their families an opportunity to tell Justice Department investigators of the brutalities they experienced at the prison at the hands of the guards. They described rape, assault and drug smuggling by officer as routine.
The investigation into possible constitutional violations began in July . Lowell has the second largest women's population in the country. One family reports that their daughter is verbally and physically attacked by corrections officers. The Miami Herald helped expose the human rights violations in a report Beyond Punishment. The paper followed up reporting on the meeting that occurred with Federal Investigators.
"DOJ representatives said they are focusing on whether the Florida Department of Corrections has ignored, covered up or dismissed widespread complaints of sexual misconduct by officers, administrators and staff." One woman reported being in isolation for 65 days following a report of sexual assault by a corrections officer. This punishment for reporting assault is common in many women's prisons.
Laura Cowell, an attorney with the Justice Department, said that the inquiry was not a criminal one. She said that should violations be found DOJ would work with prison officials to address "deficiencies". Leaving unanswered why the investigation is not criminal and what power will DOJ have in stopping the abuses without the power of arrest. Attorney Cowell tried to assure the audience "that retaliation would not be tolerated by the Department of Justice, pointing out that it is against the law for anyone to impede a federal investigation." So is sexual assault, drug distribution and other horrors going on inside Lowell.
Sunday, January 7, 2018
Is Matt Damon one of the celebs looking to derail the #MeToo movement? For those of you who have the sense not to follow celebrity "news", Mr. Damon remarked during a recent interview that there is a big difference between patting someone on the rear and rape. Well, I concede, there is a difference, but Mr. Damon should not diminish the serious psychological harm that comes to women who endure unwanted physical touching day after day. The behavior not only demeans their work, but their entire being, causing some severe psychic pain and loss of self-esteem. Just ask the women at Ford. Or ask the women who left the entertainment industry, forfeiting their chosen careers due to harassment. Mr. Damon also suggested that men who grew up believing patting women's rears was ok should be treated differently.
Let's not get distracted as Joan Vennochi did. Yes- there are degrees of behavior. There are even differences on what an appropriate employer response should be to reports of current or past sexual harassment.
Let's look at two unexplored aspects of Mr. Damon's chatter. First is the timing. Why interrupt a relatively nascent movement that is just beginning to see effects outside of the entertainment industry? Mr. Damon's follow-up remarks saying that all of the unwanted behavior must be eradicated, do not justify the timing of criticizing the movement when the impact of his remarks could slow, if not stop, the momentum. Mr. Damon is defensive from criticism that he did not "know" about Harvey Weinstein's behavior . That is possible. But it is not plausible that Damon did not understand the consequences of creating diversion at a critical time in women's attempts to be heard.
Second point, once again Mr. Damon removed men's responsibility for decision making and subtly put it on the women of the #MeToo movement. Mr. Damon failed to mention that the men being fired from their positions were being fired by men. Next time Mr. Damon decides to pontificate about men's behavior, perhaps he could make it clear that he is criticizing the male CEO's for their post-allegation responses. The silence of not naming the problem shifts blame to the victims.
Equally unfortunate that the focus of recent firings has been solely on physical behavior, including threats or demands for sex. We risk making inappropriate physical behavior or threats involving sexual demands the bar for firing when non-physical displays of misogyny should be adequate.
Wednesday, November 1, 2017
Our One-Year-Later Series: Who Knew? Anti-Sexual Harassment Responses Accelerate In The Trump Year One
by Margaret Drew, co-editor and Professor, University of Massachusetts School of Law
More dramatic and large-scale responses to reports of sexual harassment have occurred in the past year and a half than in recent memory. The seeds of this remarkable change began during the last presidential campaign and have grown exponentially since the election.
Bill Cosby’s pattern of sexually assaulting women was notorious as well as traumatizing for his victims. The hung jury that resulted from his prosecution by Andrea Constand was indeed a huge victory. Sexual assault trials are largely unsuccessful because of negative stereotypes of victims that remain in the psyche of jurors and are promoted by defense counsel. A lack of understanding of the impact of trauma on survivors compounds the difficulty of prosecuting those who sexually assault. Women recognized this hung jury as a victory. And much followed.
The forced resignation of Roger Ailes, Fox News founder, after sexual harassment allegations by Megan Kelly and others happened mid-campaign, in proximity to the Cosby trial.
The recent removal of Harvey Weinstein from both Miramax and the Academy of Arts and Sciences following dozens of allegations of sexual harassment and sexual assault was unprecedented. This was followed by public accusations against “celebrity” chef Josh Besh. Political author and analyst Mark Halperin was removed as a CNN commentator when women came forward with sexual harassment allegations against him. So far, Halperin is the only one to take responsibility publicly for his behavior and to receive therapy. The therapy is seemingly effective as the allegations stemmed from Halperin’s earlier years with ABC news. President George H. W. Bush has been inappropriately touching women for years, and apologized only now after allegations surfaced. Expect more public consequences for men who harass females.
Women found their voices with the election of President Trump. The Women’s March on January 21st, both in D.C. and around the world, was the largest public demonstration in our history. Yes – it was even larger than the number of inaugural attendees! Women united created a powerful voice and there is a direct link to women being empowered to make public allegations of sexual harassment, including sexual assault and the public fall of so many serial abusers.
My colleague and co-blogger Jeremiah Ho suggested that perhaps the rise in anti-sexual harassment responses is a direct result of our failure to keep a sexual predator out of the White House. I think he is on to something. When I participated in the Women’s March, I thought the motivation for marching was multi-layered. Primarily I thought women had recognized how much more dangerous and insecure their children’s and grandchildren’s world would be under Trump leadership. That and other concerns are valid. Having devoted my professional career to assisting survivors of gender violence, and seeing little progress in the employment and sexual assault arenas, perhaps I was unaware of how profoundly women generally had been affected by the Billy Bush tape. Perhaps the primary motivator was failure of the country to denounce candidate Trump after release of his infamous remarks. Was the election of a known and proven sexual predator to our highest office the trigger to women’s activism?
Historians will debate that question. But we do know that one year later the consequences of the election include women exposing their oppression, being believed, and seeing large scale consequences for their oppressors. This is not only news, it is new.
Next steps: most of the accusers to date are white. I realize that show business is a largely white business, which has been a matter of controversy of its own. We need to find a way to bring the same power to the voices of our sisters of color.
[Ed's Note: This is the second in our series of Human Rights Law Prof reflections on the past year, following the November 2016 election. Stay tuned for more! The first blog in the series, by Fran Quigley, is here.]
Sunday, November 13, 2016
Women's human rights have been under siege as long as I can remember. But certainly since Roe v. Wade, eliminating women's autonomy in all aspects of their lives, and particularly in health care decisions, has been the focus of (mostly) white men and particularly those in Congress.
The convergence of sexual assault protests and concerns over abortion restrictions bring autonomy concerns into clearer focus. Both issues highlight many men's belief that they have the right to control female bodies no matter how personal the decision or how criminal the act that a man is perpetrating. Other issues that may seem disconnected from the issue stem from men's attempts to control women's bodies. Restrictions on public breastfeeding is one. Forcing working women who choose not to abort to return to work prematurely is another. Before their bodies are fully healed from childbirth, mothers are back on the job because maternity leave of sufficient duration is often lacking, even in the rare instances where leave is paid. Employment harassment is difficult to prove, and often dismissed on summary judgment, even when there is proof of lewd comments or other actions directed toward the woman and her body.
The Trump election has prompted women to public advocacy. Women's advocacy in the form of public demonstrations has been largely dormant for the past two decades. That is changing.
On January 21, 2017 women will march on the capitol. The Women's March on Washington, formerly called the Million Women's March, will take place on the Washington Mall and women and allies are invited. The demonstration is in response to women's concerns that they will lose rights because of Mr. Trump's election and promises to be the largest protest to date. Taking place the day after the inauguration, women will voice concerns over the enhanced violence against women, including rape culture, pay equity and the return of women to property status, among other issues.
More information on the march may be found on Facebook. Since the march is being organized state by state, many states have already set up Facebook pages.
One significant flaw in US women's movements has been the exclusivity of white leadership. Indeed, the early violence against women movement barely acknowledged women of color as significant, despite their increased vulnerability to gender based violence. Last week, women of color held a post-election demonstration in NYC. Linda Sasour of MyMuslimVote told the demonstrators “We don’t want to be the generation that says ‘never again,’ and then things happen on our watch. Let us be different.”
If you visit the March on Washington facebook page, why not suggest that leadership be turned over to women of color. Otherwise we perpetuate an unnecessary and disrespectful divide within our gender.
Sunday, August 14, 2016
90 law professors signed a letter to the Justice Department supporting the use of the “preponderance of the evidence” standard in determining culpability in Title IX investigations.
As reported before, there has been a movement to raise the standard of proof to be used in on-campus sexual assault hearings brought under title IX. There are several lawsuits against the Department of Education, Civil Rights Division, for promoting use of the preponderance standard on campus. Plaintiffs claim that Justice imposed the standard on campus proceedings without going through proper channels, including promulgating the standard without an opportunity for comments.
According to an article in the Atlantic, prior to the 2011 “Dear Colleague” letter, schools set their own standards, some adopting some form of “clear and convincing”. The April 4, 2011 DOE letter clarified that the appropriate standard to be used in campus sexual assault hearings is the preponderance of the evidence. The letter noted that preponderance of the evidence is the standard used in civil rights hearing complaints.
Prof. Nancy Chi Cantalupo of Barry University Law School, organized the effort. She explained that “Many people seem to think of the law as just one kind of law: the criminal law, but there are many other kinds of law, including civil rights law.”
As the white paper points out, there are no complaints about the preponderance standard being used when race discrimination complaints are heard on campus. Only when sexual assault and other sex discrimination complaints are brought by students is the standard challenged. In many ways, women are the last frontier of discrimination. For whatever reason, challenges are still made to women's rights and women's credibility that we left behind, in the strict legal sense, for race matters.
To many schools the outcome of the legal challenges may be inconsequential. Many schools have already eliminated hearings in favor of investigations that result in an administrative determination outside of the hearing model. Whether or not the hearing model will be restored when the standard controversy is resolved remains to be seen. Also, unknown is whether the alternative investigative process itself will be challenged next.
Tuesday, January 19, 2016
In contrast to the bleak news reported yesterday, the U.S. Navy is continuing its proactive response to the needs of sexual assault survivors. The Navy is considering a fast track discharge process for personnel who have been sexually assaulted and apply to leave the Navy as a result. For those who remain in service, the Navy is developing a system that will prevent the alleged perpetrator and the survivor from being placed in the same command, even years after the incident that led to the allegations. Admiral John Richardson, Chief of Naval Operations, is sensitive to the situation where an alleged perpetrator might not be discharged, for example where there is no conviction. As reported on Military.com, Richardson said that the Navy is considering development of an app based on those in use on some college campuses that will make it easier to report sexual harassment or assault. "Such a tool would help remove stigma for survivors, making reporting data more accurate and possibly reducing stigma preventing male sexual assault victims from coming forward."
Monday, January 18, 2016
U.N. "Peacekeepers" stationed in the Central African Republic have been exposed for paying for sex with girls. The prices paid ranged from 50 cents to $3.00. Not surprisingly, the girls are part of a prostitution ring organized by boys and young men pimps, in this instance from M'poko, a camp for the internally displaced. The offending soldiers were from Gabon, Morocco, Burundi and France.
The Washington post reported the most recent news, but the UN learned of the behavior last summer. While the headlines typically read that U.N. Peacekeepers paid young, underage girls for sex, perhaps a better headline would be that UN Peacekeepers supported a local prostitution ring in the sexual abuse of young girls. I don't think that anyone will argue that the thirteen year old girls voluntarily participated as sex workers as a lifestyle choice. Their circumstances of being displaced, in addition to their sex and age, made them particularly vulnerable. Also last summer, Amnesty International reported the rape of a 12 year old girl by a U.N. Peacekeeper. After initially denying reports of sexual exploitation, the UN is now investigating.
The story of the Peacekeeper exploitation was reported by Human Rights Watch in August. As Sarah Taylor reported, the UN at last may be shifting the way it views sexual abuse and exploitation, which has been reported in many countries in addition to CAR. Rather than consider these actions as conduct offenses, the UN, according to a report issued by the Secretary General, is encouraged to view this abuse as conflict-related sexual violence. In September, Secretary General Ban Ki-moon announced several initiatives including banning anyone with a history of sexual violence from serving with the UN.
The UN and other military authorities avoid, however, the central issue of why sexual abuse and exploitation is not the first issue addressed whenever troops are deployed. Crimes of sexual abuse against women and children is a documented reality around the world, but particularly for areas of conflict. Before the UN, or any individual country, sends troops to protect elections or assist refugees, the first mission might be to safeguard the residents from abuse, particularly sexual violence. Other missions are secondary.
Monday, October 27, 2014
According to a National Institute of Justice study, a majority of teens who date described themselves as either victims or perpetrators of abuse within the dating relationship. Much of this violence happens on school campuses. Friday's post addressed sexual assault and other abuse against members of campus higher education communities and the difficulties faced by students who participate in university administrative hearings. Following a sexual assault or other abuse over which the educational has jurisiction, students face options should they decide to pursue a remedy. For many reasons, a student may decide not to pursue criminal charges. They may, however, decide to pursue an administrative hearing within the university system, typically through campus Judicial Affairs. The sensitivity and civility of these hearings varies between those that safeguard against disrespectful proceedings and those that permit behaviors that humiliate the complaintant.
Earlier this month, Pepperdine University hosted a conference Student Life, Relationship and the Law: Confronting Domestic Violence in Higher Education. The interdisciplinary conference brought together those working with students who have experienced campus violence and those who engage in scholarship on violence. While the difficulties faced by survivors in finding appropriate remedies was part of the discussion, so was implementing remedies. One significant part of the identified problems is a lack of respectful treatment during administrative hearings. Several speakers suggested changes that could restore dignity to campus investigations and hearings. As stated in Article One of the Declaration of Human Rights, "All human beings are born free and equal in dignity and rights."
Schools need to create processes that are culturally sensitive. In particular, African-American and LGBT students feel at particular risk for not being treated respectfully during school administrative hearings and other parts of the investigatory process. Prof. Deborah Weissman and others addressed the need for remedies to be available to diverse students in a way that treats them with dignity and respect and provides settings and processes that are designed to incorporate the needs and wishes of those who historically have been marginalized.
A link to the substantive discussion is found here.
A related suggestion is for Judicial Affairs hearings officers and others involned in the process must be vetted for cultural sensitivity and subject matter competency. Misunderstanding of sexual assault, use of stereotyping of relationships and parties can victimize all parties to the hearings. Some hearings leave students humiliated and without a sense of fairness. Many of the same barriers faced by parties in criminal hearings are present in some campus judicial office hearings. Being a member of the faculty or campus administration does not qualify those individuals to hear concerns regarding sexual assault and other abuse. Likewise, academic qualifications do not ensure neutrality or lack of bias. Campuses need to engage experts on abuse to participate in hearings and ensure that all involved in the process are familiar with the issues being heard and the sensitivities involved.
Recently members of the Harvard Law School faculty criticized Harvard's revamped sexual assault policy. The new policy is not unlike that of many universities. The professors bring a perspective rooted in criminal law to campus proceedings. Any accused student is wise to consult with counsel before engaging in either campus or criminal hearings. A misunderstanding exists, however, that students are deprived of counsel at campus hearings. While attorneys and other advisers are not permitted to conduct courtroom-like examinations, the students are able to consult with counsel or other advisers at any stage of the process, should they decided to participate. Bringing a criminal law perspective to these hearings would virtually shut down the purpose of the hearings, which is intended to be remedial, not punitive. The applicable standard of proof at campus hearings is preponderance of the evidence. Once campus processes take on attributes of criminal hearings, officers will confuse the standard of proof with reasonable doubt. A shift of both purpose and standard can happen in ways that are not obvious and may not be intended. But the consequence would be essentially to close the administrative avenue of recourse to those students who wish to pursue a non-criminal avenue of redress.
Friday, October 24, 2014
In 2011, Vice President Biden delivered his “Dear Colleague” letter to college campuses across the nation. The letter reminded campus administrators of their obligations to protect and provide services to those who experience gender discrimination, including relationship violence. The letter referenced specific protections and obligations incumbent upon colleges and universities to make known to students, including the school’s resources and processes in the event a student experiences violence. Subsequently, the Department of Education announced the investigation of over 50 campuses that may have inadequate campus responses to gender violence. Non-compliance can range from deficient web posting of Title IX resources to failure to provide fair hearings for sexual assault survivors seeking remedies through their schools.
3900 campus sexual assaults were reported in 2012. Many schools saw an increase in reporting which is attributed to more responsive efforts on the part of colleges and universities following announcement of the government investigations including more accurate reporting of campus crime. Nonetheless, sexual assault victims continue to report disrespectful hearings and ineffective resources in both finding help as well as suitable remedies through the university systems.
Student participants in university hearings more often than not describe dissatisfaction with the pre-hearing process and the process itself. Hearings officers may not understand violence and others who dismiss the seriousness of an assault. Same sex students and students of color have complaints that echo victims' complaints of negative experience when they engage the criminal justice system. Stereotypes can permeate the process or enhance of distrust of the process. While many students fail to report sexual assault, under reporting is particularly high with students of color and and gender variant students.
Part two of this post will address recent discussions on how to address campus violence in ways that respect and are meaningful for all targets of campus violence.