Blog : Title IX

Kansas State University Can’t Dodge Our Title IX Lawsuit

Image result for kansas state title ix lawsuitA lawsuit filed against Kansas State University (KSU) by two former students who were sexually assaulted was given clearance to proceed by the United States Court of Appeals for the Tenth Circuit, which held that “Title IX does not require a subsequent sexual assault before a plaintiff can sue.”  This victory will help these women and countless women across the country use Title IX to achieve justice and compel schools to protect survivors.

The two women who brought the suit, Tessa Farmer and Sara Weckhorst, were each brutally raped by KSU students at off-campus fraternity houses.  Both reported the rapes to KSU and identified the perpetrators, one of whom is now in prison.  KSU refused to investigate or take any action against the perpetrators, allowing them to remain on campus, and justified its indifference on the basis that the rapes occurred off-campus.  Ms. Farmer and Ms. Weckhorst sued KSU for violating Title IX, alleging that KSU’s deliberate indifference made them vulnerable to further sexual harassment by the assailants.  KSU disagreed, suggesting that their fear of encountering the assailants on campus had no “basis in reality.”  The Tenth Circuit disagreed, ruling:

Plaintiffs’ allegations are quite specific and reasonable under the circumstances.  Plaintiffs allege more than a general fear of running into their assailants.  They allege that their fears have forced them to take very specific actions that deprived them of educational opportunities offered to other students.  In addition, they have alleged a pervasive atmosphere of fear at KSU of sexual assault caused by KSU’s inadequate action in these cases.  A Title IX plaintiff’s alleged fear of encountering her attacker must be objectively reasonable, but under the horrific circumstances alleged here Plaintiffs have adequately alleged that KSU’s deliberate indifference to their rape reports reasonably deprived them of educational opportunities available to other students at KSU.

“It feels so empowering to know that what Sara and I went through and the work we’re doing could potentially help people all over the country,” said Tessa Farmer.  “It’s just amazing how you can take a terrible situation and turn it into such a positive movement for change.”

Ms. Farmer and Ms. Weckhorst are represented by Jonathon Fazzola, an attorney with The Fierberg National Law Group.

About Jonathon Fazzola & The Fierberg National Law Group

Attorney Jonathon Fazzola and The Fierberg National Law Group represent victims of violence and harassment, including sexual abuse and assault, to make certain their rights are protected, and ensuring perpetrators and institutions that fail to comply with their obligations to protect victims are held accountable to the fullest extent of the law.

Read the Opinion Here.

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Blind Eye Movement: Speaking Out About Sexual Abuse

Many Voices. One Message. Speaking Out About Sexual Abuse.

Join us March 2nd, 2019 from 11am to 1pm: The Fierberg National Law Group and School Violence Law is sponsoring an event where survivors of sexual abuse share their stories & local experts provide info on support, resources and legal rights for survivors and their families. #metoo #churchtoo #blindeyemovement#recognizepreventrecover #manyvoicesonemessage #victimrights #itsonus #nnedv #nsvrc #rainn

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“I Am A College Linebacker Tackling Sexual Assault: Why I Oppose The Proposed Title IX Rule Changes”

Kyle Richard Brand Contributor | Civic Nation BRANDVOICE | Dec 18, 2018, 02:26pm

Kyle Richard, senior kinesiology major at SUNY Cortland, is a guest contributor for It’s On Us.

It was July 23rd, 2017, at 2am. My friends and I were at a party when a young male attempted to sexually assault a young woman. My friend, Sulaiman Aina, and I were directly able to break it up. Moments after speaking with the victim to clarify what was happening, I immediately went to look for the perpetrator. With him still in front of the house, I went to confront him. In the process of my sticking up for the victim, the perpetrator pulled a gun out and let off three shots, two bullets tearing through each of my legs and the last one sailing past me. Thirty seconds later the perpetrator shot at my friends, who had just gotten back from the diner. My friend, Michael Abiola, was shot in his shoulder and would recover more than a year later.

The world needs to know that this is no sob story. This is a story that has promoted bystander intervention and raised sexual violence awareness for thousands of people.

In the process of my sticking up for the victim, the perpetrator pulled a gun out and let off three shots, two bullets tearing through each of my legs and the last one sailing past me.

Being a student-athlete at SUNY Cortland, my dream after the incident was simply to get back to being able to play football. Only two months of rehab and I was just good enough to get back onto that field. I did not think much of what Sulaiman and I had done that early morning in July. In my head, what had happened that night was something that most people would do. Through research and personal stories that involved active bystanders, there was a realization that we live in a toxic culture that needs change. Now I speak out, usually while wearing my Cortland Football collared shirt, at a variety of events to spread awareness. If one football player can take a stand against sexual violence, maybe another athlete will.

One classmate spreading awareness will make other classmates spread awareness. Student leaders organizing and maximizing sexual/domestic violence awareness clubs will get more people involved. Fraternity leaders holding their brothers to a higher standard to treat people with respect. These should all be considered forms of bystander intervention in relationship with this toxic culture.

Now I speak out, usually while wearing my Cortland Football collared shirt, at a variety of events to spread awareness.

It is important for young men to fight against sexual assault, because the overwhelming majority of perpetrators are “male.” (I use male, not men, when describing perpetrators because I believe being a man means treating people with respect). Since we young men are so close to the root of the problem, we can be major leaders in changing rape culture. My message to athletes and other young men is that by standing up for somebody, known or random, you can become a hero in a person’s life. Be the person who tells somebody if there is no consent, there is no sex. Be the person who speaks out for campus safety.

That’s why I know the proposed rule changes to Title IX are disastrous—and something young men like myself have a responsibility to speak out against. Since joining the Trump administration in 2017 Secretary of Education Betsy DeVos and her team have claimed these changes to Title IX are intended to protect young men on campus. But I know—and young men all across this nation know—that these changes are really intended to sweep campus sexual assault under the rug and reduce the liability of colleges. We won’t be pawns in Sec. DeVos’s game. We will speak out against these changes.

Her plan to make off-campus incidents non-investigable, by the school the perpetrator and/or the victim attend, is unacceptable. In order to hold their perpetrators accountable, victims would have to face their perpetrators through live hearings. Meanwhile, their perpetrators will roam freely on campus until the misconduct investigation is completed. Victims already have trouble receiving justice. With the proposed Title IX rule changes, perpetrators will be more protected than ever before. We should be looking to support and believe the victims, not hurt them.

If you’re reading this go ahead and leave a comment that the department of education must read and respond to by visiting ItsOnUs.org/TitleIX. Help stop these rule changes!

Kyle Richard is an advocate for sexual violence prevention and bystander intervention. He works in connection with It’s On Us in the SUNY Cortland chapter. He is a senior kinesiology major at SUNY Cortland. Kyle has spoken at several educational institutions such as Stevens Institute of Technology, Cortland High School, Utica College, SUNY Cortland, Fashion Institute of Technology, etc.

 

Full Article Here

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Your Voice Counts: New Title IX Draft Rule on School Sexual Violence & How to Draft a Comment

By now you have likely heard that the U.S. Department of Education recently published a proposed Title IX regulation that would fundamentally change schools’ responsibilities to respond to sexual harassment, sexual assault, stalking, and dating violence in our K-12 schools and college campuses. Right now, it is only a draft rule and there is an opportunity for anyone in the public to voice your opinion during the formal Notice and Comment period until January 28.

The Fierberg National Law Group invites you to a webinar to learn about the proposed rule and how to write and submit a comment.

The webinar is Wednesday, December 19th, 2:00-3:30 PM EST and will be hosted by the Ending Violence Against Women Project of CDAC and the Colorado Coalition Against Sexual Assault and features national Title IX expert and TFNLG attorney, Cari Simon.

Register Here: https://register.gotowebinar.com/register/540751208931213827

#handsofftitleix #titleix #knowyourix @universityeeo 

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CLIENT TESTIMONIAL: PRO BONO VICTORY AGAINST SEXUAL VIOLENCE

“I am so grateful for your assistance with everything. I am thankful to have this behind me and I am looking forward to moving on with my studies.”

Lisa Cloutier and The Fierberg National Law Group continued to seek justice pro bono for a sexual assault and Title IX victim who no longer had the ability to pay.

We prevailed on an appeal, convinced the school to let us submit an appeal of discipline, connected her with accommodations for the first time, and negotiated a tuition reimbursement and grade change…all of which were the key items she wanted. 

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Harvard Sanctions Suits Employ Unusual Legal Arguments

Lawsuit Press Conference 1Plaintiffs in twin suits are using creative legal strategies to argue against Harvard’s sanctions that prohibit members of single-gender final clubs and Greek organizations from holding campus leadership positions, varsity team athletic captaincies, and from receiving College endorsement for prestigious fellowships.

The federal suit alleges that the sanctions amount to sex-based discrimination – violating Title IX and the United States Constitution.

Doug Fierberg, whose expertise was highlighted in The Harvard Crimson’s article stated, “It’s a novel way of twisting Title IX.”

“At the end of the day, the fraternities are going to lose – Just a question of timing.”

Check out The Harvard Crimson article here.

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The Devastating Effects of the Ill-Conceived Proposed Title IX Changes

By Douglas Fierberg & Elizabeth Munoz

The Trump Administration’s ill-conceived proposed changes to Title IX will have devastating effects on the hard-fought progress made on decreasing sexual assaults on college campuses and encouraging survivors to report such misconduct.

According to the Brennan Center for Justice, approximately 80% of rapes and sexual assaults are not reported.  That number is alarming, for obvious reasons.  Yet, the proposed regulations make both the reporting process and the investigation even more challenging, confrontational and threatening, further discouraging survivors from coming forward and decreasing the ability for justice for survivors.

First, rather than the current “preponderance of evidence” standard, which requires that the wrongdoing is proven as being more likely than not (over 50%), the regulations increase this standard to “clear and convincing,” which is a significantly higher burden of proof. 

There is no valid reason for increasing the required burden of proof for alleged sexual violence, when all other misconduct, including violent and deadly criminal acts, are judged in school disciplinary hearings by a preponderance of the evidence.  For example, a student defending himself in school disciplinary proceedings for allegedly killing, maiming, assaulting, stalking, etc., another student may be found responsible if his culpability is established by a preponderance of the evidence.  Were he charged with an act of sexual violence, though, the government and Secretary DeVos believe his responsibility should be established only by the higher standard of clear and convincing evidence.  Why the difference?  Historical and wrongful gender bias, pure and simple.  The fact is that men (the overwhelming majority of offenders) and women presently have numerous rights to defend themselves at school hearings, and appeal adverse findings to multiple levels of oversight. The idea that alleged offenders presently lack due process in defending themselves is pure fiction.

Second, the current disciplinary systems at schools permit extensive questioning of the survivor and accused to challenge their respective accounts and testimony, though under reasonably controlled circumstances. 

Most often, this involves presenting questions to the judicial panel to be posed to the other party for purposes of exposing inconsistencies or other shortcomings in their claims.  This keeps the proceedings civil and meaningful.  The proposed regulations would essentially set the dogs loose by allowing the representatives of the accused to directly cross-examine, attack and intimidate the survivor with questions that have not been subjected to any prior review by the judicial panel.  The foreseeable result is that survivors will face scathing, wholly irrelevant, abusive and inadmissible questions before the panel even has an opportunity to prevent the abusive questioning.  One simple example where this will certainly cause harm and havoc to survivors is when the accused will invariably seek to use a survivor’s other sexual relationships to prove his own innocence.  Virtually every state and court either prohibits this line of inquiry entirely under so-called Rape Shield statutes or severely limits and closely supervises this line of questioning because of its general irrelevance and abusiveness.  But, by allowing direct questioning by the accused and his representatives, the regulations will undoubtedly result in this type of abuse, which, like bruises, do not simply disappear after the beating stops.

Third, the proposed guidelines change the definition of sexual harassment to be an event, “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

Yet, the question of what constitutes sexual abuse and harassment are so often inextricably connected to the specific, unique and subjective surrounding circumstances and persons involved.  It still matters that a young woman is regularly harassed at school by another student about her gender, body and physical appearance, even if she, for reasons particular to her, is more sensitive or vulnerable to such comments than other young women.  That the harassing comments regularly devastate her are not “objectively” offensive to others should not give the abuser a license to continue, and this is a long-settled principle of American law:  A wrongdoer is never deemed entitled to a healthy, strong victim by any actual or quasi-judicial forum in this country.   The wrongdoer is responsible even if his conduct might not have harmed others.

Finally, the proposed regulations lessen the responsibility of schools to protect students to misconduct that occurs on campus, exempting the wide-range of misconduct that takes place in off-campus fraternity houses, other school-related locations, parties and events, even though a substantial portion of sexual assaults occur in these circumstances,[1]  and such misconduct invariably carries onto campus because that’s where the assailant and survivor reside and attend classes. 

It’s on campus – in the dormitories, classrooms, cafeterias, libraries and at school events – that the survivor faces the presence, threat and terrifying harassment of the assailant and, often, his friends and supporters.  It is this threat, unchecked and unresolved, that causes so many survivors academic harm, exclusion, and other damages.  There are absolutely no legal or moral bases for permitting schools to protect a survivor’s educational rights in this circumstance.

Considerable institutional, societal, and structural barriers are already in place which discourages survivors of assault from reporting their assault.  Likewise, those and other structures provide due process, meaningful hearings, and appeals to persons accused of engaging in sexual violence and misconduct.  The proposed regulations do not fix real problems in the system.  Instead, if implemented, they are sure to further discourage survivors from reporting sexual assaults, harm them when they pursue valid claims, and pave the way for numerous assailants to evade responsibility for their misconduct.

[1] The principal insurer and risk-management company for universities conducted a study that found that 41% of assaults occur at off-campus parties.

 

To offer your input, please go to https://www.regulations.gov and search for Docket ID “ED-2018-OCR-0064” or “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” to begin the process and click on the option to “Comment Now”. Comments are accepted as a text entry or uploaded document, either Microsoft Word or Adobe PDF (text-searchable preferred) and should include the Docket ID. Please note that all submitted comments are made publicly available online, so do not include anything you don’t want to be made public.

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LAWSUIT FILED BY TFNL GROUP’S LAURA DUNN IN ALLEGED MYERS PARK HIGH SCHOOL RAPE

A former Myers Park High School student reported being sexually assaulted by a fellow student in the woods behind the school and officials allegedly did nothing.

 CMS, by and through its officials, failed to take her complaint to investigate or resolve the sexual violence as required under Title IX. 

According the to lawsuit, not only did the above occur, by Mr. Leak also “discouraged Ms. Doe from taking action by suggesting she could be arrested for a false report.” He then turned around and “filed a false report with CMPD claiming Ms. Doe skipped school without any mention of the rape.”

This failure to take the proper steps in responding to the complaint also led to no disciplinary action against the accused.

Read & watch more here: WSOCTV.com and WBTV.com

 

 

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