Blog : Title IX

“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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POTENTIAL CHANGES TO TITLE IX: CAMPUS SEXUAL ASSAULT VICTIMS COULD POTENTIALLY BE CROSS-EXAMINED BY THE ACCUSED

WASHINGTON—New federal rules governing campus sexual-assault cases will require that accused students be allowed to cross-examine their accusers, according to people familiar with a draft of the rules.

The requirement marks a shift from an initial draft of the new rules, leaked in August, which Trump officials are writing to replace a set of Obama-era guidelines they feel didn’t provide sufficient protections for students accused of sexual assault.

The rules, which Education Secretary Betsy DeVos will likely publish in November, will narrow the definition of sexual assault that schools are required to adjudicate and restrict eligible cases to those that occur on campus. The rules will be subject to a comment period before taking effect.

The rule changes fall under Title IX, a 1972 law barring gender discrimination in schools and colleges that receive federal funding.

In the earlier draft, the administration initially proposed providing schools with the option of incorporating cross-examination into their procedures.

The current version would make a cross-examination provision mandatory, though questions could be funneled through a neutral party and students could be seated in separate rooms. The rules would also bar accused students from asking their accusers inappropriate questions, such as details of the accuser’s sexual history.

The modification echoes the goals of some university administrators, men’s rights activists and due-process advocates who believe students accused of behavior that could result in their expulsion should be given more opportunities to defend themselves.

“Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, which advocates for more due process for those accused of campus sexual assault.

Anurima Bhargava, a former Obama Justice Department official who oversaw civil rights enforcement in educational settings, said the Obama administration discouraged the use of cross-examination because it could make sexual-assault victims reluctant to come forward.

“If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” she said.

The modification also reflects a belief espoused by President Trump and some other Republicans that young men—who make up the vast majority of accused students—are often presumed guilty and subjected to an unfair process to determine the truth.

Following Democrats’ demands that Justice Brett Kavanaugh step aside this fall, Mr. Trump suggested that the #MeToo movement is unfairly targeting men who aren’t guilty of any sexual impropriety. He said it is a “very scary time for young men in America” when “you can be guilty of something you may not be guilty of.”

The new rules will make at least one change from the earlier draft that was pushed by victims’ advocates. Rather than allowing only accused students to appeal rulings, the rules will maintain an Obama standard allowing both parties to appeal.

Critics have said that practice too often forced schools to retry accused students who had been already found innocent.

Some officials had advocated publishing the sexual-assault rules ahead of next week’s midterms, arguing that it would be viewed positively by the Republican base, particularly after Justice Kavanaugh’s nomination. Those officials were ultimately overruled, according to people familiar with the matter.

The new Title IX rules, which are currently under final review at the White House, won’t contain a definition of gender, as some officials in other agencies had urged.

The Department of Health and Human Services is still looking at defining gender as an individual’s sex at birth, though if it isn’t defined that way in Title IX, it will be harder to apply such a definition across the federal government.

Trump administration officials are now looking at issuing a legal opinion through the Justice Department stating the administration’s belief that gender under Title IX is determined by a person’s genitals at birth, according to people familiar with their thinking.

But issuing such an opinion, without writing the definition into formal regulations, would put the government on weaker footing.

Once the rules are published, the public will be given a window to comment before they go into effect.

University administrators, in particular, said the old process put undue restraints on their ability to handle assault cases, and that the Obama administration’s stance led schools to fear that any misstep could prompt a costly federal investigation.

The rules she intends to publish will carry the force of law without action by Congress.

The rules are being prepared as sexual assault—and colleges’ responses to it—remains a flashpoint on campuses. Both the accused and alleged victims have faulted institutions for shoddy investigations or biased tribunals.

In a speech last year, Mrs. DeVos likened the campus processes used to adjudicate sexual assault to “kangaroo courts” that followed arbitrary rules and offered inadequate protections to those involved.

“Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved,” she said.

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Douglas Fierberg: “A central purpose of this lawsuit is to compel LSU, Phi Delta Theta and other universities to eliminate dangerous hazing traditions…”

Death of LSU pledge raises questions about fraternity and sorority hazing The Daily Tar Heel | October 22, 2018 | By Ryan Smoot

Title IX is typically known as a gender discrimination prevention tool, but one family is trying to use it for something else.

The parents of Maxwell Gruver, an LSU fraternity pledge who died from alleged hazing last year, have filed a lawsuit against the LSU Board of Supervisors, as the family seeks $25 million in damages for the university’s neglect of Title IX law.

This is the first time Title IX is being used as an argument against hazing.

The lawsuit, coinciding with LSU Police Department police reports, alleges Maxwell was forced to take 10 to 12 pulls of 190-proof liquor during a “Bible Study” hazing event, where pledges had to drink after each incorrect answer about the fraternity.

Phi Delta Theta brothers allegedly left Gruver unconscious on a fraternity couch at midnight, until pledges brought him to the emergency room the next morning. Gruver’s blood alcohol content was .495, six times over the state’s legal limit.

The Gruver family claims LSU dismissed an ongoing culture of fraternity hazing within the university as “boys being boys,” while also imposing harsh punishments against sororities, where hazing is typically considered an anomaly.

“LSU’s policy and practice meant that a sorority accused of hazing its pledges by making them sing songs and do sit-ups and putting whipped cream, syrup and eggs in their hair was given ‘Total Probation’ by LSU – the most severe sanction LSU can impose, short of rescinding its recognition of the sorority,” a press release from the Max Gruver Foundation said. “While Phi Delt’s chapter, which admitted to hazing in 2016, was only placed on interim suspension for a month.”

Ion Outterbridge, the director of UNC’s Office of Fraternity and Sorority Life, said in an email that the University holds fraternities and sororities to equal standards for hazing violations.

“All fraternities and sororities are held to the Honor Code of the University, the same code of conduct all students are held to,” Outterbridge said in an email. “Fraternities and sororities must also comply with the guidelines set forth by the Office of Fraternity and Sorority Life, the bylaws of their national organization and the University Alcohol Policy.”

A sophomore UNC fraternity brother, who wished to keep himself and his fraternity anonymous, said hazing is central to the pledging process at his fraternity. He said speaking to anyone outside the fraternity about hazing results in expulsion from the University chapter, and brothers are normally given a script on what to tell those who ask.

He said hazing is now milder than the stories he has heard from seniors and graduates, but it still was significantly worse than what he had expected and what brothers told him before he accepted his bid.

He said pledges were hazed once a week in a “line-up,” until “hell week” — the last week before initiation — in which line-ups occurred every day.

“Looking back, it’s a memory you want to forget, so I’ve honestly tried to forget and suppress the details,” he said. “Mostly it’s eating and drinking really disgusting things, combined with physical exertion, until you throw up. On the milder side, we’d have cleaning shifts and just have to act subservient to brothers.”

He said he thinks the continuation of hazing at fraternities is primarily rooted in tradition and equity, and that he doubts brothers will ever take the initial step to end hazing completely.

“It’s a mixture of our history and just fairness,” he said. “Like if I went through all of this, why would I stop it here?”

The Gruver family hopes the lawsuit can prompt other universities to take a look at their hazing policies.

“A central purpose of this lawsuit is to compel LSU, Phi Delta Theta and other universities to eliminate dangerous hazing traditions, end the killing of young men and stop lying to students and families who have the right to know information that may save lives,” Douglas Fierberg, the family’s attorney, said.

Two fraternity members entered pleas in September, and a third is set to have a trial in July 2019.

Until then, Title IX’s impact on hazing is unclear.

https://www.dailytarheel.com/article/2018/10/hazing-title-ix-1022 

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National Law Firm Challenges Oregon State University Under Title IX for Imposing Order Against Rape Victim

Washington, D.C.– On May 14, 2017, “Jane Doe” reported to the Corvallis Police that Oregon State University (“OSU”) football player Jordan Alexander Pace had raped her in his dorm room.  Graphic physical evidence was collected during a rape kit conducted at the local hospital that same night, and four felony sex offense charges are currently pending against Pace.

Nevertheless, upon notice of the campus rape, OSU discriminated and retaliated against Ms. Doe by immediately imposing a no contact order against her, the victim.  This order prohibits her from speaking to law enforcement and limits her access to educational opportunities and benefits on campus.  In the aftermath of the campus rape, Pace’s teammates intimidated Ms. Doe on campus, and given the ongoing threat posed by Pace’s continued presence on campus, Ms. Doe felt forced to withdraw from OSU. Not only has OSU kept Pace on campus as a student and student-athlete – the very place Ms. Doe was forced to withdraw from – it recently hired him as a campus employee, though he is in the midst of being prosecuted for four felony sex offense charges against a fellow student.

Today, Ms. Doe filed suit in the U.S. District for the District of Oregon seeking a declaratory judgment against OSU to declare the practice of issuing no contact orders, automatically and without due process, request or necessity, against victims of alleged crimes, as unlawful, discriminatory, and retaliatory in violation of Title IX, federal and state due process rights, federal and state free speech rights, and her rights as a crime victim under Oregon’s State Constitution.

TED Fellow and leading victim rights attorney for campus sexual assault, Laura L. Dunn, through the Fierberg National Law Group, PLLC, and in partnership with local counsel Andrew Lauersdorf and Janis Puracal of Maloney Lauersdorf & Reiner P.C., filed this legal challenge on Ms. Doe’s behalf. “Schools are unjustifiably imposing orders against victims of sexual misconduct to limit their access to education counter to the very protections Title IX guarantees them,” said Dunn, “This is due to the Trump administration’s action to rescind critical Title IX guidance and replace it with a discriminatory interim policy that encourages schools to favor those accused over Title IX’s requirement to protect the victim.”  In January 2017, Dunn led SurvJustice’s legal challenge against Secretary DeVos’ changes to Title IX guidance. That lawsuit currently faces a motion to dismiss from the government in the U.S. District for the Northern District of California.

 Click here to access the case filings.

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