Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Nancy Cantalupo <>]

Some of you may be interested, as individual citizens, in contacting your Senators to support Catherine Lhamon's confirmation to resume her role as Asst Secretary of Civil Rights at ED.  Please see below for helpful links and more info.

In addition, a decision has come down in the VRLC et al. lawsuit challenging the DeVos regs.  The message from the NWLC, which represented the challengers, is below the message re: Lhamon's confirmation vote, and the decision is attached.  As you can see, the court remanded the regs to ED on the issue of cross examination.

Related to issues of cross examination and proper investigation procedures, you may also be interested two amicus briefs filed in the Boermeester case before the CA Supreme Court (https://www.cwlc.org/california-supreme-court-grants-review-in-usc-campus-intimate-partner-violence-case-boermeester-v-carry/): (1) CWLC and ERA advocate for the rights of victims before California Supreme Court | California Women's Law Center; and (2) from the CA DOJ (attached).  Both cite to the ABA recommendations about which I have emailed in the past (campus.pdf (americanbar.org)) and the second also discusses my related book chapter: Civil Rights Investigations & Comprehensive Prevention of Campus Gender-Based Violence by Nancy Chi Cantalupo :: SSRN.

Best,

Nancy

Nancy Chi Cantalupo 甘念齊

pronouns: she/her/hers

See my latest article, The Title IX Movement Against Campus Sexual Harassment: How a Civil Rights Law and a Feminist Movement Inspired Each Other, at my SSRN author site: http://ssrn.com/author=884485

---------- Forwarded message ---------
From: Patel, Shiwali <>
Date: Mon, Jul 19, 2021 at 11:46 AM
Subject: [TitleIXRapidResponse/Strategy] Please support Catherine Lhamon's confirmation to lead ED OCR
To: TitleIXStrategy <>, <>, Women's Community List Serv () <>

Hi all –

 

Some of you may have watched Catherine Lhamon’s hearing and powerful testimony before the Senate HELP Committee last Tuesday.  Her vote in the HELP Committee will be [updated} Tuesday (8/3).

 

Catherine was nominated by President Biden to lead the Department of Education’s Office for Civil Rights (OCR) and she previously led OCR under the Obama administration, where she strongly enforced civil rights protections, including protections for student survivors of sexual violence under Title IX.  Under her leadership, OCR issued the 2014 Q&A on Title IX and Sexual Violence and overall, she has a strong gender justice record.  Given the upcoming rule changes to Title IX, her leadership is more important now than ever to ensure that OCR protects students’ civil rights.

 

Catherine has been attacked by men’s right advocates because of her record supporting student survivors. Unsurprisingly, those groups – the men’s rights advocates –  have relied on disinformation about Catherine’s record and Title IX’s protections addressing sexual harassment in education, and they have also been reaching out to Senate offices expressing their opposition to her confirmation and encouraging their supporters to do the same.

 

Can you please encourage your listservs, members, or followers to contact their Senators asking to confirm Catherine Lhamon for this important role?  If it helps, here is an action alert created by NWLC that you can also share (or you can share our tweet).  Here is a list of Senate staffers who work on education issues (including for members of the Senate HELP Committee).

 

There’s also a social media toolkit here (with sample tweets about her gender justice record), which includes a video ad.

 

Here is the letter that many of your groups signed in support of Catherine’s nomination.

 

Thanks,

 

Shiwali

 

Shiwali Patel (she/her/hers)

Director of Justice for Student Survivors & Senior Counsel

National Women’s Law Center

Mobile: (240) 381-1876

 

 

---------- Forwarded message ---------
From: Patel, Shiwali <>
Date: Thu, Jul 29, 2021 at 6:44 AM
Subject: [TitleIXRapidResponse/Strategy] Ruling in NWLC lawsuit challenging DeVos Title IX rule
To: TitleIXStrategy <>, Title IX Attorneys Group <>, <>, <>

Hi all –

 

Yesterday, we received a decision (attached) from the judge in our lawsuit against the Department of Education challenging the DeVos Title IX rule weakening protections against sexual harassment in schools. We filed our lawsuit in Boston, Massachusetts and represented several individual student survivors and a few advocacy orgs (Equal Rights Advocates, Chicago Alliance Against Sexual Exploitation (CAASE), Victim Rights Law Center (VRLC), and Legal Voice). Some of you may recall that we had our trial last November, and that we challenged most of the provisions of the DeVos rule under the Administrative Procedures Act (APA) and the Equal Protection Clause of the Fifth Amendment of the U.S. Constitution. 

 

The court held that two of our plaintiffs (VRLC and individual Mary Doe) had standing and so could proceed in the suit and that section 106.45(b)(6)(i) of the rule – which prohibits all statements not subject to cross-examination (here is a helpful article explaining the harms of that section) – is unlawful. It held that the remainder of the Final Rule does not violate the APA or the Fifth Amendment. The court remanded the section of the rule prohibiting statements not subject to cross examination to the Department of Education for “further consideration and explanation”.  The court declined to strike the remainder of the rule not because the court agreed with the policy decisions behind the DeVos rule – but because the judge believed that the Department adequately considered and explained each of those changes it made to the rule, including why it rejected many of the negative comments or proposed alternatives presented in the comments.

 

The judge raised some strong points in explaining why 106.45(b)(6)(i) violates the APA, echoing many of the arguments that advocates have made:

• “Neither the Government’s briefing nor this Court’s thorough review of the record indicates that the Department considered or adequately explained why it intended for section 106.45(6)(i) to compound with a respondent’s procedural safeguards quickly to render the most vital and ultimate hallmark of the investigation -- the hearing -- a remarkably hollow gesture.”
• “The respondent may elect not to attend the hearing to avoid the possibility of self-incrimination, and, so long as he or she does not do so in a tortious or retaliatory manner, the respondent may speak freely to his or her peers about the investigation to collect evidence or even to persuade other witnesses not to attend the hearing. See id. §§ 106.45(b)(6)(i)-(ii), 106.45(b)(5)(iii). The respondent could then rest easy knowing that the school could not subpoena other witnesses to appear, Administrative R. at 000322-23, despite the school bearing the “responsibil[ity] for reaching an accurate determination regarding responsibility while maintaining impartial[ity],” id. at 000308.”

• “While the complainant must attend the hearing for his or her evidence to be admitted, he or she can be cross-examined and discredited by the absent respondent’s attorney, with little to no hope of evidentiary rehabilitation. When the foregoing occurs and the school has elected to apply the clear and convincing evidence standard given the “high stakes and potentially life-altering consequences for both parties,” this Court is hard pressed to imagine how a complainant reasonably could overcome the presumption of non-responsibility to attain anything beyond the supportive measures that he or she is offered when they first file the formal complaint.”
• “To so carefully balance and craft the respondent’s safeguards, the definitions, the burdens, and the policies in the run-up to the hearing, just to have the prohibition and definition of absentee statements render the hearing a hollow exercise further demonstrates that the Department failed, even implicitly, to consider the consequences from the prohibition and definition of statements.”

 

What does this mean? 

• Well, first, we see this as a win. Holding that this one provision of the rule is unlawful will have a real impact on a lot of students, their cases, and the ability of their schools to thoroughly investigate their complaints. 
• We aren’t sure what this means for the Department of Education’s next steps.  The judge did not issue an injunction on that section of the rule – or a ruling saying that the Department absolutely cannot enforce that section – but it did hold that it’s unlawful and ordered the Department to give further consideration to it.  That at least suggests that this provision cannot and will not be enforced, so schools should be allowed to consider statements of witnesses who do not subject themselves to live cross examination.
• And finally, we still need the Department of move quickly on issuing an NPRM – the Department indicated in the unified agenda that it plans to publish the NPRM in May 2022, which means that it’ll be a while before the DeVos rule is replaced and a new rule goes into effect (to give context, the DeVos Title IX rule was proposed in November 2018 (NPRM date), finalized in May 2020, and went into effect in August 2020). Stay tuned for updates on our advocacy plans for this.

We also want to thank everyone who supported the lawsuit, filed amicus briefs, submitted declarations, and of course, to the students and advocates who have played a big role in fighting for strong Title IX protections.

Shiwali

Shiwali Patel (she/her/hers)

Director of Justice for Student Survivors & Senior Counsel

National Women’s Law Center

11 Dupont Circle NW | Washington, DC 20036

Office: (202) 319-3030 | Mobile: (240) 381-1876

www.nwlc.org

 

Attachment: DECISION Title IX rule case.pdf
Description: Adobe PDF document

Attachment: CA DOJ Amicus Boermeester.pdf
Description: Adobe PDF document