Raul Jauregui US Department of Education public comment on requiring schools to use anonymized records and pseudonymous litigants
TITLE IX FAIRNESS REQUIRES SCHOOLS TO USE ANONYMIZED RECORDS AND PSEUDONYMOUS LITIGANTS
Department of Education Notice of Proposed Rulemaking
Docket No. ED-2018-OCR-0064, RIN 1870–AA14
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Submitted January 20, 2019
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com
TITLE IX FAIRNESS REQUIRES SCHOOLS TO USE ANONYMIZED RECORDS AND PSEUDONYMOUS LITIGANTS
Draft Rules involved (emphasis added to the proposed privacy provisions):
§ 106.45 Grievance Procedures for formal complaints of sexual harassment.
(b)(3) Investigations of a formal complaint. The recipient must investigate the allegations in a formal complaint. … . When investigating a formal complaint, a recipient must—
(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties;
(ii) Provide equal opportunity for the parties to present witnesses and other inculpatory and exculpatory evidence;
(iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence by guaranteeing the RECIPIENT’S use of ANONYMIZED RECORDS, AND OF pseudonyms DURING LITIGATION, FOR all parties.
Forcing schools to anonymize records and to use pseudonyms in litigation safeguards the dignity of all participants, due process, and fairness under Title IX:
A. The Weaponized Public Record Problem:
Juan and Jane, sophomore and junior respectively, are friends who end up in Jane’s dorm room where they agree to teach each other kissing techniques. Sometime later, Jane accuses Juan of untoward behavior during that meeting. Jane files a formal Title IX complaint invoking these Draft Rules. At this point, Jane, Juan, and every single witness who saw them be friends for years, has to testify and identify themselves on a record that will become public. All participants will learn that both their names and what they say will be disclosed, by their private school, should litigation ensue, because the schools tell them as much (1). With this veiled threat, the school weaponizes the risk of disclosure of identifying information which clearly stigmatizes Jane, Juan, and all their witnesses, as rape victims, rapists, or rape-enablers for the rest of their lives. (2). Thus, the school’s choice to state to Title IX participants the likelihood of disclosure of their identity, coupled with the schools choice to not anonymize and pseudonymize that same identity and record, frustrates Title IX because it chills the willingness of all participants to candidly and fruitfully cooperate with the proceedings. (3).
B. Threatening Title IX Participants with Their Names’ Disclosure is an Unfair Weaponized Practice Allowing Schools to Frustrate Title IX.
Juan had trouble responding to Jane’s Title IX complaint. His classmates were scared to testify, even via text, that they knew that Jane had remained Juan’s friend after the kissing event. Jane had trouble documenting her complaint as her classmates were similarly scared to say that Jane felt helpless that night. Juan and his lawyers, armed with little evidence, friends’ statements and texts where Jane confirmed her friendship with him, tried to show no Title IX violation. But Juan was expelled and he sued the school. Thus, the name of every participant, starting with Juan’s, entered a public docket. (4).
The current practice of exposing the names of complainants, respondents, or witnesses in the public record presents a powerful and re-traumatizing weapon that schools use to chill participants’ cooperation because they lose privacy. (5). Failing to anonymize and pseudonymize detrimentally affects the frequency as well as the quality of the stories of complainants, respondents, and their witnesses because it heightens the shame of these stories. (6) To end the schools’ ability to weaponize their threat of having to publish the record with students’ names, while refusing to anonymize and pseudonymize the same record, these Draft Rules must guarantee all participants’ anonymity and safeguard their privacy by placing that simple redacting obligation on the school. This makes for optimal Title IX participation.
Schools know that their choice to both disclose participants’ identities and refuse to anonymize them places Title IX participants in a double bind: Cooperate; but realize that if you cooperate we may make your name public. (7). This veiled threat further conflicts with and obfuscates the goals of these Draft Rules which clearly seek to protect complainants, respondents, and their witnesses, from schools, not just from each other. First, this practice shifts the burden of gathering evidence to the complainant or to the respondent, which violates Rule § 106.45 (i) clear assignation of that burden on the recipient. The schools shift this burden when they scare the participant and his or her witnesses. (8). Second, this practice, again, scares all parties particularly those expected to counter the claims against respondents, through school action which violates Rule § 106.45 (ii) clear guarantee that the school shall provide equal opportunity. (9). Third, this practice similarly restricts the participant’s ability to gather evidence and thus clearly violates Rule § 106.45 (iii) which states the school shall not so restrict.
C. Forcing the Schools to Anonymize All Records and to Litigate Using Pseudonyms Ends the Weaponized Threat of Disclosing the Participant’s Identities on the Public Record and Yields Optimal Title IX Results.
These Draft Rules recognize and assuage for the fact that Title IX participants, including complainants, respondents, witnesses, and administrators interact in a world of competing ethical, financial and legal interests (10) designed to frustrate the fundamental goal of Title IX, (11) and to deny them their privacy and dignity. (12). The Schools’ notice to participants of potential public disclosure, which happens because the school chooses not to anonymize or pseudonymize the record in the first place, betrays the already traumatized students whose privacy loss tilts Title IX’s level playing field.
The suggested redaction amendment to Rule § 106.45 (iii) safeguards privacy and minimizes re-traumatization as it guarantees every student’s anonymity throughout, forcing the recipient school to use anonymized records and pseudonyms in all related proceedings including litigation. This rule levels the playing field for complainants, respondents, and witnesses, encouraging full, candid and willing testimony from every participant at every stage. Removing the weaponized veiled threat of the future and permanent public stigma that identifying students on the public record causes, is optimal Title IX practice. To do so these Draft Rules must force the schools to anonymize and pseudonymize the names of all participants in all Title IX processes including litigation.
Thanks for your attention to this personal concern over the Draft Rules. None of this public comment constitutes law practice, opinion of law, or a legal advertisement.
/s/
Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
ENDNOTES:
1. FERPA allows schools to disclose student records, without consent, to the following parties (including respondents suing their schools who need these records to establish their claim and thus issue subpoenas for them) or under the following conditions (34 CFR § 99.31):
School officials with legitimate educational interest;
Other schools to which a student is transferring;
Specified officials for audit or evaluation purposes;
Appropriate parties in connection with financial aid to a student;
Organizations conducting certain studies for or on behalf of the school;
Accrediting organizations;
To comply with a judicial order or lawfully issued subpoena;
Appropriate officials in cases of health and safety emergencies; and
State and local authorities, within a juvenile justice system, pursuant to specific State law. [Emphasis added].
Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. See generally:
https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
See also, American Bar Association Criminal Justice Section, TASK FORCE ON COLLEGE DUE PROCESS RIGHTS AND VICTIM PROTECTIONS: RECOMMENDATIONS FOR COLLEGES AND UNIVERSITIES IN RESOLVING ALLEGATIONS OF CAMPUS SEXUAL MISCONDUCT 8 (June 2017) at 2 recommending that with respect to confidential information that may be gathered during an investigation [not including parties’ identities], “[s]chools should put provisions in place to guard against the improper disclosure” of such information, including advising parties about the “scope and limits of the school’s ability to maintain confidentiality.”
2. The schools know that linking in the public record the name of any participant in a Title IX proceeding stays as a potential stigma for those participants for the rest of their lives. This is the nature of life and privacy in the internet age. See, Elise Young, EDUCATIONAL PRIVACY IN THE ONLINE CLASSROOM: FERPA, MOOCS, AND THE BIG DATA CONUNDRUM, Harvard Journal of Law & Technology Volume 28, Number 2 Spring 2015, available at:
http://jolt.law.harvard.edu/articles/pdf/v28/28HarvJLTech549.pdf.
See, e.g., In re Google Inc. Gmail Litig., No. 13-MD-02430, 2014 WL 1102660, at *1–*3 (N.D. Cal. Mar. 18, 2014) (describing Google Apps services for educational institutions, including student email services, and plaintiffs’ allegations that Google processed student email content and metadata to create secret user profiles).
3. In addition to the public stigma that Title IX participants risk, consider that a Title IX investigation inherently traumatizes and re-traumatizes all its participants’ in their psychology because it conjures memories that constitute trauma. The current Diagnostic and Statistical Manual of Mental Disorders specifically identifies actual or threatened sexual violence as a traumatic event. AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM-5, at 274 (5th ed. 2013) (“[D]irectly experienced traumatic events . . . include . . . threatened or actual sexual violence (e.g., forced sexual penetration, alcohol/drug facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking).”). Participants in a Title IX investigation come in with this double burden, a fear of public stigma, and a personal pain in retelling their stories. These combined experiences affect their recall even assuming the cross-examiner will treat them kindly. The tradition of a sex-crime cross-examination turning “brutal” and improper has received extensive attention in the legal ethics field. See, e.g., David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, 90 COLUM. L. REV. 1004, 1026-35 (1990) (arguing that defense lawyers generally should not brutally cross-examine rape victims as a defense tactic).
4. Out of this large cohort of reverse Title IX cases, consisting of 62 complaints in federal and state courts, 24 of them (that is 38.71% of the large sample) started with the name of the complainant on the caption. The lack of anonymization in Title IX forced at least 38.71% of the complainants, who seek to clear their name, to link it forever to the allegations that caused harm in the first place. There is no reason to not file as John Doe when the school has anonymized the record and is forced to pseudonymize the litigation.
Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018);
Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017);
Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016);
Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 2018);
Doe v. Univ. of So. Miss., No. 2:18-cv-00153 (S.D. Miss. Sept. 26, 2018);
Doe v. Syracuse Univ., 2018 U.S. Dist. LEXIS 157586 (N.D.N.Y. Sept. 16, 2018);
Doe v. Brown Univ., 2018 U.S. Dist. LEXIS 144967 (D.R.I. Aug. 27, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 141423 (M.D. Pa. Aug. 21, 2018);
Doe v. Geo. Wash. Univ., 2018 U.S. Dist. LEXIS 136882 (D.D.C. Aug. 14, 2018);
Rowles v. Curators of the Univ. of Miss., No. 2:17-cv-04250 (W.D. Mo. July 16, 2018);
Doe v. Univ. of Miss., 2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14, 2018);
Doe v. Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018);
Doe v. DiStefano, 2018 U.S. Dist. LEXIS 76268 (D. Colo. May 7, 2018);
Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. May 2, 2018);
Doe v. Ohio St. Univ., 2018 U.S. Dist. LEXIS 68364 (S.D. Ohio Apr. 24, 2018);
Roe v. Adams-Gaston, No. 2:17-cv-00945 (S.D. Ohio Apr. 17, 2018);
Elmore v. Bellarmine Univ., 2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29, 2018);
Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 2018);
Doe v. Marymount Univ., 297 F. Supp. 3d 573 (E.D. Va. 2018);
Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 36350 (S.D. Ohio Mar. 6, 2018);
Gischel v. Univ. of Cincinnati, 302 F. Supp. 3d 961 (S.D. Ohio 2018);
Powell v. St. Joseph’s Univ., 2018 U.S. Dist. LEXIS 27145 (E.D. Pa. February 16, 2018);
Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592 (D.N.J. Jan. 17, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 3184 (M.D. Pa. Jan. 8, 2018);
Painter v. Adams, 2017 U.S. Dist. LEXIS 171565 (W.D.N.C. Oct. 17, 2017);
Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. Ill. Sept. 20, 2017);
Rolph v. Hobart & William Smith Colls., 271 F. Supp. 3d 386 (W.D.N.Y. Sept. 20, 2017);
Doe v. Case Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 (N.D. Ohio Sept. 1, 2017);
Doe v. Trs. of the Univ. of Pa., 270 F. Supp. 3d 799, 817 (E.D. Pa. 2017);
Gulyas v. Appalachian St. Univ., 2017 U.S. Dist. LEXIS 137868 (W.D.N.C. Aug. 28, 2017);
Nokes v. Miami Univ., 2017 U.S. Dist. LEXIS 136880 (S.D. Ohio Aug. 25, 2017);
Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 (M.D. Fl. July 20, 2017);
Tsuruta v. Augustana Univ., No. 4:15-cv-04150 (D.S.D. June 16, 2017);
Doe v. Univ. of Notre Dame, 2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8, 2017);
Doe v. Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017);
Doe v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017);
Doe v. Ohio St. Univ., 239 F. Supp. 3d 1048 (S.D. Ohio 2017);
Neal v. Colo. St. Univ. – Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb. 16, 2017);
Doe v. Lynn Univ., 2017 U.S. Dist. LEXIS 7528 (S.D. Fl. Jan. 19, 2017);
Doe v. W. New England Univ., 228 F. Supp. 3d 154 (D. Mass. 2017);
Doe v. Alger, 228 F. Supp. 3d 713 (W.D. Va. 2016);
Collick v. William Paterson Univ., 2016 U.S. Dist. LEXIS 160359 (D.N.J. Nov. 17, 2016);
Doe v. Brown Univ., 210 F. Supp. 3d 310 (D.R.I. Sept. 28, 2016);
Ritter v. Okla. City Univ., 2016 U.S. Dist. LEXIS 95813 (W.D. Okla. July 22, 2016);
Doe v. Weill Cornell Med. Coll. of Cornell Univ., No. 1:16-cv-03531 (S.D.N.Y. May 20, 2016);
Doe v. Bd. of Regents of the Univ. Sys. Of Ga., No. 15-cv-04079 (N.D. Ga. April 19, 2016);
Doe v. George Mason Univ., No. 1:15-cv-00209 (E.D. Va. Feb. 25, 2016);
Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 161297 (N.D.N.Y. Feb. 24, 2016);
Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016);
Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016);
Marshall v. Indiana Univ., 170 F. Supp. 3d 1201 (S.D. Ind. 2016);
Doe v. Pa. St. Univ., No. 4:15-cv-02072 (M.D. Pa. Oct. 28, 2015);
Sterrett v. Cowan, 2015 U.S. Dist. LEXIS 181951 (E.D. Mich. Sept. 30, 2015);
Doe v. Middlebury Coll., 2015 U.S. Dist. LEXIS 124540 (D. Vt. Sept. 16, 2015);
Doe v. Salisbury Univ., 123 F. Supp. 3d 748 (D. Md. August 21, 2015);
Doe v. Washington and Lee Univ., 2015 U.S. Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015);
Tanyi v. Appalachian St. Univ., 2015 U.S. Dist. LEXIS 95577 (W.D.N.C. July 22, 2015);
Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. Md. 2015);
King v. DePauw Univ., 2014 U.S. Dist. LEXIS 117075 (S.D. Ind. August 22, 2014);
Benning v. Corp. of Marlboro Coll., 2014 U.S. Dist. LEXIS 107013 (D. Vt. Aug. 5, 2014);
Harris v. St. Joseph’s Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 13, 2014);
Wells v. Xavier Univ., 7 F. Supp. 3d 746 (S.D. Ohio 2014);
5. Placing a privacy shield to protect the dignity of participants in legal processes, particularly when it comes to publication of their sexual conduct, is not a new concept. The purpose of Federal Rule of Evidence 412 has been and remains to:
“safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.”
FED. R. EVID. 412 (advisory committee’s note to 1994 amendment).
Title IX has adopted a view in harmony with FRE 412. OCR guidance from 2014 states that the complainant’s general sexual history should not be the subject of inquiry and those fact finders should not draw an inference of consent even if the parties had a pre-existing relationship. See, CATHERINE E. LHAMON, U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE (Apr. 29, 2014), available at:
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
If both the Federal Rules of Evidence and Title IX guidance already recognize the need to safeguard this sexual privacy it makes harmonious sense to expand that recognition and require the school to anonymize and pseudonymize all records at all stages of Title IX proceedings because that simple fix accomplishes that same.
6. The Department of Justice as well as every school knows that the shame that accompanies rape allegations prevents reporting them, as well as defending against them. Thus, enhancing the privacy of those speaking on these allegations, through anonymization and pseudonymization, makes sense in the context of Rule § 106.45’s clear mandate to put the grievance procedure’s burdens on the school, not on the students, because their personal shame cripples the requisite reporting and privacy assuages this shame. As the Krebs study put this shame’s impact:
“ For rape victims in particular, a commonly cited reason for not reporting the incident to any police agencies is not wanting family members and others to know about the victimization (38.9% of rape victims in the NCWSV cited this as a reason for failing to report the event).”
Christopher P. Krebs, Ph.D et al, The Campus Sexual Assault (CSA) Study, (October, 2007) at 2-9, available at:
https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf
The devastating power of the shame which participants in these proceedings endure cannot be underestimated. See, e.g., Jeremy Bauer-Wolf, Suicide and Title IX, Inside Higher Ed, May 2, 2017, available at:
7. The trend in federal courts clearly favors creating a public record of Title IX proceedings during which the respondent is entitled to the basic due process of cross examining the complainant and the complainant’s witnesses to evaluate their credibility given that the respondent’s expulsion and permanent stigma are at stake. The 6th Circuit recently established this right in its Doe v. Baum decision, (903 F.3d 575, 582 (6th Cir. 2018) citing Doe v. University of Cincinnati, 872 F.3d 393, 399-402 (6th Cir. 2017)), a right also established in recent state court decisions including California’s Doe v. Univ. of S. Cal., No. 3271834, 2018 WL 6499696 at 14* (2018). Thus, public, on the record, cross examination of the complainant and her witnesses should become the Title IX norm across the US unless some litigant in district court seeks to split the Circuits to make this a question ripe for writ of certiorari to the US Supreme Court. Nothing in these decisions prevents the schools from assuaging this traumatizing process by releasing students from the weaponized double bind contained in the school’s refusal to anonymize records and pseudonymize the identities of litigants.
The newest available student-conduct manual, from the University of Michigan, evidences the double bind Title IX participants face as it provides that the school shall create and maintain a single an official record “The University shall keep an official transcript of the hearing and any other recording is prohibited” (Note 6 supra at 32) and seems to suggest compliance with Baum’s cross-examination mandate stating that:
“A typical hearing may include brief opening remarks by the hearing officer; questions posed by the hearing officer to one or both of the parties; follow-up questions by one party to the other (typically with the Respondent questioning the Claimant first); questions by the hearing officer to any witness; and follow-up questions by either party to any witness (typically with the Respondent questioning the witness first).”
University of Michigan: Interim Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence. The manual is set to go into effect January 9, 2019 and is available at:
https://studentsexualmisconductpolicy.umich.edu/files/smp/SSMP_Policy%2012-12-18.pdf
The pedagogical and legal concepts, if any, that suggested to the University of Michigan that a student claiming to be a rape victim should be personally questioned by a student alleged to be the rapist, in a school proceeding, is not considered in this comment.
8 Some schools have recently continued to recognize the importance of anonymity from the information gathering stage because, arguably, they understand that without implementing strong privacy the school shifts its burden to both the complainant and the respondent. For example, the UC system’s working group advice on confidentiality in process suggests:
“While the identities of the parties directly involved (complainant, respondent, and witnesses) must be disclosed to one another to ensure basic fairness, no party’s identity should be revealed to staff/faculty not involved in the process, the wider student body, or to the public by any of the offices or officials involved with the process.”
Lara Stemple, et. al, Recommendations of working group appointed by Gov. Jerry Brown following his veto of SB 169, Nov. 14, 2018, (at 1) available at:
http://www.ivc.edu/policies/titleix/Documents/Recommendations-from-Post-SB-169-Working-Group.pdf
9 The risk of loss of equal opportunity exists from the complaint stage. Participants risk stigma from the first moment they speak on the Title IX process. That stigma chills their speech and robs both complainants and respondents of equal opportunity to prove their story through their words and those of their witnesses. Title IX guidance mitigates this risk through 18 year old privacy requirements that simply no longer meet their original goal because the identities of the speakers are inevitably at risk of disclosure through litigation and online. OCR’s 18 year old guidance tells schools that:
“In all cases, schools should make every effort to prevent disclosure of the names of all parties involved—the complainant, the witnesses, and the accused—except to the extent necessary to carry out an investigation.”.
U.S. DEPT. OF EDUC. OFF. OF CIVIL RTS., REVISED SEXUAL HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES (2001) available at:
However, in this, new era of Google and Reverse Title IX litigation, OCR’s privacy guidance fails and the only way to meet its goal requires record anonymization and pseudonymous litigation.
10. These Draft Rules recognize that at least three competing interests collide during a Title IX process. First is the complainant’s interest and second is the respondent’s. But there is a third competing interest as both complainants and respondents have claims against the administrators and the school. The Title IX process means that administrators and schools suffer in reputational and brand loss through every Title IX complaint or instance of a Title IX violation, because they arise from a system they run and which reflects on their skill as educators.
Distressed schools and their staff then become subject to the advice of their lawyers who will treat them in perhaps a novel way—not as part of the educational bureaucratic establishment, but rather as they treat other, more corporate clients. A potential legal ethics problem arises next, when advising these parties--overzealous lawyering for financial or policy reasons. In one of two unethical versions of Luban’s Nightmare of lawyering jurisprudence, lawyers who are "economically dependent on their clients or in some cases ideologically aligned with them ... spin the law to support whatever the client wishes to do." DAVID LUBAN, A Different Nightmare and a Different Dream, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, (2007) at 159.
This potential risk of economic dependence of outside counsel on the school might explain why out of the cohort of 130 reverse Title IX federal cases filed between January 2011 and December 2016, schools unwisely chose to immediately attack the respondent-plaintiff through a motion to dismiss, rather than choosing to immediately apologize—the optimal path. The statistics in Proskauer’s recent Title IX report, which comes from Proskauer’s Education Group, not from a pro-plaintiff practice, argue that well counseled schools facing reverse Title IX litigation should immediately seek to settle, as only 37.3% of motions to dismiss were granted, with a mere 28.5% of overall cases dismissed.
See, Proskauer’s Education Group: “Title IX Report, The Accused” available at:
https://www.proskauer.com/report/title-ix-report-the-accused-08-28-2017
11. The goal of Title IX is simply stated but hardly achieved because, for one thing, in the Title IX world conflicts arise as its enforcement involves upholding the complainants’ or the respondents’ human dignity by giving voice to either’s subjectivity which amounts to an assault on the human dignity of the other and his or her subjectivity. Title IX does not have a glib “he said – she said” problem, rather, it conjures a profound “I am – you are” narrative. In that context, Title IX seeks to protect people from discrimination based on sex in education programs or activities that receive Federal financial assistance. See, e.g., the Department of Education’s Office of Civil Rights statement on Title IX available at:
https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html
12. Privacy (of a student), in the legal ethical normative, exceeds the provisions in and enforcement of FERPA which generally allow students to inspect, review, and be notified of record disclosure (20 U.S.C. § 1232g; 34 CFR Part 99), and places great emphasis on electronic data collection. See. e.g., EPIC’s model Student Privacy Bill of Rights available at:
https://www.epic.org/privacy/student/bill-of-rights.html
Dignity (of a student), in the legal ethical normative means "having a story of one's own"-it is having a subjective view of the world in which one is at the center. DAVID LUBAN, A Different Nightmare and a Different Dream, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, (2007) at 70-71. This subjectivity includes persons' "perceptions, their passions and sufferings, their reflections, their relationships and commitments, what they care about. (id. at 76) To honor human dignity is to presume that each person has a story to tell and to take each person's cares and commitments seriously. To deny someone's human dignity is to "treat[ ] her story as if it didn't exist, her point of view as if it were literally beneath contempt." (id. at 69).