The New Title IX Rules, NT9Rs, make it Better for Everyone. It's more like a Courtroom.
An important part of the NT9R speaks to the difference between being guilty of something sexually trashy in a court of criminal law, and being in violation of your school’s sexual misconduct policy—these are not the same creatures; while its somewhat difficult (absent systemic biases on race and gender) to be convicted of a criminal act concerning sexual acts, it is somewhat easy to be expelled and to have your life ruined for some questionable acts as a student, with a student, in a school setting. Consider this USC student who is not criminally liable but still has to invest thousands to defend his ability to graduate from USC:
“The woman later told the police she did not remember the encounter, and in May, prosecutors charged the male student, Armaan Premjee, 20, with rape. But a California judge dismissed the case last week after reviewing security video from the Banditos nightclub in Los Angeles and the woman’s dorm.
The videos showed the woman leading Mr. Premjee from the club, taking his photograph, following him into an Uber and, at her dorm, swiping an access card and allowing him inside.
The judge said during a preliminary hearing last week that he believed that the sex was consensual and that the videos were a “very strong indication” the woman was the initiator, according to reports”.
Judge Drops Rape Case Against U.S.C. Student, Citing Video Evidence.
Hanah Alani, The New York Times, August 5, 2017, available at: https://www.nytimes.com/2017/08/05/us/usc-rape-case-dropped-video-evidence.html
The point here is that no matter how strong the actual video evidence USC is very likely to still expel the male student. The NT9Rs give him the opportunity to ask the female something like “well, how could you not have consented to have sex with me—look at all the videos and tell me how many times you could have said ‘no’ and instead either said or acted saying ‘yes’”. The right to those questions, under the NT9Rs is his best chance to stay at USC.
To be fair, (as a Bruin), the same problem exists at the UC system, and the NT9R’s will address exactly the same systemic failures that are inherent to the “single investigator” model. Under the NT9R’s this Doe will see the evidence which will help his legal team defend his good name:
“Doe was accused of engaging in sexual harassment and stalking another student between September 2016 and February 2017, according to the lawsuit. He cooperated with the investigation and asked to see evidence, but the evidence was not disclosed.
He was suspended for two years, but appealed the decision on the basis that there had been a procedural error, the decision was unreasonable and not supported by substantial evidence and the discipline was disproportionate to the findings.”
“According to the lawsuit, the University determined that Doe was not responsible for the stalking and his suspension was reduced to one year. He appealed the decision again, claiming there was a lack of evidence for the sexual harassment claims he was still being suspended for.”
Former student files lawsuit against UC alleging lack of due process in Title IX case
Julia Shapero, The Daily Bruin, August 6, 2019, available at: https://dailybruin.com/2019/08/06/former-student-files-lawsuit-against-uc-alleging-lack-of-due-process-in-title-ix-case
The NT9R’s even the playing field as it has tilted, significantly, against all males, not just students but teachers as well, all of whom are just a little bit better able to maintain their careers and their good names under this new fairness regime, and avoid these life-changing dramas which were routine for students and faculty in the pre-NT9R era:
“According to the suit, a female undergraduate student at Berklee, enrolled in Farzinpour’s conducting course in the summer of 2019 after returning from a medical leave.
While taking the course, the student repeatedly stayed after class to speak with Farzinpour about his incorporation of yoga, meditation, and mindfulness practices into his conducting and music interests.
Farzinpour, who is of Iranian descent, agreed to get food and a drink with the student July 24, 2019, after her repeated requests to discuss yoga and meditation with him. During their meeting, she questioned him about his sexual relationship with his wife, spoke of her breast size, steered the conversation toward sex, and suggested that they get a hotel room, the suit says.
Farzinpour missed his train home to Providence and the two grabbed martinis at another establishment as he waited for the next train.
Days later, the student filed a complaint with Kelly Downes, the chief equity officer/Title IX coordinator of Berklee’s Equity Office. She alleged that Farzinpour made “numerous unwelcome sexual advances, including commenting on her physical appearance, namely her breasts and body shape; “expressing a sexual attraction towards her; and suggesting that they engage in sexual activity.””
Providence composer sues Berklee over firing amid sexual misconduct allegations. Katie Mulvaney, The Providence Journal, June 11, 2020, available at: https://www.providencejournal.com/news/20200609/providence-composer-sues-berklee-over-firing-amid-sexual-misconduct-allegations
Under the NT9R’s this professor will both get to question the undergraduate, ask her something like “what part of you asking me about my wife is not you harassing me?” and will also get to see the full file on how the Title IX coordinator documented this. Both of those, fundamental and routine rights in both criminal and civil procedures, have only become the norm for everyone in schools under the NT9R’s.
It is unfortunate, however, that the DOE’s regulations make it clear that the NT9R’s are not retroactive:
“Effective Date of the Final Rule
Question 1: Can you please clarify whether the new Title IX rules that went into effect on August 14, 2020, will be applied retroactively?
Answer 1: The Title IX Rule will not be enforced retroactively. In the Preamble to the Rule at page 127, the Department states unambiguously that the Department will not enforce these final regulations retroactively.
US Department of Education, Office of Civil Rights, Questions and Answers Regarding the Department’s Final Title IX Rule, September 4, 2020, available at: https://www2.ed.gov/about/offices/list/ocr/docs/qa-titleix-20200904.pdf
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
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