HigherEducationLaw was started to provide a space for sharing information and exchanging ideas and opinions that span the broad spectrum of legal issues that arise at colleges and universities. In addition to attorneys and scholars focusing on legal issues affecting colleges and universities, we hope that the topics covered and opinions expressed will be of value to higher education practitioners.
The following guest post is from Michael Thad Allen.He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.
The Attorneys General of 18 states collectively submitted an extensive 72-page commentopposing rules proposed by the Department of Education for Title IX.
Led by the Commonwealth of Pennsylvania (Josh Shapiro), California (Xavier Becerra), and New Jersey (Gurbir S. Grewal), these chief legal officers of their respective states have gone on record attacking some of the most fundamental due process protections that are otherwise the norm for defendants in the civil and criminal justice system.
The practical effect of the position they advocate would be to create a unique space -- college campuses -- and a unique class of alleged victims and accused – students in higher education -- to whom tried and true procedures for deciding guilt in cases of serious allegations do not apply.
The Attorneys General would do away with the presumption of innocence, as Connor Friedersdorf of the Atlantichas pointed out. This maxim is written into the United Nations’ Universal Declaration of Human Rights (Article 11). The Attorneys General consider it expendable for Title IX.
It is not uncommon for activists to take such positions. It is very unusual to hear it coming from the chief legal officers of states that account for almost 40% of the United States’ population.
At least for university Title IX actions, these Attorneys General would dispense with several other fundamental principles that apply everywhere else in the US justice system.
They argue that schools should not have to provide evidence to accused students that the school deems “irrelevant.”
They oppose cross-examination because it might prove too expensive to implement and on the grounds that it may “harass the respondent, retraumatiz[e] the complainant, and further deter survivors from filing formal complaints.”
No doubt, few ever find cross-examination pleasant. Yet our civil and administrative justice system provides for cross-examination in every other analogous context, including K-12 education.
For example, no similar movement is gathering steam to cancel due process rights in state expulsion statutes. Laws have long protected K-12 students who face expulsion, and they generally include at least some form of cross examine right, the right to notice, the right to evidence, and the right to an attorney. This is not controversial.
The National School Boards Association also submitted a comment to the proposed Title IX rules. School Boards argue for flexibility to adapt cross examinations to the K-12 setting, but they do not categorically condemn its application. One reason may be that cross examination in K-12 expulsion hearings is already required by statutes such as the laws of Pennsylvania, California, and New Jersey, whose Attorneys General now oppose cross examination rights in the Title IX context.
Title IX is also universally compared to Title VI and Title VII of the Civil Rights Act in which due process rights are not generally controversial. These laws prevent discrimination by employers (VII) and by recipients of federal funding (VI).
The Attorneys General take the reasonable position that the preponderance of evidence standard holds for these civil-rights laws, so why not Title IX? Under “preponderance,” it is enough that proof of guilt is only 50.001% convincing or “more likely than not.”
But the Attorneys General go further. They argue that the Department of Education “has no authority to depart from the usual allocation of risk between parties to grievance proceedings” in other kinds of civil rights disputes. They are silent as to why this objection does not apply to the presumption of innocence, cross examination, or other due process rights in grievance proceedings that protect the civil rights of Americans.
Many young women or men enter the workforce directly after high school. Title VII (making discrimination by employers illegal) does not view them to be too harassed or traumatized to withstand cross-examination; but the Attorneys General and other advocates would bestow such status on college students of the same age.
The Attorneys General add their considerable authority to social movements advocating for a rollback of due process rights in Title IX. On close inspection, the only practical effect would be to roll back protections for college and university students in higher education.
Federal courts are increasingly rejecting these rollbacks as students seek the help of attorneys and challenge universities and colleges in court. The reason is that they compromise victims no less than accused students.
College basketball is no stranger to public controversy. In fact, an episode of a currently-airing ESPN docu-series, "Basketball: A Love Story," retells the story of the 1950s point-shaving scandal involving multiple players on 7 college basketball teams. Point-shaving schemes in the basketball programs at Boston College, Tulane, and Northwestern in the 1970s, 1980s, and 1990s, respectively, would eventually lead to federal investigations, legal proceedings, and jail sentences for those involved.
Although pernicious, and even pervasive at an earlier time, point-shaving has become a remote concern in modern college basketball. The greatest concern in college basketball today is the legitimacy of the recruitment process, which has long been suspected of violating the NCAA's requirement of amateur status for college athletes. A window into the rampant corruption in the recruitment process--including large sums of money transferred to recruits by a shoe company--was blown open when federal prosecutors and the FBI investigated Adidas' under-the-table deals with college basketball recruits.
This week, a jury found that two Adidas executives and a sports agent were guilty of wire-fraud. Interestingly, the argument employed by the prosecution, was that the defendants "not only deceived universities into issuing scholarships under false pretenses, they deprived the universities of their economic rights and tarnished an ideal which makes college sports a beloved tradition by so many fans all over the world.”
While it is hard to imagine how universities with sports programs that were at least complicit with these practices could have been victimized, it is absolutely true that the economic rights of the seven universities with basketball programs under investigation (Arizona, Auburn, Louisville, North Carolina State, Miami, Oklahoma State, and Southern California) were hindered as a result of the unscrupulous actions of individuals within the basketball program, a reminder that college sports programs exist because of universities, and not the other way around.
It remains to be seen how the NCAA will penalize the programs involved in the scandal, as they hold off on their investigation while the federal investigation is still playing out. What is certain is that the result will have lasting impacts on how the future of the sport, the first of which may well be the death knell of the one-and-done rule when the NBA announced last week that the best high school prospects could forgo one year in college to receive a $125,000 salary by entering the NBA’s developmental G-league. Perhaps, with this blanket rule impacting all college basketball programs, college basketball can begin to repair its image by cleaning up its act.
Marc Tracy, Three Found Guilty in N.C.A.A. Basketball Recruiting Scheme, New York Times, Oct. 24, 2018, https://www.nytimes.com/2018/10/24/sports/ncaa-basketball-adidas-guilty.html.
The following guest post is from Michael Thad Allen. He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.
In August, an unusual legal scandal prompted soul searching among proponents of the #MeToo movement and advocates of Title IX.
New York University found that a prominent feminist scholar, Avital Ronell, age 66, had sexually harassed her male graduate student, Nimrod Reitman, half her age (who is gay and has since married a man). Given that Professor Ronell also identifies herself as queer, the story brought enough titillation and hypocrisy to light to make a spring in the moral imagination of almost anyone go “boing-oing-oing.”
In July of the previous year, Reitman filed his Title IX complaint alleging sexual harassment, stalking, and sexual assault over the course of the three years he had pursued his PhD as Ronell’s advisee. He claimed, among other things, that she contacted him at all hours, forced him to read to her in bed, kissed him, engaged in “spooning” by pushing her buttocks into his groin, and placed his hands on her breasts. But after an 11-month investigation, NYU found Ronell responsible only for sexual harassment but absolved her of sexual assault and stalking.
In June 2018, a confidential petition of Ronell’s supporters to the President and Provost of NYU surfaced in the blog of Chicago law professor Brian Leiter. It had circulated confidentially since May among her colleagues throughout academia.
The letter was authored by President Elect of the Modern Language Association, Judith Butler, a fellow feminist academic luminary. She and numerous other signatories made clear that, in the stratospheric layer of contemporary academic feminists, this Title IX action against one of their own was a legal “nightmare.” Among other things, they announced, should NYU find Professor Ronell responsible and terminate her, “the injustice would be widely recognized and opposed.”
Out of one side of their mouths, Ronell’s supporters assassinated Reitman’s character. Shockingly, the letter admitted to knowing nothing about the facts of the case, but the professors nevertheless accused Reitman of “malicious intention.” Out of the other side of their mouths, they vouched for the “grace, the keen wit, and the intellectual commitment of Professor Ronell.” Some, such as University of Texas Professor Diane Davis, also declared the entire matter to pervert Title IX (Davis has since equivocated about this statement).
Davis was not alone in speculating whether a complaint brought by a man against an avowed feminist was hijacking Title IX “in a way that hurt women.” But to their credit, others, such as the founder of the victim-side advocacy organization Know Your Title IX, Dana Bolger, robustly defended Title IX as a civil rights statute that protects everyone from discrimination on the basis of sex—including men like Reitman. They have also pointed out the parallels between defenses mounted on behalf of the likes of Harvey Weinstein and the apologetics and victim blaming that Ronell’s supporters are mobilizing in her defense.
The next act in this drama came in mid-August. Reitman filed suit in New York state court against Professor Ronell and NYU. The facts of Reitman’s case are well pleaded, and the Complaint contains a wealth of assertions that had not previously come to light. Excerpts from contemporaneous emails flesh out allegations of sexual assault and stalking.
Predictably, one of Professor Ronell’s defenses has been that all her interactions with Reitman were consensual. Theirs was, so Ronell, a harmless discourse between “a gay man and a queer woman, [with] a penchant for florid and campy communications.” Before the Complaint, the media had quoted only a few snippets from these communications. The sheer volume of direct quotations in the Complaint and their earnest sappiness cast more than a little doubt on Ronell’s proffered explanation. They don’t seem “campy.” They seem mawkish.
Ronell is apparently an inexhaustible fountain of pet names and pillow talk. To quote just a few examples, she calls Reitman “sweet companion-Prince,” “my astounding and beautiful Nimrod … sweet kisses & champagne.” She pines for him: “Planting kisses firmly, holding you throughout in gentle accompaniment.” She asks, “my special one … are you in the afterglow of our enchanted visit…” “I feel you with me and you’re preparing already my bubblebath …” These kinds of statements go on and on, paragraph after quoted paragraph.
Contemporaneous communications between Reitman and others also show that he complained about Ronell’s behavior and anguished about how to extricate himself from her domination.
At least at the pleadings stage, this evidence tells a consistent story. NYU and Ronell will have a chance to tell their version of events, but the volume of facts in the 58-page complaint begs the question how NYU could have absolved Professor Ronell of charges of sexual assault and stalking.
To date, however, no one has analyzed the legal aspects of the case. One question jumps out at anyone who has practiced in the Title IX field: namely, why Reitman’s legal team limited his Complaint to state-law claims only. There is no Title IX claim against NYU.
Title IX provides a private right of action against the university, at the very least on a theory of hostile environment. Reitman appears to have a good retaliation claim as well. Multiple NYU professors signed the Butler letter, impugning Reitman’s “malicious” motivation and threatening to oppose sanctions against Ronell—at least one being a former NYU Dean of the Graduate School.
And Reitman does include well-pleaded claims for hostile environment, retaliation, and other theories of discrimination. Curiously, he does so only under the municipal code of New York City (under the city’s Human Rights Law, NYC Administrative Code § 8-107).
He also pleads tort claims of negligent infliction of emotional distress and negligence in hiring, supervision, and retention, but no breach of contract—which should also be available given that the policies and handbooks of the university constitute a binding contract under New York law.
There are good reasons why an experienced plaintiff’s attorney might want to avoid a federal Title IX claim. Reitman’s case as now pleaded will stay in state court and avoid removal to the Southern District of New York. This may be a conscious attempt to maintain a “home-field advantage” in the state court system.
It is also possible that Reitman’s attorney is not familiar with potential claims and defenses under Title IX. Perhaps tellingly, the Complaint asserts that Professor Ronell was the subject of a prior Title IX investigation for raciallydiscriminating against another NYU student. But Title IX does not cover race discrimination. (Although such discrimination is clearly actionable under Title VI of the Civil Rights Act of 1964).
Reitman’s lead attorney, Donald Kravet, is an experienced New York civil litigator. His practice appears to concentrate chiefly on state-court commercial cases. But he is clearly no stranger to federal court. At this stage, he also has plenty of time to amend the Complaint. The progress of Reitman’s case will continue to be interesting, not only because of contemporary debates over sexual harassment and Title IX but also from a procedural standpoint.
Reverse discrimination, meritocracy, and color-blind are terms often used in arguments against affirmative action, especially regarding college admissions. Critics say affirmative action is an outdated policy that results in underserving students and lowering the academic prowess of an institution. Many opponents even claim they share Dr. Martin Luther King’s dream of a world without race and that affirmative action is hindering our country from reaching that point. If our society were truly post-racial however we would not see college graduation rates varying so widely between races, all other considerations constant.
Affirmative action is any effort made to improve educational or economic opportunities for historically disadvantaged groups such as people of color and women. This can include recruitment and retention efforts among others. According to a Gallup poll, the nation is split fairly evenly on the issue of affirmative action, but when the question is posed including the term “racial preferences” support drops as low as 38 percent.
Affirmative action, though it was not always called that, dates back to the 14th amendment which calls for equal state protection of similarly situated persons. This really took hold within the workforce in the 60s when Presidents Kennedy and Johnson passed executive orders explicitly referring to race and sex respectively and for the first time using the term affirmative action. It wasn’t until the Brown v. Board ruling when notes of affirmative action began to take hold in education. Like most rulings and laws, things did not change overnight. It was 24 years later in Bakke v. University of California when affirmative action began to get fleshed out in higher education as the court declared race quotas unconstitutional. The focus on affirmative action has largely been a black and white binary argument until recently. A nonprofit group, Students for Fair Admissions, believe “most competitive universities are not in compliance” with the Supreme Court’s decision in Fisher v. University of Texas. Students for Fair Admissions has a current lawsuit against Harvard claiming racial balancing is occurring, specifically regarding Asian students. While the proportion of Asian applicants rise, the proportion admitted has stayed rather constant. Harvard is arguing that they do not put quotas on their student population but that they must pay attention to maintain a truly diverse student body.
Although the narrative of affirmative action is changing, the opponents of affirmative action have maintained a whiteness that cannot be ignored. When the question of affirmative action for women is posed, there is support. When the question of affirmative action based on race is raised, you see more opposition. People feel as though something is being taken from them for opportunity to be given to others. These feelings can be explained as white supremacy. In this context white supremacy refers to a society in which power, privilege, and entitlement are widespread among white people. White people are not uniformly powerful, one must consider intersectionality, but if the focus remains on correcting overt racism and not the systems that perpetuate privilege, change will not be seen.
A landmark case for affirmative action, Grutter v. Bollinger defined the benefits of diversity as promoting "cross-racial understanding," and learning outcomes that "better prepare students for an increasingly diverse workforce and society," and deconstructing racial stereotypes. So, while affirmative action has been seen as taking from the hardworking and giving to an undeserving person of color, we must consider who affirmative action is really benefitting. Is it the populations who are criticized and told they cannot succeed without affirmative action measures, or is it the population that continues to hold power in this society and leaves the classroom a more well-rounded individual because of it?
This post was authored by Ms. Micayla Bean, a masters student in Higher Education Administration at The University of Texas at San Antonio and a graduate assistant in Student Activities.