American College of Trial Lawyers Doesn’t Know It’s IX (Update)

Brian Bensimon, a student reporter for the College Fix, asked if I had any thoughts on the white paper prepared by the American College of Trial Lawyers. Having neither heard nor read anything about it, it was good of him to ask, as there was now something that needed to be read.

The ACTL is a vanity group, but a legit one, whose primary purpose is to give its members awards. At least they’re earned. And to its credit, the preparation of a White Paper on a controversial topic reflects a real concern for law. So it was something worth the read.

Unlike what one would expect from an association like the American Bar Association, dedicated to social justice at the expense of law, the ACTL took a critical look at the manner in which campus adjudication of Title IX failed to demonstrate respect for basic due process in its zeal to vindicate the campus sexual “epidemic.” And it therein went off the rails.

In 2011, in response to increased concern over sexual assaults on university campuses, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter outlining the procedures private and public higher education institutions must follow in investigating and adjudicating sexual harassment complaints under Title IX.

When you begin with a lie, things tend to go downhill from there. The Dear Colleague Letter wasn’t in response to “increased concern over sexual assaults,” but social engineering of a manufactured shift in college sexual norms promoted by then head of the DoE Office of Civil Rights, Russlynn Ali. There was no crisis. There was no law. It was a product of Ali’s agenda, and in a guidance letter, she rammed it down colleges’ throats upon pain of losing federal funding. Sanctuary cities, anyone?

All higher education institutions that receive federal funds must comply; according to a press release from DOE, schools that “violate the law and refuse to address the problems identified by OCR can lose federal funding or be referred to the U.S. Department of Justice for further action.

Says who?

According to Catherine Lhamon, Assistant Secretary for Civil Rights, the legal bases of the Dear Colleague Letters (DCLs) stem from the United States Supreme Court’s confirmation that, under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(D), agencies may issue guidance without notice-and-comment procedures; such guidance does not have the force and effect of law but rather, is intended to advise the public of the construction of Title IX.

All of this, of course, served to create a lie, and the ACTL swallowed.

ACTL strongly supports efforts to remedy the longstanding failure to adequately address the problem of sexual misconduct, particularly on college campuses.

This foundation for the White Paper was thus the uncritical acceptance of a manufactured “failure,” and facially improper “guidance” that puts the lives of thousand of college students at the mercy of a couple of radical bureaucrats in OCR. The ACTL couldn’t be bothered to consider the political shift in social norms, the elimination of meaningful definitions, the fabrication of an adjudication system designed to circumvent law and compel colleges to acquiesce to Catherine Lhamon’s vision of feminist social justice, and put every male college student at risk to achieve it.

The ACTL embraced it all, without the slightest thought that they just got played for fools.* But at least they then decided to play catch-up and fight the procedural battle despite surrendering the war.

ACTL believes that all students, whether at public or private institutions, who are accused of sexual misconduct should be guaranteed due process protections. To that end, ACTL submits that accused students should be:

• Provided with an investigation or hearing conducted with due consideration for any appearance of partiality, including any that might arise from the factfinder’s other responsibilities or affiliations;

• Promptly provided with the details of the allegations and advised of their right to consult legal counsel;

• Provided the right to be advised and accompanied by legal counsel at all stages of the investigation or hearing;

• Provided with access to all evidence at a meaningful time and in a meaningful manner, so that they can adequately respond to it;

• Permitted to conduct some form of cross-examination of witnesses, in a manner deemed appropriate by the institution, in order to test the veracity of witnesses and documents;

• Provided with a process where the standard of proof for responsibility should be clear and convincing evidence; and

• Provided with written findings of fact on completion of the investigation or hearing sufficiently detailed to permit meaningful appellate review.

That ACTL took issue with the current subconstitutional regime crafted in Lhamon’s fertile imagination is better than the alternative, but the suggestions are tepid at best. The wiggle in these suggestions is painfully obvious to anyone who actually defends accused male students.

What does “some form of cross-examination” mean? They have a “some form” system already, where an accused submits written questions, blindfolded, to the disciplinary body led by a French Lit prof**, who then decides which question, if any, to ask the “survivor” so as not to retraumatize her by denying her lived experience. Was that what you meant, ACTL?

Even FIRE took issue with these recommendations.

ACTL recommends that students be allowed to be “advised and accompanied by counsel,” but stops short of endorsing the active assistance of counsel for accused students. FIRE believes this is insufficient, particularly when the underlying campus charge involves allegations of unlawful misconduct. Because statements made in initial campus hearings may later be used against students in a court of law, limiting an attorney’s involvement to advising or accompanying a student is simply not enough. A lawyer’s active guidance helps ensure due process is respected to the benefit of all parties.

But all of this soars past the initial lies, the epidemic that exists only if you shut your eyes tightly and believe with all your might in the sad tears of hurt feelings, the ability of a bureaucrat to invent authority under law that doesn’t exist, the imposition of that authority, together with a process designed to subvert male students’ rights on campus, and the creation of a secondary, subconstitutional process on college campuses that will destroy students’ lives.

Are we past the point where the lies can be challenged? Perhaps. From the last president to the ACTL to the lawyer who embarrassed FIRE in its complaint, it would appear that everyone takes for granted that the rape epidemic and the authority of OCR to create “guidance” fundamentally changing the risk of attending college are a done deal. The problem with such acquiescence is that its was built on a system designed to achieve an end, to be unfair, to make absolutely certain that cries of rape would go undoubted and that the perpetrators began from the presumption of guilt.

There is no fixing this system. The ACTL’s report, even in its squishiness, could at best hope to put bandaids on the gaping holes carefully designed by Ali and Lhamon to assure their agenda would control the campus narrative and re-engineer sex on campus. This White Paper may help a bit with minor skirmishes, but like the FIRE complaint, surrendered from the start.

Update: Bensimon’s post is up, and makes no mention of me or any of the issues raised here, adhering closely to the shallow tweaks and critiques, as well as this insipid reductivist nonsense:

In a report highlighting failures of due process in Title IX investigations, the group calls for use of the “clear and convincing” standard, which is approximately 75 percent certainty or “substantially more likely than not to be true.” (Emphasis added.)

While Bensimon is a student journalist, which might explain his inclination to the simplistic, it’s still unacceptable to make people stupider. Sadly, he does. This is why we can’t have nice things.

*In fairness, the ACTL isn’t the only organization to blindly go down this path. As KC Johnson notes, FIRE commenced suit with a bizarre complaint that begins by applauding OCR’s deception:

  1. For far too long, the problem of sexual assault on college campuses, like the problem of sexual assault more generally, did not receive the attention it merited. Now, hardly a week goes by where the problem of campus sexual assault does not feature prominently in the mainstream media. That is not a bad thing; the war against sexual assault must be waged with the utmost seriousness.

It then goes on to concede that Title IX extends beyond sex discrimination.

12. Title IX bars sex- and gender-based discrimination in institutions of higher education receiving federal funding.

Much as FIRE does some great work, this is outrageously wrong and counterproductive.

**The ACTL recommendations include a change in the current burden of proof from preponderance to clear and convincing evidence. While the latter is certainly better than the former, it assumes that non-lawyer finders of fact have the capacity to apply a burden of proof and distinguish between them. While it sounds nice on paper, the fine application in reality tends to blur and be rendered meaningless.

6 thoughts on “American College of Trial Lawyers Doesn’t Know It’s IX (Update)

  1. Jim Tyre

    **The ACTL recommendations include a change in the current burden of proof from preponderance to clear and convincing evidence. While the latter is certainly better than the former, it assumes that non-lawyer finders of fact have the capacity to apply a burden of proof and distinguish between them. While it sounds nice on paper, the fine application in reality tends to blur and be rendered meaningless.

    True enough. But without addressing any other Title IX issues, how is that different from what courtroom lawyers have to address? The definitions are squishy, but the good ones find a way.

    1. SHG Post author

      That’s the perpetual struggle during voir dire, opening and summation, to emphasize the burden of proof so that the jury appreciates to the extent possible how strong the prosecution’s proof must be to meet the burden.

      But in Title IX adjudications, there is no voir dire, openings or summations, making it all rhetorical.

      1. Jim Tyre

        Ah, point taken. I’ve dealt with clear and convincing in alleged libel trials, but not where most of the trappings of a true adversarial proceeding have been removed.

        1. SHG Post author

          It *may* be forgivable for a non-lawyer to be so naive as to think that burdens of proof serve as well as people think they do, but this is the American College of Trial Lawyers (you know, trial, as in, they try cases), so they ought to know better. Then again, when FIRE’s executive director, Robert Shibley, wrote his broadside on Title IX, he made me bang on head on my desk:

          On the other hand, there are points that are cringeworthy in there, such as putting percentages to standard of proof (beyond a reasonable doubt is 98-99%? Says who?). While it’s understandable that Shibley seeks to make law understandable to the lay reader, when he uses methods like attaching percentages where none exist, aside from the preponderance standard, it’s the sort of trick that lawyers will find unpalatable. Sure, we get it, that the only way to convey the message quickly is to use a trick like this, but replacing one myth with another for convenience is disturbing nonetheless.

          Burdens of proof. How do they work?

  2. Charles

    So when one receives a “Dear Colleague” letter, do they address the reply to “Dear Leader”?

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