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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Guest Post: New Regulations Dial Back Regulation of Higher Education but Increase Role of Counsel in Campus Title IX Procedures

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 Friday before most college students headed home for Thanksgiving break (November 16, 2018), the Office for Civil Rights of the Department of Education released new regulations governing Title IX.[1] A draft of the proposed regulations had been released at the end of August, and bits and pieces of their substance had been leaked over the course of the following weeks.[2]

Many of the new rules address due process requirements and are meant to make Title IX proceedings more reliable. This is controversial, but one would think it would be welcomed by both the advocates of victims and the advocates for the rights of the accused. 

The proposed rules will make it mandatory for colleges and universities to allow cross-examination in sexual misconduct cases. This is a cornerstone of the new regulations. Colleges and universities must now permit “each party to ask the other party or any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The rule permits cross-examination through the parties’ advisors, who may be attorneys, but not by the parties directly. This is intended to avoid direct confrontation between the student making an accusation and their alleged attacker. The common practice of separating parties in different rooms during Title IX proceedings will also remain in place. 

The need for legal counsel in higher education will undoubtedly increase. Previously, campuses had the discretion to receive proposed questions submitted by students. They had no obligation to actually ask them and could disallow cross-examination entirely. Advisors supporting students (including attorneys) were not allowed to speak or pose questions of any kind.

As with all things Title IX, the proposed rules instantly ignited controversy. Congressman Joe Kennedy III of Massachusetts was prompted to exclaim that it was “absolutely sickening” to allow cross-examination by an “accused sexual abuser.”[3] Legal counsel to the Victim Rights Law Center condemned cross examination as “a horrible idea” that somehow gives rapists control over their victims.[4]

In addition to the cross-examination requirement, another long-standing flashpoint for controversy is the standard of proof. The new regulations leave in place a school’s discretion to decide Title IX cases under the “preponderance of the evidence” standard (i.e., whether it is “more likely than not” that the alleged conduct occurred). The Department of Education previously imposed this standard as a requirement in its Dear Colleague Letter of April 4, 2011. That was revoked in September 2017, and it will now stay revoked. But there is no new requirement to impose a higher burden of proof (like “clear and convincing evidence” or “beyond a reasonable doubt”).

In practice, however, this is unlikely to affect what happens during misconduct hearings.  Most colleges already used “preponderance” before, during, and after the 2011 guidance that required it. Few are likely to change now.

Victims-rights advocates have attacked the OCR for permitting the use higher standards of proof.[5] Advocates of “preponderance” argue that it is the right standard, because—if properly applied—it does not tip the scales to either party, whereas higher burdens of proof benefit only the accused.

The champions of “preponderance” have a point: Preponderance is the standard used in cases of sexual harassment, sexual assault, and other forms of discrimination throughout the civil justice system. Employers and their employees acting in an official capacity, including universities, can be sued in federal court under multiple anti-discrimination laws, including Title VI or Title VII of the Civil Rights Act.[6] What justifies deciding such cases under preponderance, but protecting accused students with a higher standard of proof?

Unfortunately, few seem to apply the same reasoning to the cross-examination requirement. Cross examination is a bedrock right for defendants (and plaintiffs) in anti-discrimination cases of all kinds, without exception, whether or not accusations involve sexual assault, harassment, or other horrendous behavior. Why should it be “absolutely sickening” to ensure a cross-examination right in campus Title IX proceedings (to both parties)? Why should we put alleged victims on college campuses beyond the reach of cross examination?  Our justice system does not allow victims’ allegations to go without scrutiny in any other context.

There are other important due process changes: the OCR emphasizes that the burden of proof rests squarely on the school, not on students. It is neither the victim’s responsibility to prove that a perpetrator committed a sexual assault, nor is it accused students’ burden to prove their innocence. The rules state explicitly that the accused, as is the norm throughout American jurisprudence, is presumed not responsible until shown otherwise.

Other proposed due process rules simply incorporate what had long been promulgated in the 2014 Obama-era implementing regulations to the Clery Act at 34 C.F.R. 688.46(k). Where those regulations merely imposed a reporting requirement, however, the new rules will hold colleges and universities to account for acting in conformity with them. Examples include the right to timely notice of any meeting or hearing and the requirement that schools provide the accused with evidence that will be used against him in advance, including exculpatory evidence.  See 34 C.F.R. 688.46(k)(3)(i)(B)(2-3).

Another important change is the OCR’s restricted definition of sexual harassment. The Obama-era Dear Colleague Letter defined sexual harassment broadly, as “unwelcome conduct of a sexual nature.” The OCR now adopts the judge-made standard developed in cases in which victims sued their schools under Title IX for “deliberate indifference.” Going forward, OCR will respond to victims’ complaints only where they allege sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”  In addition, the OCR will continue to investigate allegations of sexual assault (as defined under the implementing regulations of the Clery Act (see 34 C.F.R. 688.46(a))).

In keeping with the trend toward dialing back federal oversight, the rules limit the scope of Title IX to campus activities or those “in a location or in a context where the recipient [of federal funds] owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance.” So, for example, fraternities and sororities will undoubtedly remain subject to Title IX. The OCR favorably cites a District of Kansas case finding that a Kansas State University fraternity was a university organization for the purposes of Title IX.[7] But student relationships in an off-campus bar or over summer vacation probably will not. Nor will assaults on campus by students against non-students or against students of other colleges.[8]

Nothing will prohibit colleges and universities from acting on such allegations, however, even if they are taken out of Title IX enforcement by the OCR. Universities such as Yale have already announced that they will continue to enforce their student sexual misconduct codes.[9] Student groups at Georgetown have demanded their university “denounce” Secretary DeVos and the new regulations.[10] Social movements and student pressure have been a driving force of stepped up prosecution of sexual misconduct on campus. This is another area in which, despite heated controversy over the proposed rules, little may change in practice—other than diminished recourse to the OCR. Institutions of higher education may prove to be unique in opposing the deregulation of their own industry.

The rules have been submitted to the Federal Register for publication. Once published in the Federal Registry, the proposed rules will be open for comment for 60 days, after which they will be promulgated with the force of law at 34 C.F.R. 106.





[5] what


[7] Farmer v. Kansas State Univ., 2017 WL 980460, at * 8 (D. Kan. Mar. 14, 2017)

[8] See OCR’s proposed rules citing Doe v. Brown Univ., 896 F.3d 127, 132-33 (1st Cir. 2018)




College Basketball's Latest Black Eye

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.”[1]

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.


[1]Marc Tracy, Three Found Guilty in N.C.A.A. Basketball Recruiting Scheme, New York Times, Oct. 24, 2018,


Guest Post: Sexual Harassment Allegations Against NYU Feminist Scholar

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.[1]  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.[2]  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.[3]

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).[4]

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.”[5]  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.[6]

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.[7]  

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.”[8]  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 …”[9]  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.[19]  

And Reitman does include well-pleaded claims for hostile environment, retaliation, and other theories of discrimination.[20]  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.[21]  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.[22]  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.

[1]See Complaint, ¶ 123.

[2]Complaint, ¶¶ 31, 32, 71. 







[9]Complaint, ¶ 44.   

[10]See Complaint, ¶ 123.

[11]Complaint, ¶¶ 31, 32, 71. 







[18]Complaint, ¶ 44.   


[20]Complaint, First through Fifth Cause of Action.

[21]Complaint, ¶ 101.



Affirmative Action in Today's Classroom

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. 


College Justice, Where Are You? 

Imagine being a college student who has falsely been accused of sexual assault; then imagine you were suspended or expelled from college simply because of these allegations. No hearing, no courts, no due process. College is supposed to be a new and exciting time but for a third of male college students this is not the case. It is estimated that 1 in 3 male college students will suffer this fate.  False accusations are occurring more than they should and the sad part is these students will be failed by a system which should be equally protecting them.

Under Title IX of the Education Amendments of 1972, campuses are required to prevent and remedy sexual assault cases or they face losing federal funding. In the past, campuses have had a reputation for not taking students’ complaints of sexual assault seriously; so, federal mandates have been put in place beginning with the Obama administration reinterpreting Title IX to the U.S. Department of Education’s Dear Colleague Letter. These mandates have put pressure on campus to find more accused students responsible, instead of the truth of the allegations. According to the Department of Education’s regulations, state schools must have a “prompt and equitable” procedure for resolving sexual assault complaints. These mandates also included adopting a “preponderance of evidence” standard. Under the preponderance of evidence standard due process is non- existent, meaning a hearing is not required, the accused does not have the right to appeal or have an attorney, and campuses are discouraged from permitting cross-examinations. Because of these mandates and regulations, the accused students are being suspended and expelled without the protections they would normally receive in the criminal justice system.

Secretary of Education Betsy DeVos announced she is moving to end the sexual assault procedures on campus set forth by the Obama administration. DeVos mentioned the current Title IX policies often denied due process to the accused, and that is what they are looking to change. Some feel this allows campuses to weaken their procedures for handling sexual assault cases and makes it more difficult for victims to seek justice. While others feel it will allow the accused a fair investigation.

There are detrimental effects for those who have been falsely accused of sexual assaults. In the case of  Andrew Doe v Ole Miss, a third party, who is unnamed, claimed “Andrew Doe” sexually assaulted “Bethany Roe.” Although Roe and Andrew both claimed they had consensual sex, Doe was never formally charged with a crime and Roe never filed a complaint. The University Judicial Council found Andrew guilty and expelled him from the university. The charge is permanently on his record. In Zackary Hunt vs. Denison University and Sophia Celeste Lee,  Zackary Hunt lost a $30,000 scholarship and his place on the University’s football team when he was falsely accused of sexual assault. In Joshua Strange v Auburn University, a grand jury failed to indict Joshua Strange in criminal court but Auburn University found him in violation of the student code of conduct and expelled him from the University. 

Over the last eight years more students are starting to sue colleges when they feel campuses violated their rights under Title IX.  In the case John Doe v. Swarthmore the college was accused of violating “John Doe’s” student rights after he was falsely accused of sexual misconduct. John Doe won and the suspension was lifted. This is not the norm; however, as cases seldom win in criminal court, but the costs for colleges to defend themselves is adding up. Nothing can replace the reputation lost or the mental and emotional toll false accusations take on accused students. With the help from lawyers, parents, and advocacy groups falsely accused students can fight back. While these students believe, their rights have been taken away, anti-rape advocates see it a different way. Anti-rape advocates believe that colleges are now paying more attention to sexual assaults on campuses and offenders are starting to cry foul. They believe most people who are accused of sexual assault would contend that they are innocent. 

Sexual assault on campus is a serious problem. There are not many educational issues debated more than how colleges should deal with sexual misconduct. Of course, Title IX has its challenges, all policies do, but regardless, protocols should be clear that ALL students are protected equally. Have efforts to protect sexual assault victims lead to policies that infringe on the civil right of men?  

This post was authored by Jessica Sherwood, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

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