Davis, Miltenberg: “‘Kangaroo Court’: Lawyers Weigh in on Betsy DeVos’ Proposed Title IX Policies for Handling Sexual Misconduct on Campus,” The National Law Journal

9.14.18

Lawyers are in two minds about potential implications of U.S. Secretary of Education Betsy DeVos’ move to draft changes to Obama-era policies for schools handling sexual misconduct allegations under the Title IX federal law. While most attorneys favor concrete rules over the general guidance provided by the Obama administration, key issues such as jurisdiction, standard of evidence and equal protection divide them. “My chest was pounding,” said trial lawyer Andrew T. Miltenberg of Nesenoff & Miltenberg of New York after leaving a Title IX hearing on Sept. 6. “I thought I was in some sort of charade or show trial. And I could not believe, even though I should now be used to it, the abuses of process and the complete ‘anything goes’ atmosphere.” The main issue, according to attorneys, like Miltenberg, involved in cases alleging sexual assault on campus: feeling they’re participating in a “circus” of a hearing conducted by an “ill-equipped and ill-trained” investigative panel.

Tara J. Davis of Nesenoff & Miltenberg, Boston, who has specialized in campus assault due process and civil rights since its inception, said she understands the jurisdiction argument from both perspectives. “I understand the group of people that say this is something that should only be handled by criminal courts or by the prosecutors and those trained in investigating these types of cases. On the other hand, there is a need for something to be done on the school level if there truly is some type of sexual assault on campus,” Davis said. Either way, investigating sexual assault allegations is a “great responsibility” that, according to Davis, should be handled by personnel that are “truly trained to investigate.”

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