This interview originally aired on Ross Kaminsky Show, 630 KHOW, Denver’s Talk Station on iHeartRadio on May 12, 2020.
Ross Kaminsky: It’s, kind of, like what power does to people who run the parts of colleges that deal with diversity and sexual assault and things like that, “We got to use our power.” And boy, have they been. Ever since the Obama Administration imposed rules involving college campus sexual assault charges, rules that essentially make the person who is accused, usually a guy, effectively guilty immediately upon being charged. So, this is something I’ve been wanting to talk about for several days since there was some big news on this story, but I’ve been out moving. So back today with the first real chance to talk about it. Here’s a headline from Fox News, DeVos, that would be Secretary of Education Betsy DeVos proclaims, “Title IX rule change for campus sexual assault cases ‘rebalances the scales of justice’.”
Joining us to talk about whether or not that is true, my friend, Andrew Miltenberg, an attorney out of New York who, sort of, fell into the role after defending a Columbia University student against “mattress girl’s” insane accusations, my alma mater which…anyway, Andrew has fallen into the role of being the nation’s leading defender of unfairly accused young men or men whose accusations have gone through an unfair process leading to punishment without proper due process. So, with all that, Andrew, good morning. Thanks so much for being here.
Andrew Miltenberg: Good morning, Ross. Thanks for having me back.
Ross: What are the key aspects of the rule change or changes?
Andrew: Well, the rule changes…and you mentioned, moments ago, power. And it’s been power that college administrations have been given by the Obama Administration that has really ruined or set off track the lives of hundreds and hundreds of young men. And, thankfully, Secretary of Education DeVos last week changed some of those rules. And some of the important ones are, and one that you think we would take for granted, is now the accused is presumed innocent. Something as simple as that didn’t exist before in this venue. So, of the changes that I think are significant, that’s one of them. We now will have live hearings that are going to be enforced and there’s going to be an opportunity for cross-examination which is another concept that, while important in our judicial system, didn’t seem to make it into our college administration system. So, there are a bunch of others. Those are the two that really…that I think are incredibly significant that the Department of Education has touched upon.
Ross: So, you typically hear, in cases involving an accusation of sexual assault whether or not one actually happened, that it’s overly traumatic to the victim or alleged victim to have to have her or, I’ll assume it’s a her although it isn’t always, it is most of the time, have to have her face the person who is at least accused of sexually assaulting her. How are they dealing with that issue in this situation?
Andrew: Well, you know there’s this trauma-informed investigation technique which essentially is what you just said, that we don’t want to put the proposed victim or the potential victim through another round of questioning because that may re-traumatize in most cases what is a “her.” And so we’re going to believe right upfront everything she says. And so initially the burden of proof is on the accused. One of the things that they’ve done where hopefully these new regulations will fix is not only this ability to cross-examine someone, but you now get a copy, if you are accused, you now receive a copy of the evidence and the witness statements and all of the information that is going to be used to find you responsible during your hearing. Now that wasn’t always a given and many schools went forward with giving a student very little access to the information that they were up against. Now, that’s changed. Now, it’s mandatory that the accused gets that information and not only witness statements but evidence.
And there’s another important change which is that the complainant can now withdraw the complaint and stop the process. Again, the way that the process exists right now, once a complaint is made it’s out of the hands of the complainant. The school will go forward regardless of the complainant’s wishes. What we’ve seen over and over again is a couple will have a fight, they will break up and you know that those are emotional moments in relationships. You will find that the young lady makes a complaint under Title IX, and that’s when we talk about Title IX being weaponized. Usually the young lady will not want her ex-boyfriend on campus anymore. And then they’ll make up a couple of weeks later and the young lady will say to the Title IX office, “You know, I wasn’t telling the truth. I really was just angry and I don’t want to go forward with this.” And previously, the school would go forward with it. Now, they have to listen to the complainant.
And so, those concepts have taken some of the power out of the hands of the university and university administrators and put it back in the hands of the students and made it a fairer process.
Ross: Are there any repercussions for a complainant who lies?
Andrew: Sadly, other than the normal civil repercussions, such as being sued for defamation or filing a false report which leads to courses of action, sometimes what we call abuse of process, there still at the university level are no ramifications for someone who files a false report. And, equally troubling, and the new regulations unfortunately specifically address this, is that schools can do nothing to stop someone from exercising their First Amendment Rights. So, if we go back to the case at your alma mater, where “mattress girl” was carrying around her mattress and having rallies in the quad on a weekly basis talking about her rapist still being on campus, she’d be allowed to do that still. And that’s one of the things that I had hoped that these new regulations would address, and they didn’t.
Ross: I mean, that does seem like a straight up slander case, you know, separate from any of this Title IX stuff and, you know, if Paul could prove it. But, can any of these new changes be used to help cases that have previously happened, like we had Grant Neil on the show, and you represented so many guys who, I mean, whether or not you think they did it, the processes have been so egregious. Is there any retrospective look at processes that have ended up with, you know, from colleges for things they possibly or probably didn’t do and certainly weren’t proven?
Andrew: What a fine young man Grant Neil was. I have to imagine that you had a good meeting with him. None of this is retroactive and it doesn’t take effect until August 14th. And we’re hearing a lot of rumblings that there are forces gathering, victims’ rights groups, women’s rights groups, some of the democrat groups…the groups of democrats to file for an injunction stopping the Department of Education from implementing these changes. So, it’s not going to be retroactive. The new changes are not supposed to go into effect until mid-August and I think there’s a real question as to whether they will even go into effect then. I think we’re going to see a lot of litigation before that happens.
Ross: Wow. You see that a lot in all kinds of other issues these days where the Obama Administration did something, the Trump Administration looks to undo it and it just ends up in lawsuit after lawsuit and lawsuit. And sometimes the people who are suing win and it just gives me this overall kind of feeling like, you know, we live our entire lives in this kind of regulatory ratchet where things get more and more and more regulated more and more and more punishment oriented, heavy handed estate and you just can’t undo it. And I don’t like that feeling at all. I’ll give you the last 20 seconds.
Andrew: No, I think your listeners have to understand that there’s no mistake here. This absolutely ruins the lives of young men who are accused. There are whole hosts of career paths, whether its military, law enforcement, government, medicine, law. Anything which requires a license that become off limits if your records reflect that you have been found responsible for sexual assault.
Ross: That’s a great point.
Andrew: These changes are long needed, and I thank you for giving me an opportunity to talk about the changes.
Ross: Attorney Andrew Miltenberg joining us from New York. Keep doing what you’re doing, Andrew. Appreciate it.
Andrew: Thank you very much Ross.
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