Miltenberg: “Lawyers, Advocates Fight Over Fate of Title IX Proposal Amid Pandemic,” Politico Pro


Education Secretary Betsy DeVos’ new proposed Title IX rule has been cleared by the White House and could be issued soon, despite pleas for postponement until the national emergency is over. But some lawyers who represent students accused of misconduct say the Trump administration should go ahead and issue the rule, arguing that college Title IX coordinators may have less to do with campuses empty.

The White House Office of Management and Budget finished its review of DeVos’ new Title IX rule on Friday after months of meetings, which are still ongoing. An Education Department spokesperson said the agency does not have an anticipated publication date yet for the rule that is expected to shake up how sexual assault and harassment charges are handled at every college campus and K-12 school.

Even without a publication date, hundreds of education and victims advocacy groups, state attorneys general and some Senate Democrats are calling on the Education Department to put off the final rule until the coronavirus national emergency ends. Most groups asked to suspend nonessential rulemaking, saying that school resources are already spread thin trying to figure out how to move instruction online and support students.

Sens. Patty Murray (D-Wash.), Elizabeth Warren (D-Mass.) and Kirsten Gillibrand (D-N.Y.), in a letter sent to DeVos on Tuesday urged her to hold off. “While schools are grappling with how to maintain basic services for and supports to their students, it is wholly unacceptable for the Department to finalize a rule that fundamentally will change the landscape of how schools are required to respond to incidents of sexual harassment and assault, and we urge you to reconsider this misguided plan,” they wrote.

Other groups, in a letter led by the National Women’s Law Center, also said moving forward “with a new Title IX rule would only exacerbate these challenges by diverting schools’ already sharply limited resources toward creating complex new policies and training employees on implementation” of the rule.

On the other side, some attorneys who represent students who have been accused of sexual misconduct are encouraging the Education Department to just move ahead with the final rule, saying this is as good a time as any.

Attorneys Justin Dillon and KC Johnson, in a piece in the National Review responding to the letters urging postponement sent to DeVos, said, “While it’s hard not to admire their chutzpah, their arguments are provably nonsense,” and that “the time is now.”

They also argued that Title IX coordinators will have more “time on their hands” in the next few months.

“I think if anything, now is the time to issue” the rule, said Andrew Miltenberg, a Title IX attorney who also represents students accused of sexual misconduct on college campuses. “We have a little bit of breathing room before everyone’s back on campus together to digest and analyze and enact or effectuate the new rules. So, this is the perfect time to do it.”

“We have a reprieve for the moment from students being on campus, interacting so there is less — just by virtue — Title IX complaints and situations arising,” he added.

While halls of schools are empty, schools are navigating how to continue moving pending Title IX cases forward, and some are even opening new cases, Miltenberg said.

But schools could be faced with problems as they move hearings online.

Miltenberg, who is representing more than 50 students across the country, has objected to “Coronavirus Conduct Process One Party Waivers,” that were supplied by the Student Conduct Institute at the State University of New York, which has more than 700 members from various colleges. The institute trains staff at public and private institutions of higher education on investigating and adjudicating conduct violations and disclosures.

The waivers could be used to temporarily modify Title IX procedures by waiving the usual in-person hearings. Without the waiver, cases may need to be held over until the fall 2020 semester or later before they can be closed.

Miltenberg said the waivers could strip away due process rights from students during the pandemic, and one of their last opportunities to present their case.

“A respondent or an accused is already going into a hearing with two-and-a-half strikes against them,” he said. “The only chance that oftentimes the respondent has at a hearing is the opportunity to submit questions for cross examination, and the opportunity to connect with the panel members and express their integrity, and their credibility.”

Miltenberg said the best thing that universities could do to make sure the process is fair for both parties is delay Title IX hearings until schools reopen in the fall.

“As a practical matter, the semester is over — I mean we’re already in April,” he said. “The semester is done. What’s the rush to do this now, when no one’s on campus anyway, if it’s going to really compromise the rights of one of or both of the parties?”

SUNY spokesperson Holly Liapis said the university has provided two models to move cases forward to ensure that all parties have their due process rights preserved.

“This attorney appears to be irresponsibly drumming up a non-issue that does not exist at a time that we are dealing with a significant health crisis across our state,” she said. “As SUNY has transitioned to distance learning to educate our students, it has also had to transition all operational programs, including pending cases alleging student misconduct remotely.”

“All parties in such cases cannot move forward without a path that preserves due process and fair process, and not one that simply removes it,” she said. “SUNY has provided two sound models to that end.”

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