This interview originally aired on The Scott Sloan Show on iHeartRadio on May 7, 2020.
Scott Sloan: So, Title IX, you heard that it’s a federal law that prohibits sex discrimination in programs that get federal funding. Typically, universities come to mind. In the past, Title IX has always been a battle about women’s sports going, “Well, you got men’s this, you got to have women’s that. If you’ve got men’s soccer, you have to have women’s soccer. It has to be equitable.” And in recent years, it has now been applied in something more serious, obviously, is sexual misconduct. So, yesterday, Secretary DeVos in the Department of Education announced an updated Title IX regulation. Obama did the “Dear Colleague” letter, which kind of addressed the issue, but in some cases made it worse. And Betsy DeVos yesterday said, “Okay, we have to make things fair for all people regardless of gender.” And of course, once you start saying that the people before who were about equality, and gender, and treating people fairly, all of a sudden feel like somehow they are the ones getting the short end of the stick when nothing could be further from the truth. Andrew Miltenberg is an attorney and he has a distinction of filing more Title IX lawsuits than any other attorney in the United States. Andrew, good morning. How are you?
Andrew Miltenberg: Good morning, Scott. Thank you for having me.
Scott: Sure. And congratulations being very, very good at this Title IX thing.
Andrew: Oh, I’m not sure I’m so very good.
Scott: Well, you have filed the most suits. That’s something, right?
Andrew: Well, and thankfully yesterday, it seemed to have a bit of an impact as you said, the Secretary of Education, Betsy DeVos restored some sense of normalcy and due process to what had been a very dangerous process if you had been accused of sexual assault.
Scott: Right. And make no mistake about it. If you are an individual who sexually molests, assaults, intimidates, whatever it might be it’s a crime at various levels depending on the severity of it, right, and what you’re being accused of. And certainly, when you’re convicted and found guilty of that, there should be a fitting punishment involved for that individual who violated someone else’s rights. There’s no doubt about it. But the problem we’ve had so far is it’s been extremely one-sided, right?
Andrew: Absolutely. The process on college campuses across the United States has been nothing short of a perfect storm with incompetent or negligent investigations, very little access to evidence for the respondent, which primarily were men, or are men, and a hearing that was nothing short of a farce that you could not expect to have any confidence in the results of. And that’s been going on since 2011, since the Obama administration put the “Dear Colleague” letter into effect, and it’s changed and dramatically changed the lives and careers and futures of countless young men.
Scott: And it’s really as tragic. We’ve seen it happen here at Xavier University, University of Cincinnati and other places, institutions here in the tri-state and greater Cincinnati area, but across the country too as well, that here are young men who are being accused of the most serious and serious of crimes and yet their trial is not that. It’s held in a kangaroo court. Basically, the school offers the terms for these alleged hearings, if you want to call them a hearing, it’s more like a witch hunt taking place. It’s not a fair and equitable process for the accused here. And I guess the question would then be, so how did we get to the point where schools are the ones who are handing and figuring out the discipline? And it’s not at all like the legal system where there’s a judge, a jury, you’re allowed to face your accusers. There’s none of that in these kangaroo courts in schools. How did we get to that point? Why wasn’t this just prosecuted as a regular crime? Why does it have to be held only on a campus? I don’t understand that.
Andrew: And that’s a great point and one that is still very much a point of contention in the ongoing discourse regarding Title IX. The fact is that we have a law enforcement process and a criminal justice system that works, that works pretty well by all accounts, and why are universities undertaking to have this investigation and slash/hearing process for acts that would otherwise be felonies or misdemeanors? You certainly wouldn’t expect a school to prosecute a shooter or a kidnapping. Why are they prosecuting these matters? And that’s something that continues to be part of the debate. And the retort to that is that there are things that arise to the level of a violation of school conduct code policy that don’t rise to the level of being warranted to be in the criminal justice system.
Scott: Right. And I think that’s interesting and how that all came to be because it’s almost like, well, the reason why is that the school can protect its image, you know, and it’s also, there’s a lot of bias in schools. Let’s face it, which is the exact opposite of what our court of law is, what the justice system is, right? Supposed, Lady Justice allegedly is blindfolded. That is not the case at all because there’s some real horror stories from generally young men who are accused of sexual misconduct in schools. You know, for example, being denied any due process rights or even being allowed to speak in their own defense. Is that true?
Andrew: That is absolutely true. And I challenge any thinking person, lawyer or not, to watch one of these investigations unfold and then attend the hearing and not be outraged by the conduct and the protocol involved. And as they normally turn out, neither side is particularly happy with the allegations. Unfortunately, it has a significant impact once you are accused and found responsible of the sexual assault or sexual harassment or nonconsensual sexual activity, it severely limits your educational opportunities and severely limits career opportunities. And that has been something that has grown over the last seven or eight years to the point that I would say that, you know, there are literally at any given time at my office, dozens of Title IX matters going on at universities, big and small, Ivy Leagues and community colleges all across the country.
Scott: Yeah. And, you know, I get, and I’m glad that we’re finally addressing this issue because it’s huge. And on the show this morning on 700 WLW, Andrew Miltenberg is an attorney. We’re talking about the Title IX ruling from the Secretary of Education’s office that details how things are a little more fair. And I point out the sense of fairness too is that… Even in the, I guess, you know, as we talk about the kangaroo courts that made up Title IX hearings, generally just saying what’s good enough is a woman accusing a young man of misconduct is, that’s it you must be guilty. We have to believe her. And I’ll get to the Biden-Kavanaugh thing in just a second because I think it’s relevant to this whole discussion. But on that point of universities, you know, most, not all, but a lot of schools have really good law programs there. It would seem to me that why wouldn’t, at the very least these schools have had said, “Okay, we’ll get the chair of the law department to get a bunch of students together, who are, I dunno, maybe, you know, juniors or seniors in order for them to allow to practice their upcoming craft and do it in a setting like this.” Why not just turn it over to the school’s School of Law to handle this stuff. That would have been a more fair solution too, wouldn’t it?
Andrew: You know, it makes perfect sense. And I can tell you in the few cases that I’ve had that have had hearing panels chaired by law professors, or the Dean of the Law School, or adjunct faculty from the law schools, those have been among the fairest, you know. But some of these changes that are hopefully going into effect August 14th are pretty significant. Right now, there is no guarantee of a live hearing. There is no guarantee that you will be able to cross-examine or ask questions of a witness or a party. There is no guarantee that the school will maintain a transcript or a record of what happened at the hearing. There is no guarantee that you will have access to the evidence that an investigator collects. All of these things add up to a very dangerous process and we know that the erosion of civil rights and due process is a very frightening thing.
Scott: Yeah, it is. It’s almost like, you know, some third-world despot running the show here instead of United States of America in an institution of higher learning, which is extremely insulting, where they’re preparing people to be smart, well-educated, well justice fair individuals, and this whole thing, I’m sorry, but it’s driven by a huge feminist agenda to the point where you know, bringing this back to real-world at the situation, Senator Kirsten Gillibrand, right, suggested that in the Tara Reade case with Joe Biden that we have to enter a space for, I’m reading her quote now, “All women to come forward to speak their truth.” Isn’t that what we’re talking about here is that the woman is the foremost authority on what her truth is? And now she may have seen it differently. Some may be vindictive and going, “Okay, I’ll buy his remorse. Now that I’m sober and I’m a victim. Now that I decided to have willing sex with this individual when we were both drunk,” which happens a lot in college, but in this case it’s like, well, her truth. What about his truth? And what about the truth?
Andrew: Well, it’s interesting you say that because essentially, these cases for the last seven or eight years have started with the concept of believing the accuser. And so, immediately from the moment the accuser opens her mouth, the burden of proof is on the male respondent to try to prove something didn’t occur. We know how hard that is and rarely, is there ever any direct evidence. Usually, it’s just the two people in a room together. And in most cases, they’ve known each other for a while or were in the same circle of friends. And in most cases, one or both of the parties have had a couple of beers to drink. And what occurs between them is subject to interpretations, but his truth never really seems to carry much weight. Her truth controls the flow and evolution of the hearing.
Scott: Well, I will say this Andrew Miltenberg, and that is this whole… With the Joe Biden allegation now and Tara Reade versus Brett Kavanaugh, it feels like, to me, and I could be wrong about this, but the “Me Too Movement” sold out faster than a roll of Sherman.
Andrew: Well, it’s interesting, don’t you worry, it’s ironic in the sense that Joe Biden was really the moving force back in 2011 together with Michelle Obama to start essentially, what became the “Me Too Movement.” It had at its earliest stages victims’ rights groups on campuses urging universities to be much more diligent and aggressive in the prosecution of these cases. And Joe Biden then turned that into the, you know, “It’s On Us” campaign and we’d go around speaking at various schools in support of victims’ rights advocates and even calling someone who makes an accusation a victim before there’s any determination is troubling. So, it’s interesting what’s happening and ironic at the very least.
Scott: Well, it’s just the death of “Me Too” in that sense, and that we do return… Listen, I had a mom, I have a wife, I have a daughter. Some of the most important people in my life are women. I don’t want to see women victimized. I think very, very, very, very few, you know, men do. I mean, to think that somehow men are like, “Ah, I’m okay with it.” We all have wives, and mothers, and daughters. We don’t want to see them victimized, but we don’t want to see our sons, and our husbands, and our dads victimized either. It’s a sense of fair play. It’s like, “Listen, something may have happened. Do you have enough evidence to prove this?” They couldn’t in the Kavanaugh case, they probably won’t in the Tara Reade case. But I think that is the point, and it sadly, it took a Democrat to be accused of this in order to point out the hypocrisy that “Yeah, bad things may have happened,” but I guess, the onus is on you at the time to make those allegations, and when you’re talking about decades later and little evidence to show, there’s not room for that anymore. It’s a sad reality, but we have to address that.
Andrew: Absolutely. And it’s something that I look at these cases the same way you do. I have a daughter and a son, twins, both in college, and I constantly say to myself, “What would I want for my daughter, Isabelle, and how would I want Jacob, my son to be treated if he was accused?” And it doesn’t have to be a zero-sum game. And yet this topic, the topic of sexual assault is so polarizing that you’re either for us or against us, essentially. There is no middle ground among people who have a strong opinion on this topic. And the middle ground can be set.
Scott: Andrew Miltenberg is an attorney. And your phone’s breaking up just a little bit there, Andrew. Andrew Miltenberg is an attorney, he’s filed more Title IX lawsuits against schools, and we’re talking about this because of the ruling yesterday from the Education Secretary Betsy DeVos essentially saying, “Hey, we’re going to blow this thing up because too many young men are getting railroaded in these cases. We want it to be fair, but we want it to be fair by not getting, I don’t know, some sorts of vengeance because so many women have been neglected over the years.” It’s the truth, but you can’t make things better in the future by over-punishing one side to make up for the sins of the past of which they had no control over. That’s not how it should work. And sadly it is in a lot of the nation’s schools and right here in Cincinnati. Final point on this, Andrew, if you read the list of things that could go wrong with it, it literally sounds like a kangaroo court. Some of the things in the order here from Secretary DeVos says this, that schools need to provide a consistent legally sound framework on which survivors, the accused, and schools can rely. That schools have to offer clear, accessible options for any person who reports sexual harassment, it empowers survivors make decisions about how a school responds to incidents of sexual harassment, that the school must offer supportive measures like class or dorm reassignment so there’s, to enforce no-contact orders, off-campus shenanigans are under the guides of the school, fraternity, sororities, that kind of thing. I looked at the whole list. When you read this and you go, “Wow, this is really fair because yeah, it provides an opportunity for the accused to have an equal voice in court along with the accuser.” And I read this and go… And based on what you said. Then I look at the quote here from Fatima Graves from the National Women’s Law Center who says this, ” We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” And here’s the problem, is groups like the National Women’s Law Center push a radical agenda that doesn’t make things more fair. It makes things more unfair.
Andrew: That’s correct. And that’s what we’ve been dealing with for eight years now. So, well, while the list of corrections made by Secretary DeVos seem to be all reasonable and fair, in fact, you’re correct. Victims’ rights groups, women’s rights groups are looking at these changes as a huge step backward.
Scott: Well, I’m hoping that this is the finality of it here too, with this order from Secretary DeVos, but I have a feeling that even though you order stuff, it doesn’t mean that it’s going to be perfect from this point forward. So, we’ll talk again, Andrew Miltenberg. Thanks again for the time and I appreciate it.
Andrew: Thank you for having me.
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