On this week’s episode, president and founder of Speech First Nicki Neily joins to discuss Title IX regulations. We focus on the recent SCOTUS decision in Bostock vs. Clayton County, and cover the implications for women’s sports. We also talk about the new Title IX rules for college campuses issued by the Department of Education in May.

Nicki Neily is the president and founder of Speech First, a nationwide membership that defends students’ First Amendment rights through litigation and other means. Over the past two and a half years, Speech First has filed lawsuits against the University of Michigan, University of Texas, University of Illinois, and Iowa State University, which had policies on the books that were designed to chill student speech.

Nicki has worked at a variety of advocacy organizations throughout her career, serving as the executive director of the Independent Women’s Forum, president of the Franklin Center for Government and Public Integrity, and creating the department of external relations at the Cato Institute.

She Thinks Podcast · Title IX on College Campus and the Fight for Students’ Rights

Transcript

Beverly:

And welcome to She Thinks, a podcast where you’re allowed to think for yourself. I’m your host Beverley Hallberg, and on this episode, we discuss Title IX regulations, and it’s a really good time to do so because there is a lot going on in this area. First, there’s the recent SCOTUS decision in Bostock versus Clayton County. So we’ll discuss how this impacts women’s sports and also spend a decent amount of time on the department of education. They issued a new Title IX regulation and new Title IX rules in May. So will due process and the presumption of innocence be status quo at colleges and universities? Well here to break it all down is Nikki Neeley. She is the president and founder of Speech First, a nationwide membership that defends students’ first amendment rights through litigation and other means. Over the past two and a half years, Speech First has filed lawsuits against University of Michigan, University of Texas, University of Illinois, and Iowa State University, which had policies on the books that were designed to chill students’ speech.

She has worked at a variety of advocacy organizations throughout her career, serving as the executive director right here at Independent Women’s Forum. She was the president of Franklin Center for Government and Public Integrity, and creating the Department of External Relations at the CATO Institute. It is a pleasure to have you on today, Nikki.

Nicole:

Thank you for having me.

Beverly:

So, I just want to back up and start with a very basic question, which is can you explain to us what Title IX is?

Nicole:

Sure. Title IX is very basic. It’s funny that it’s become this huge flash point, because it was an amendment in 1972 to the Civil Rights Act of 1964. There’s only a handful of words. It says, “No person in the United States shall, on the basis of sex, be excluded from participation and be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” So very simple. I mean it doesn’t seem very controversial. Yes, it has, over the past several decades, become the flash point in the culture war, and so that’s where we are today.

Beverly:

Yeah, and on the surface, like you said, this seems like a great thing. You wouldn’t think there’d be any issue with it, but let’s talk about what’s happened in the past decade or two. How has the definition of discrimination expanded in such a way that it’s actually been harmful to different individuals on college campuses, specifically females?

Nicole:

Sure. I mean I remember when I was at IWF over 10 years ago and people thought about Title IX in the context of sports for the most part. So there’s not a women’s wrestling team. We need to get rid of men’s wrestling teams because we can’t discriminate. There has to be equality across that, and where I think we really started to see things go off the rails was under the Obama administration, when they really started to expand the definition of what sexual harassment was. To back it up a little bit, in 1999 there was a Supreme Court decision, Davis versus Monroe County. and the facts od that, it actually referred to a fifth grader in … I want to say California off the top of my head … who was being harassed by one of her classmates, who was very disturbed. He was chasing her around, he was fondling her, and so this made it all the way to the Supreme Court, and the language in that decision said that sexual harassment had to be so severe, pervasive, and objectively offensive that it denied the student an educational opportunity.

And the dissent in that, which was written by Justice Anthony Kennedy, which is kind of funny, because I think of Anthony Kennedy as kind of being a squish, but he was sort of a Cassandra in the way where he said, “This is going to open the flood Gates to a ton of litigation. This specific case is in the K to 12 context, but you are setting higher ed universities or higher ed institutions up to … you’re holding them to the same standard, and so the fact that private individuals now have a right of action against universities and educational institutions, that’s what we have seen happen,” and he was totally right, because as the Obama administration started to kind of expand the definition of it, they changed one little word. They defined sexual harassment as severe, pervasive, or objectively offensive, which means it didn’t have to meet that three part test. Now suddenly it only had to be one of those things to be sexual harassment, to be creating a Title IX problem where somebody was being discriminated against.

But suddenly now the federal government was able to get involved in everything, and I think at the same time … they did this through what’s called a big guidance document. So they didn’t go through the whole proper ruling comment period that is required for federal regulations, but they also, at the same time, vaguely threatened universities. There was an incident at the University of Montana where they worked out a bunch of guidance documents and they came up with a plan. They called it a blueprint and they said, “This is kind of what everybody else around the country has to have,” and so schools knew that if they didn’t comply with that, they ran the risk of being subject to what was called the death penalty, losing access to all federal funding. So no student loans, no grants, et cetera, and obviously for 99% of the universities around the country that use the death penalty, if you don’t have access to federal money and student loans, then you are going to die in the vine.

And so obviously universities did what was the logical thing. They changed all their policies to comply with what the administration wanted. Unfortunately, that was in direct conflict with a fundamental set of rights that we know of as The Bill of Rights. So this violated students’ first amendment rights, this violated students’ due process rights, because universities not only have to have the policies on the books that reflected what the Obama administration wanted, but they also have to show that they were taking action in case anything happens. There was a rash of students that started encouraging each other’s to report, report, report everything, and so what we kind of saw was … I mean I think of this kind of in economic terms, almost as a public choice problem, where schools created Title IX offices, and the Title IX officers need to show that there’s a problem on campus.

So, they encourage students to report everything, and then when your reporting numbers go up, it shows there’s a problem. Okay, so then suddenly these bureaucracies start to grow and grow and grow, and so it looks like there’s a huge problem, a crisis on campus, when is that what’s really going on? Or frankly, have mountains been made out of molehills, in many cases. And so the problem got very, very bad and that’s why the Trump administration has stepped in to try and straighten some of this out.

Beverly:

And I know that you were talking about people’s rights being violated because they want to get an education and the legal process for them on campus is different elsewhere. So just to give us maybe a basic example, if you had two adults and they were not on campus and the woman accused a man of sexual harassment of some sort, how would that be treated differently off campus than if this was an accusation and they were both students at a university?

Nicole:

Sure. Yeah, if this was just two people meeting in the city of Chicago where there was a he said, she said, the police would be involved. They would investigate. They would take accounts from both sides. They’d figure out, assess the credibility of one side over the other. Universities don’t have those kinds of policies or didn’t have those kinds of policies on the books. A lot of the policies that were encouraged, again, by the Obama administration, were basic things, I mean rights that you assume that all Americans have, the right to access the evidence against you, the right to know about the charges against you in a timely fashion, the right to cross examine your accuser to kind of show their credibility, the right to introduce evidence that might clear your name. All of those things were off the table, and in many cases, schools had something called the single investigator model, where it was one Title IX investigator that would talk to the accuser, talk to the accused, look at the evidence, and then they would be … I mean, for all intents and purposes, judge, jury, and executioner.

They would make a decision. There was nobody else brought in, and again, people coming from this bureaucracy, I think, unfortunately … I guess the term [inaudible 00:08:26] is biased. They have kind of an inherent bias to find in favor of the woman, and so that’s why we’ve seen, I think over the past 10 years there’s been at least 600 lawsuits brought by students who have been accused of Title IX violations in state and federal court saying, “My rights were violated. I was railroaded,” and in many cases, these headline findings have been overruled by federal courts, by state courts saying, “This is not how these processes are supposed to work,” and so these accused, in many cases, boys, have been exonerated, and people now refer to Title IX proceedings as kangaroo courts, and that in my mind is the kind of thing that does a disservice, both to alleged victims as well as alleged accusers, because that’s not a just system. If people don’t have faith in that system, then … everybody deserves better than that.

Beverly:

And as you said, the Trump administration has stepped in on this. The department of education has sought to make changes. On May 6th of this year, they announced that they would issue a final rule imposing certain obligations on colleges and universities under Title IX. What are these new provisions?

Nicole:

Sure. As much as the press has made it out to be a really apocalyptic thing, there were actually a number of very basic changes. One of which was an expressed presumption of innocence. According to a 2019 study by the foundation for individual rights and education, nearly three quarters of America’s top universities do not expressly guarantee students that they would be presumed innocent until proven guilty. That is a horrifying statistic. They improved the impartiality of proceedings. The schools now under the new rules have to provide procedures that are both prompt and equitable. So students now have time to prepare for interviews and a hearing. They must receive written notice of the allegations. The universities must disclose prior to interviews the identity of the parties involved in the incident, what the conduct allegedly was. The fact that students didn’t have access to this until now, I mean, as a parent, as a citizen, just absolutely sickens me that this is the kind of thing that students around the country have been exposed to.

Students now have access to evidence related to their evaluations. Schools must post their training materials on their websites so that you’re able to determine is the person who’s investigating this is the panel who you’re going up before, or have they been told that there are things like trauma informed allegation, where if somebody starts to change their story over and over again, under trauma informed training, that is evidence that you’ve been traumatized, or it could also be evidence of the fact that somebody’s making some of this up, but if a training material … if you know how an investigator has been told to look at a situation, then that will inform your defense, quite honestly, and again, the single investigator thing has also been banned, which is good.

Beverly:

And when do we expect to see these regulations go into effect? Do we expect it in the fall semester? I know so much has been upended because of COVID. Have there been delays in instituting these regulations because of the coronavirus?

Nicole:

That’s a great question, and they are supposed to take effect on August 14th. So very soon, and somewhat surprisingly … unsurprisingly, I’m kidding … there have been a number of schools that have pushed back against that. Again, as you said, the rule came out May 6th and the school said, “This is far too short a time horizon for us to be able to implement these sweeping changes. How dare you?” And so we’ve seen as a result a number of lawsuits asking the implementation of the rules to be pushed back to allow for more time, and I’m pleased that … we worked with Jennifer [inaudible 00:12:18] Law Center to intervene in these cases, because we believe … first we sent a letter to department of education saying release the rules before they came out, and then we were able to intervene in the lawsuits because we feel that schools have had ample opportunity.

They knew this was coming out. They’ve had a heads up since early 2017 that the rules were coming. There were preliminary rules that were released. There was a huge amount of feedback. The department of education took about 18 months listening to feedback on the different rules to tweak them. So schools have had an ample amount of time to prepare for this. They knew this was coming, and with students not on campus because of COVID, Title IX investigators aren’t investigating anything, and so they are able to change the policies, do the training, meet via Zoom to discuss these. So this is not something that has been swept in out of the blue, asking people to totally rewrite things. They’ve had a huge amount of time, yet they’re still crying foul.

Beverly:

And how many legal battles are you talking about? As you just mentioned, IWLC, Independent Women’s Law Center, joined with you and the Foundation for Individual Rights and Education, filing a petition in July in the US district court for the district of Massachusetts, asking to participate in specific litigation revolving around this. Where else are you trying to help with the litigation process? Are we seeing a lot of cases?

Nicole:

Yes. There have been four major cases that have been brought. The first of all that was brought was by the ACLU, that organization that used to respect and defend civil rights. So that was brought in Maryland. There was also a case dropped in DC by a group of the 17th state attorneys general. Following up, there was a case that was brought in New York, just solo by the New York attorney general, and then a fourth case was brought in Massachusetts by the National Women’s Law Center, and so we, working with IWLC and Fire, filed motions to intervene in three of them, and then Fire is intervening on their own in New York for a complicated set of reasons, and so we were granted an intervention, and to intervene means that we are now one of the defendants.

We want to defend the rules because we want to represent, as you said in the introduction, we’re a membership association, and so we represent … our members are made up of students as well as concerned citizens around the country, and we believe that the new rules not only better protect our student members rights, but that they’re actually constitutionally required, and that, somewhat surprisingly, is an argument that the department of education and the department of justice are not … they’ve not made in these cases, and so no matter what happens in November, we want the courts to say, yes, these rules are required by the constitution. And so no matter who is in charge, no matter what the administration is, that they’re not allowed to backslide again on due process or first amendment protections, as far as sexual harassment goes.

Beverly:

And Nikki, I have another question for you. I’m sure you’ve gotten this before, and that is you are pushing for more regulation. You are saying that the department of education needs to step in. What do you say to conservatives and libertarians that say we don’t need more government involvement, we need less? Why do you think this regulation is the appropriate move we should take?

Nicole:

I think what it’s doing is it’s setting guardrails on it. I mean, yes, I have worked in conservative, libertarian politics for 15 years at this point, and so ideally there wouldn’t be a department of education doing all these kinds of things, but that’s wishful thinking. There is, and the department’s not going away, the involvement of the federal government and higher education is not going away, and so that’s why I want these kinds of guardrails that don’t allow universities to overstep bounds that will step on students’ rights. Students are adults, they’re citizens. They vote, they should have the right to be protected on campus, and there have been Supreme Court cases that have said that students’ rights don’t stop at the school house door, and we believe they don’t stop at the campus gates either, and if we have to remind schools, through litigation, that that’s what’s going on, so much the better. It’s sad that we have to, but unfortunately a lot of universities, they violate students’ rights, even knowing what their obligations are.

Beverly:

And before we go, just want to quickly touch on the Supreme Court decision Bostok versus Clayton County. That dealt more with the employee/employer relationship and what they said was protecting the employee from discrimination. Some people have then said that this case is going to impact women’s sports. How could this potentially impact women’s sports, this decision?

Nicole:

Well yeah, it’s been really interesting to watch groups like Alliance Defending Freedom litigate on behalf of female athletes who have felt that rules governing fairness in women’s sports that have allowed or enabled the participation of transgender athletes to compete in women’s sports. They have felt disadvantaged because it’s hard for them to win against people who have different muscle structure, different bone structure, different sets of muscle fiber composition, and so yeah, it’ll be interesting to see how … if employers are not allowed to discriminate on the basis of sexual orientation, it seems that there are probably implications then for women’s sports, as far as Title IX. If you can’t treat an employee differently, then why should you treat a student differently on the basis of sexual orientation? And so how this all shakes out in terms of ADF cases and in Idaho, in Connecticut to defend the rights of female athletes remains to be seen. But I think it really has opened the door for transgender athletes to compete against women on the same footing that they have claimed that they want, and so that might set female athletes back in the future. So that remains to be seen.

Beverly:

And IWF has been doing a lot in this area. I want to let our listeners know if they go to iwf.org, they can sign the petition demanding for fair play for women. So if you care about women’s sports, go and sign the petition. Nikki, just final question for you with these cases that we’re seeing revolving around the department of education, their new regulations, what do you think your chances are on winning these cases? I mean, obviously you have a strong case, you have the constitution on your side, but do you feel like this is an uphill battle?

Nicole:

It’s funny, everybody jokes about the courts. If there are not Trump judges, there are not Obama judges. I do think that we will prevail. I do think we were granted our motion to intervene in DC, which I think is kind of the big lawsuit of all of them, and I think this will frankly probably end up before the Supreme Court, but I think that the rules were carefully designed, thoughtfully designed over a period of months in order to restore rights that students should have always had in the first place. I think that is a laudable goal, and it’s ugly, but it is a battle I think that is worth winning, because in the work that I do for Speech First, so many of the problems that I have seen in the campus speech space have come from over-interpretations, misinterpretations of Title IX, and so I think in my mind, fixing Title IX is almost like cutting off Medusa’s head, as far as some of the campus speech problems go, and so I think this is going to go a long way towards restoring equity and fairness on campus and restoring a little bit of sanity to what has become, frankly, a kind of insane space.

Beverly:

Well, Nikki, we so appreciate your work on Title IX. We appreciate you joining forces with IWF and we especially thank you for joining us on She Thinks today. Thank you so much.

Nicole:

Thank you.

Beverly:

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