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What’s Really Behind the Backlash to Women Seeking Title IX Protection Today?

What’s Really Behind the Backlash to Women Seeking Title IX Protection Today?

To address the question of why we are seeing a backlash against women seeking Title IX protection on college campuses we must understand some fundamental truths.  First, to this day women are treated as an underclass in academia and in the workplace. 

irwin zalkin law firmThis is despite civil rights legislation that was passed in the 1970s to foster equal access and equal pay for women in the job market (Title VII), and equal access to academic opportunities in education (Title IX). The idea was to eliminate covert or overt hostility to women that served to impede the ability or the desire of women to compete equally with men for the fundamental right to an education and to a good job at a fair and equal wage.

As a society, we have failed women in both settings.  The failurein academia operates as a gateway to discrimination in the work place.  For this reason, it is vitally important that we understand the failings of institutions of higher learning in this country to promote gender equality, and to provide women with equal and safe access to educational opportunities.  Correcting this historical problem is not as difficult as one might believe.  The blueprint has been provided by the federal Department of Education for almost two decades.

Since the election of the current President and the appointment of Betsy Devos as Education Secretary and the head of the U.S. Department of Education, there have been challenges and recriminations by a crescendo of voices 

suggesting that those accused of sexual misconduct towards women students have been and are being discriminated against in favor of an attitude that presumes the accusations to be true and a bias towards coddling the accuser at the cost of due process.  The problem is that this backlash is focused on the “wrong syllable.”  The real issue is not that universities aren’t getting it right in a debate over he said- she said.  They haven’t been getting it right, because they have systematically ignored the guidance given to them by the Office for Civil Rights (OCR), the arm of the Department of Education (DOE) responsible for implementing and enforcing Title IX.

Title IX is funding legislation.  It simply provides that no academic institution that receives federal funds can discriminate based on gender.  In 2001 the OCR issued a Guidance Document on how schools, secondary and higher education, that receive federal funds, are to address sexual harassment.  A “Guidance Document” is a kind of rules of the contract between the funding source (federal government) and the funding recipient.  These are the rules the funding recipient school must abide by or the funding source can pull the plug.  The original 2001 Guidance document was revised in 2001 and the OCR issued a supplemental letter known as the Revised Sexual Harassment Guidance.  The idea was to provide uniform policies and procedures for eliminating a hostile campus climate that inhibited women from achieving their full academic potential.  The problem is schools didn’t pay attention, ignored the OCR Guidance, and continued with a hodgepodge of disparate policies that were by and large wholly ineffective and non-complaint with OCR Guidance.

The consequences started to come to a head after public disclosure by the DOE in 2009 that showed in that year alone there were 3,300 incidents of forcible rapes reported on college campuses, and during the 2007-2008 school year there were 800 reported rapes and attempted rapes, and 3,900 sexual batteries reported in public high schools.   And those are only what was reported by the victim or the school.  Studies show that most acts of sexual violence go unreported.

In 2011, the OCR issued what is referred to as a “Significant Guidance Document” known as the Dear Colleague Letter (DCL) to federal funding recipient schools which addresses in detail the history of the problem of campus sexual violence, abuse and harassment and lays out an exhaustive process for how to respond to reports of sexual harassment and violence.  It requires schools to respond immediately to notice of such a claim by initiating an investigation.  It provides instructions on how to conduct such an investigation which includes giving both the victim and the accused a formal hearing with every opportunity to provide evidence, witnesses, and even to have attorneys represent them if both sides agree. It provides with interim measures that schools can use to protect the victim from further harassment without necessarily pre-judging the allegation as true or unfairly burdening someone who is accused before any findings have been made substantiating the claim.

If only schools would have adopted these measures we very well might not be having the current debate.  Unfortunately, and for a variety of reasons, recipient institutions as before, largely ignored the DCL.  One of the reasons is the mandatory reporting of such crimes to the DOE under what is known as the Cleary Act.  The Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (Clery Act).  Under the Clery Act, schools must report crime statistics to the DOE that are publicly disclosed so people can make a judgment of how safe a school is.

The last thing colleges want is to be known as an unsafe school.  To avoid Clery reporting, many schools took the position that they only had to report “substantiated” claims of sexual violence.  Others assumed that if they could resolve the claim through “an early resolution process” instead of a formal due process hearing, then it was not required to be reported.  Rather that operating to incentivize schools to put a stop to sexual violence, schools focused more on how to avoid the mandate to report sexual crimes.

Once women began to take a stand, whether through activism, lawsuits, or documentary films, the DOE and specifically the OCR decided to do what it should have been doing and investigate what has been going on.  There are currently approximately 200 colleges under investigation.   What will come of those investigations given the views of the current administration is uncertain, but it doesn’t look good.

If these schools, and many more, had taken the DCL seriously, and engaged in efforts to deter a hostile environment to begin with, as well as implemented the procedures provided by the OCR for affording all parties due process, we might not be facing a “backlash” from those who believe that victims received preferential treatment.   Notwithstanding, there can be no question that the culture on school campuses, and indeed worldwide, that degrades and demeans women, needs a serious overhaul, starting at the top of the current administration.

Dallas News Editorial Supports Court Ruling on Baylor Lawsuit

Dallas News, April 2017

Dallas News recently published an Editorial about the lawsuit filed by the Zalkin Law Firm against Baylor University on behalf of a victim of ca,pus sexual assault. "Hernandez's lawyer, Irwin Zalkin, made clear after the ruling that he sees this as an opportunity to expose all of what the university has tried so hard to cover up. As we've noted in many editorials, the courthouse is the best hope for providing what the Baylor board of regents won't -- a full airing of the facts that regents have maintained they must keep secret from students, faculty, alumni, donors and the rest of the public."

To read the full editorial CLICK HERE.  

Irwin Zalkin was interviewed for an upcoming documentary about the Jehovahs Witnesses. Here is his message and a... http://fb.me/1bZnAXjjh 

Irwin Zalkin was interviewed for an upcoming documentary about the Jehovahs Witnesses. Here is his message and a... http://fb.me/1bZnAXjjh 

These 114 Sexual Assault Survivors Have WORDS for Betsy DeVos http://fb.me/3AfZdqdSe 

These 114 Sexual Assault Survivors Have WORDS for Betsy DeVos http://fb.me/3AfZdqdSe 

We're hiring! Apply now.

We're hiring! Apply now.

Irwin Zalkin was interviewed for this BBC show. His interview highlights how our firm has been trying to get the... http://fb.me/4NzyIfqzt 

Irwin Zalkin was interviewed for this BBC show. His interview highlights how our firm has been trying to get the... http://fb.me/4NzyIfqzt 

Irwin Zalkin Interviewed on BBC Radio

BBC Radio 4, April 30, 2017

Irwin Zalkin was interviewed for this BBC showboat childhood sexual abuse lawsuits against the Jehovah's Witnesses. His interview highlights the Zalkin Law Firm has been trying to get the files of child abusers that the JWs have maintained for decades but have received only four years of twenty years worth of data that has been so redacted it's difficult to use to give justice to survivors.

CLICK HERE to listen to this interview.  

Dallas News Editorial about our lawsuit against Baylor. "Hernandez's lawyer, Irwin Zalkin, made clear after the... http://fb.me/744bHKA49 

Dallas News Editorial about our lawsuit against Baylor. "Hernandez's lawyer, Irwin Zalkin, made clear after the... http://fb.me/744bHKA49 

Our lawsuit against Baylor on behalf of our client took a step forward this month http://fb.me/IoaL3amH 

Our lawsuit against Baylor on behalf of our client took a step forward this month http://fb.me/IoaL3amH 

Federal lawsuits vs. Art Briles, Baylor can proceed, judge rules

ESPN, April 7, 2017

"A federal judge in Texas ruled Friday that a civil case against former Baylor football coach Art Briles over negligence claims made by a former female student who was raped by football player Tevin Elliott can go forward. U.S. District Judge Robert Pitman also ruled Friday that Jasmin Hernandez could proceed in her Title IX and negligence claims against Baylor University and her negligence claim against former athletic director Ian McCaw."

"[Briles] used the threat of helping Jasmin in her lawsuit against Baylor as leverage to negotiate his wrongful termination claim against Baylor," Zalkin said in a statement in June. "He doesn't care about victims. He never cared about victims. He's using victims. He used them to help build up his football program, and now he's using Jasmin to leverage more money out of Baylor."

Read full story CLICK HERE.

Columbia student claims she was sexually assaulted twice inside her dorm room

NY Daily News, March 22, 2017

The Zalkin Law Firm attorney, Alex Zalkin is representing a Columbia University student who recently filed a lawsuit against the university over its failure to protect her from campus sexual assault.   

Read full article CLICK HERE.  

This ABC 7 News story includes interviews with Alex Zalkin and his client explaining the lawsuit filed against... http://fb.me/1a5yngiUt 

This ABC 7 News story includes interviews with Alex Zalkin and his client explaining the lawsuit filed against... http://fb.me/1a5yngiUt 

test http://fb.me/2MNTmrbkH 

test http://fb.me/2MNTmrbkH 

The Zalkin Law Firm filed this civil suit in New York this morning on behalf of a victim of sexual assault at... http://fb.me/6m0nKBZKo 

The Zalkin Law Firm filed this civil suit in New York this morning on behalf of a victim of sexual assault at... http://fb.me/6m0nKBZKo 

Columbia University student sues over claim of uninvestigated rapes

WABC 7 News, March 21, 2017 A Columbia University student has filed a lawsuit against the Ivy League school, claiming she was raped on two separate occasions in her dorm room and that the school failed to protect her as she was harassed afterwards.  Amelia Roskin-Frazee said she is coming forward because she is angry with the university, and she is using the civil lawsuit as retribution. Attorney Alex Zalkin was interviewed in this report. 

 

View coverage Click Here.  

Facebook Policies Promote Sexual Harassment

FB

We are sharing this Facebook post by Rachel Kalisher, a friend of the Zalkin Family, because it has an important message about the growth of sexual harassment in social media.  Rachel was a victim of harassment on Facebook and here is her letter to Facebook complaining about their policies.  Her letter is worth a read for anyone who is active on social media.

Irwin Zalkin  

 

Dear Facebook,

This is an open letter urging you to review your sexual harassment policy.

Today it was brought to my attention that this photo of me is circulating the internet via a page called "I_have_cock_in_my_name", which is dedicated to misogyny and sexualizing women. While I'm pretty shocked, I am also furious. Here's why. This post had been shared almost 12,000 times, and comments include gems such as "she needs to dig in a lower cut shirt" and "[women] are like elephants..just when you think they have forgiven and moved forward, that shit is thrown in your face all over again like it just happened" or even "Confuse her!!! Give her a used tampon and ask her what period it comes from." As the person in the unsavory photo, my three options were to 1) message the poster, 2) block or 3) unfollow the page. How are these my options? How are any of these options guaranteed to solve my problem? How does your reporting method (only letting me report a page or a post without any description) help? I felt powerless. A person who runs a page rooted in disrespecting women would not take kindly to me asking them to remove it. In any case, I followed step one- messaging the owner of the post. You know what he did? After calling me "lady" and refusing to call me by my name, he told me that sure, he'll remove the post, but in its stead would put it on a page with "100000 admins" with the intent on making it go viral. He then said, "you should really keep your profile private" and then blocked me. That's a threat, by the way. I followed your instructions, continued to report, and yet somehow your harassment policies have STILL not been violated.

In short: these terms have to be changed. By neglecting to penalize the people who are responsible for this harassment, Facebook is encouraging this behavior. By not letting people contact you directly with supporting text, emails, or phone calls, you are giving asylum to people that have bad intentions. "I_have_cock_in_my_name" knew he would get away with it. When I said he would get kicked off of facebook he replied, "Never gonna happen. This picture doesn't violate any policy". Well, I guess we found the blind spot, haven't we? As a country, this is a reminder that we have leaps and bounds to go. Equality for women, let alone women in the sciences, is a huge passion of mine, and this horribly messed up post just makes me want to fight harder for it.

Please share this post, and let Facebook know that they need to protect their users from all forms of bullying!! Sexual harassment is a crime, including on social media.

THANK YOU FOR ALL THE SUPPORT AND LOVE

Rachel Kalisher

Victim of Sexual Assault by Police Officer Files Lawsuit against City of Helena, MT

Former Confidential Informant Files Sexual Assault Civil Lawsuit Against the City of Helena, County of Lewis & Clark And Former Police Officer Matt Thompson

Lawsuit Alleges that Authorities Were Negligent in their Oversight of Officer Matt Thompson Were Aware of Sexual Abuse of Confidential Informants

Helena, MT.   The Zalkin Law Firm, P.C. and The McKeon Doud Law Firm, P.C. announced the filing of a civil lawsuit on June 3, 2016 against the City of Helena, County of Lewis & Clark, and former Helena Police Department Officer Matt Thompson on behalf of a victim of sexual assault at the hands of Matt Thompson.  The victim, named in the lawsuit as S.H. in order to protect her identity, worked as a confidential informant for the Missouri River Drug Task Force (MRDTF).

It was through her work as a confidential informant that she came to know Officer Thompson.  The lawsuit claims that Officer Thompson forced S.H. to engage in repeated sexual acts while he was both on and off duty.  He threatened S.H. with criminal charges and told her that her kids would be taken away if she did not comply.  He became increasingly physically abusive of S.H. as time progressed.

The lawsuit additionally alleges that the City and County knew of Officer Thompson’s dangerous and exploitive propensities and failed to use reasonable care in investigating and retaining him as an officer.  Once confronted with evidence that he could not refute, Officer Thompson admitted to having sexual relations with multiple confidential informants, including S.H.  Officer Thompson was allowed to resign from his position.  No formal complaint was submitted to revoke Officer Thompson’s POST certificates, nor were any criminal charges pursued against him.

Four causes of action against the defendants are detailed in the civil complaint--Montana Constitution Article 2, § 17, Violation of Substance Due Process, Negligence, Negligent Supervision/Failure to Warn, and Negligent Hiring/Retention.  The complaint asks for monetary compensation for physical and emotional damages, and past and future medical expenses for therapy and counseling.

Click this link for a copy of the civil complaint:  Helena Complaint -conformed copy 6-3-16

Media Statement of Jasmin Hernandez re: Firing of Baylor Coach Briles

May 26, 2016

Media Statement by Jasmin Hernandez: In Response to Baylor University Actions On President Ken Starr and Coach Art Briles images

Attorney Alex Zalkin and Jasmin Hernandez announcing Title IX lawsuit

“I am pleased to see that Baylor University has finally taken action to terminate head Football Coach Art Briles and demote University President Ken Starr for their failure to protect students like myself from sexual predators on the Baylor campus. I was raped by a Baylor football player in 2012 and that player is now in jail for his horrific sexual assault on me and other students.

These University leaders have known about sexual predators on the football team for years and never took actions to protect students. The University never offered me or other victims any support when we reported these sexual assaults and that lack of support led me to drop out of Baylor and suffer emotionally ever since.

I am glad that my Title IX civil lawsuit against Baylor, filed by my attorneys at the Zalkin Law Firm in March, has helped to call attention to the failure of Baylor to support the legal rights of victims of sexual assault at the university.

The media attention of the last several days has resurfaced the emotional damage that I suffered at Baylor and I am limiting the number of media interviews that I can do. Please use this statement to convey my feelings about these recent actions by the Board of Regents and to express my hope that these changes will serve to protect Baylor students from the suffering that I have endured.”

Former Baylor Rape Victim, Jasmin Hernandez, Title IX Civil Lawsuit  Contributes to Demotion of President Ken Starr and Termination of Football Coach Art Briles

The Lawsuit Named Coach Art Briles and Ian McCaw, Athletic Director as Defendants In the Civil Claim

San Diego, CA – The recently filed Title IX civil lawsuit against the Baylor University Board, Briles and McCaw on behalf of Jasmin Hernandez, a former Baylor University student who was raped by Tevin Elliott, a Baylor football player, has served as fuel for the Baylor Board of Regents action today to demote UniversityPresident Ken Starr and terminate head Football Coach Art Briles.  The lawsuit claims that Baylor failed to comply with Title IX requirements to investigate and support students who are victims of campus sexual assault.  The complaint was filed in March in the United States District Court, Western District of Texas, Waco Division.   The lawsuit alleges that Football Coach, Art Briles, was well aware of prior sexual assaults by Elliot and failed to take any action to protect other students from this predator.

This week, as news of the Board of Regents actions to possibly terminate or demote President Starr came out, Jasmin has stepped forward to offer her comments to the news media about her case and what she endured as a sexual assault victim at Baylor.

“Jasmin Hernandez showed incredible courage by publicly stepping forward and filing this high profile complaint against the University,” said Irwin Zalkin, attorney for Hernandez.  “As one of several victims of sexual assault by Baylor football players, her lawsuit added to the growing pressure on the University to take action.  Ken Starr, of all people, should have taken action sooner to prevent sexual harassment and assault against female students, and Art Briles should have been terminated long ago.”

The civil complaint outlines the details of alleged sexual assault and rape suffered by the Plaintiff, Jasmin Hernandez, while she was a student at Baylor University.  Ms. Hernandez was a Baylor freshman at the time she was raped by Tevin Elliott, at an off campus location in 2012.   Elliott was eventually charged and convicted of the rape and is presently serving 20 years in prison.  Ms. Hernandez was one of six women who reported that they were either raped or assaulted -- in incidents from October 2009 to April 2012 -- by Elliott, who was convicted on two counts of sexual assault in January 2014 for the incident involving Ms. Hernandez.

The civil complaint details how the Plaintiff reported the rape and sexual assault to university authorities who refused to investigate, and never offered any support or assistance to Jasmin. She also reported the sexual assault to Baylor Campus Police.  She contacted the Baylor Student Health Center to seek counseling and was told there was no one who could help her.

Her efforts to seek support after her rape continued when her mother contact Baylor’s academic services group for assistance and was told there were no resources available to help her daughter.  Another call was made to academic services which only led to exit forms being given to Ms. Hernandez to sign with no offer of academic support.

Hernandez’s mother and father both sought to speak with Coach Briles directly, but those efforts were rebuffed.

She lost her academic scholarship and eventually dropped out of the University, moved home to attend a community college, giving up her dream to study nursing at a major university.

Federal law known as Title IX requires academic institutions who receive federal funds to protect students from gender discrimination including sexual harassment and sexual assault by fellow students.  These institutions are required to respond immediately and equitably once it receives actual knowledge of a report of sexual assault of a student. They must also act to protect the victim from further harassment and exposure to a hostile environment including providing the student with adequate accommodation so that she is not denied equal access to academic opportunities.  The complaint contends that Baylor failed to meet its responsibilities under Title IX and state common law negligence law that require universities to provide security, counseling services and academic help to those who report sexual assaults.  

Irwin Zalkin CNN Interview On Baylor Scandal

The Baylor University campus sexual assault scandal is finally getting the attention of the Baylor Board who is considering the fate of President Ken Star.  Irwin Zalkin and our client Jasmin Hernandez were featured in the CNN News story.

CLICK HERE to see CNN story.