Hi, this is Erica Merrill and I’m the founder of perfectly legal video. And today Ihave with me attorney Brian Jones, he is a criminal defense attorney out of Ohio, andhe is here to talk about some ground breaking news that has just come out, in the, inthe industry of the law. And it is about title nine of the education amendments. It isa federal civil rights provision enacted by president Richard Nixon in 1972. Andwe’re gonna, I’m gonna let Brian tell you more about what has happened and thechanges in this law over, over the past few decades. so Brian, thank you so much forjoining us and, we’re very excited to hear about what’s happening in the news rightnow with this amendment.
00:53 – 01:39
Thank you, Erica. Yes, there have been some major changes, going over the last six years, really. and the most recent changes coming out just here in the past couple of days, May 6th of 2020, title nine was originally enacted, back in 1972 and it was largely left unused, until the early two thousands when it started being used at universities primarily, but it also applies to, high schools and, and really any institution of learning and what it’s been being applied to more and more is, sexual harassment allegations and sexual assault allegations on school campuses.
01:41 – 02:32
Wow. This is pretty amazing because you and I have had several conversations surrounding the fact that, unlike most crimes that happen where you are innocent until proven guilty, in the cases where sexual conduct is in question, typically it is the accuser that is assumed to be right, and it is up to the person being accused to prove their innocence. So this is, so that is why this is so groundbreaking. And so if you can tell us what some of the key differences are between, Obama’s changes that happened in 2014 until the ones that have just happened over the past few days.
02:33 – 03:37
Absolutely. Erica. So back in 2014, schools were required to process these complaints regardless of where the conduct occurred, whether it was on campus or off campus. If the participants in the alleged conduct were both students, then title nine apply. the change that came out just a couple of days ago, restricts that, and schools are no longer responsible responding to sexual violence that occurs off campus. Now the other, the next big change is the right of cross-examination under the changes in 2014, the accused person, lost the right of, of cross examination in these title IX hearings, meaning that they didn’t have any right, guaranteed by title nine to confront and ask questions of their accuser. they didn’t have to be in the same room as their accuser during the time of the accuser’s testimony. So they really, it was, it was kind of a black box that the allegations were made in.
03:38 – 04:46
And then the person that was being accused had to come in and try and refute allegations that in large part, they knew nothing about the 2020 amendment or changes in the application of the rules requires cross examination and allows cross examination through a third party. it does not allow the accuser him or herself to do that examination. but they can bring in an advocate, a criminal defense lawyer in Delaware, a friend, a parent, somebody else to do that, cross examination for the person that’s being accused. The other major difference is that sexual harassment is now defined under an objective standard rather than a subjective standard. So while a person may come forward and make an allegation of sexual harassment, that sexual harassment is, is judged in terms of what a reasonable person would feel is sexual harassment under the circumstances rather than, sexual harassment being, something that the person who’s making the accusation defines for themselves.
04:47 – 05:58
Lastly, the hearings while previously being required to occur on campus can now occur via, electronic means or can occur off campus. So a lot of cases that have previously been put on hold as the result of the COVID-19 pandemic will now likely move forward in some electronic media, which creates its own whole host of other issues regarding confrontation. and the rights that a person who has been accused should be entitled to, the other minor change is to whom an individual making an accusation must make that accusation to it used to be that a formal title, nine complaint could be instituted through any member of the faculty administration, counselor, or school agent who is residing as a residential advisor or an RA. another student that serves in a supervisory capacity in a dormitory. Now the title nine proceeding must be initiated through the title nine office of the institution.
06:00 – 06:37
Wow. Okay. So it sounds like they’ve, they’ve changed the process up a little bit for how you, how you are reporting the sexual misconduct that you, you want to report. And there’s a whole bunch of other changes. One thing that came to mind when you were talking about some of the differences was, you had mentioned that there was a difference in the right to see your accuser. Now, everything is virtual. Are you saying that you think that results will end up being a lot different because of this
06:39 – 07:48
Erica, this is literally the cutting edge of criminal defense right now, there are courts all over the country trying to figure out how to move forward in this pandemic and in the new normal that we are likely to experience for at a minimum months and possibly years to come. The, the Rite of cross examination is the right to confront your accuser in confrontation, being face to face with the person who’s making an accusation against. You has been rooted in Western law since Roman times, the ability of somebody to talk behind your back and spread rumors about you is very easy. We’ve talked previously about how it’s very easy to make an allegation. It’s a whole different situation when you have to look somebody in the eye and make those allegations against them to their face. And that’s one of the reasons why the right of cross examination and confrontation is so critical.
07:48 – 09:02
Now, as we’re talking about these title nine cases, if they were to occur in a remote setting, we don’t know right now whether, people who are accused can object to that and say, I’m not willing to engage in a remote, video conference situation or remote hearing, that that can ultimately result in severe penalties and consequences both to my career and to my education. the right of cross examination is the right of the accused to explore those allegations here, the testimony against him or her and offer his or her own explanation of those events. Prior to this change prior to the 2020 change, universities were allowed to impose what we and our office called the potted plant rule. And it’s funny w a university that we are frequently handling title nine hearings in front of, implemented this rule. After a couple of that, we were involved in, the first hearing we were involved in, and this was post 2014 change.
09:02 – 09:57
we went in, we acted like attorneys. We asked questions, we cross examine witnesses, and we were able to secure a dismissal of the complaint against our client. The next hearing that we came into, they told us, we, as attorneys are not allowed to ask questions, the person who’s being accused has to ask all the questions. So we were able to communicate in real time with our client, advise him, coach him on what questions to ask and the order in which to ask questions. We, again, secured a dismissal of the title nine allegation against our client. The next time we came in front of that university, they imposed what we are now calling the potted plant rule. We were not allowed to communicate with our client. We were not allowed to, give him any advice during the hearing. We had to sit there like a potted plant and do nothing during the hearing.
09:57 – 10:56
Our client had to do all the questioning I had to do so on his own. And by himself. Now we have a process that we developed where we train our client on how to act as an advocate in that scenario, an advocate for himself or herself in that scenario. But we could see the progression and the application of the 2014 changes as we were continually more and more successful in this university, getting allegations dismissed and for what it’s worth that third allegation was also resolved in our client’s favor. Now this 2020 change allows us to go back to the original scenario and allows us to be advocates in the, in the hearing room for our client. The thing about these cases, Erica, is that the students face a lack, the, excuse me, the students face the opportunity to lose their academic scholarships. They can get removed from fellowships.
10:57 – 11:36
They can be kicked off their athletic teams and they can, they can even be expelledfrom school based on these allegations. So these 2020 updates grant, a level of dueprocess, that was, that was available before 2014, but has been stripped away, bythose changes. Now in 2020, the accused now has at least a minimum level of dueprocess rights, when these allegations come out. So this is going to help your processin the long run. It is. It’s going to allow us to go back into the hearing room and bean advocate for our client.
11:37 – 12:10
I can’t even imagine what you were describing before the potted plant situation, where you, you are there with all the knowledge and the years of schooling and experience, and this person has hired you. And you’re not even really allowed to say anything. I mean, I’m sure that you did your best ahead of time to prepare them and you know, what’s going to happen, but wow, how nerve wracking. It must be for someone who’s not a criminal defense attorney and to get up there and try to almost defend themselves.
12:11 – 13:07
Exactly. And there’s the old adage that the individual who represents themselves, who goes into a hearing pro se has a fool for a client. And that means that if you’re trying to do this by yourself, you’re really making a huge mistake. What makes this even worse Erica, is that some universities have law schools associated with them and even schools that don’t have, you have law schools as a skated with them have pre law programs where undergraduate students learn trial advocacy skills. And those students, both law students, and the pre law students who have trial advocacy skills were able to act and advocate on behalf of accusers. So not only was our client in that situation, having to do all the advocacy for himself, but he had somebody who was trained in trial techniques, advocating against him. Wow.
13:07 – 13:25
Not seem like a fair fight. So will the change in the definition of sexual harassment and who the accusers may report accusations to result in less protection for alleged victims of sexual harassment or assault
13:26 – 15:10
Absolutely not. Accusers have always had the ability to report their accusations to really anybody on campus. And the vast majority of these people on campus are what, what is called a mandatory reporter. So when you talk about administration officials, counselors, residents, assistance, RAs, they have always had a duty to report any allegation that they receive to the title nine office. So while the formal report has to be filed in the title IX office and can no longer be filed with your RA, the student, who’s your buddy that lives in the dorm room next to you, the ability to make that report to your RA still exists and hasn’t changed at all. The other thing that hasn’t changed is the fact that accusers have always had the right and still have the right to report their allegations to law enforcement or to file a civil suit based on the allegations. The changes that we have now, the 2020 changes ensures that a proper investigation is done by people who are trained to do the investigation, not students who have an agenda and friendships to maintain possibly even, you know, sorority and affiliations, fraternal affiliations that they want to take advantage of, or maybe another fraternity that they want to take down. The investigation will be done by properly trained individuals. And the due process rights of the accused will be protected
15:13 – 15:35
Well, well, I mean, this sounds like a step in the right direction. for so many years, it hasn’t been this way. And now at least people have a fighting chance against their accusers. If they are wrongly accused, they’ll at least be able to defend themselves and be given the benefit of a doubt right upfront.
15:36 – 16:40
That’s exactly right. Erica, this change provides structure to a system that was overrun with the start by believing mentality where the mere allegation of a sexual impropriety would result in suspension from school suspension, from athletic opportunities, suspension, from educational opportunities and fellowships, and gives that minimum level of due process. When we’re talking about these substantial property rights title nine is a tool that’s used to ensure fairness and eliminate gender discrimination. But what has happened over the last six years is that pendulum has swung too far. One way the modifications to the application of the rules in title IX now truly ensure fairness to people of all genders, all across the spectrum and allows everybody to be on 11 level playing field when they go into these here.
16:43 – 17:09
Well, that is fantastic. And it’s nice to see when there are changes in the law that are going to really positively affect, you know, what happens in the future. So I’m really happy that this is going to help things be more fair. And, thank you so much for telling us about this. Brian, did I miss anything today any questions, anything else that you wanted to go over
17:10 – 17:60
You didn’t Erica, what I’d like to encourage our audience to do is if you have questions about these issues, make sure that you put those questions in the comments we’re eager to engage with all of you and find out what your interested in about two years ago. our firm participated in a title nine symposium, and we saw these changes coming, and we actually wrote some blog posts about it back then. but we want to stay on the cutting edge and we want to be here for you, in, in the most relevant media possible. And that’s why we’re doing these, web interviews, these video interviews, but want to continue with our engagement with our audience. And so if you have questions about this issue or any others, feel free to pop them down in the comments and we’ll, we’ll get a response to you.
18:02 – 19:34
I do want to mention that, right now we are in the middle of a pandemic, you know, this information might be disseminated in the future. certain pieces of, of this interview will certainly be evergreen. but at the moment, you know, we, we are doing this and I do want to mention that Brian Jones, his office is open for business during this time. And if you, or someone, you know, needs some advice in any of the areas that we talked about, any kind of criminal defense, even if it has to do with DUI or, you know, a number of other issues, they are very experienced. They are, they’ve been open during this whole time, helping clients, working virtually with judges. As I know that you were just on the, on the phone with one, helping handle a case, for one of your clients. so I just would like to tell everybody that if you do have a question, please pick up the phone and call the information is right here on the video. And, you know, it’s better to get information now, then, you know, just kind of guess and wait, and, be in a worse situation later on. Thank you so much for joining us today, Brian, this has been groundbreaking and interesting, and, we really appreciate that. You keep us up to date on everything that’s happening in the news right now.
19:36 – 19:37
You’re welcome, Erica. Thank you.