The HIV Positive Health Care Clinician: Rights, Obligations, and the Academy

The questions raised by a case of an HIV positive student-clinician in an acupuncture school provide an analytical framework for considering the many conflicts raised by HIV positive health care providers in general. A number of conflicting social values are discussed in the context of federal and Maryland state law. HIV positive people are protected by certain antidiscrimination laws, provided they do not pose a significant risk of transmission. This protection must be balanced against the rights of patients to informed consent, the relative risk of a relatively noninvasive procedure such as acupuncture, and the academic freedom of the school to determine the qualifications of its graduates and the methods by which they are educated. This evaluation and balancing of competing values on a case by case basis provides the most rational and effective policy for dealing with infected providers

Title IX Violations Arising from Title IX Investigations: The Snake is Eating its Own Tail

In 2011, the Department of Education Office of Civil Rights published a Dear Colleague Letter (DCL) detailing the department’s views on the roles and responsibilities of colleges and universities under Title IX specifically as they relate to allegations of sexual assault. Numerous studies conclude that close to 1 in 5 college women are sexually assaulted while enrolled in institutions of higher education. Many of these studies are flawed yet they are being used as the justification for administrative overreach. Despite not having the legal authority, the DCL changed the legal standard to be applied when conducting sexual assault investigations from the clear and convincing to the preponderance of the evidence standard, and threatened to withhold federal funds if immediate and effective steps were not taken to end sexual assaults on college campuses. This pressure from the OCR resulted in an overly broad approach where the rights of the accused are being routinely ignored. Over the last couple of years, dozens of cases have been brought by expelled or suspended students claiming that school officials committed Title IX and due process violations during their respective Title IX investigations. Some have also successfully pursued claims for breach of contract. This paper examines the prevalence of sexual assaults on college campuses and is critical of published reports as being overly inclusive. It reviews early cases, which were typically dismissed under both the selective enforcement and erroneous outcome prongs, and later cases where courts found that school officials acted improperly and violated the rights of the accused. Sexual assault on college campuses is a serious problem and all allegation should be investigated promptly, but not at the expense of due process. Policy and practice recommendations are included

Rape Law Revisited

This essay introduces the Ohio State Journal of Criminal Law Symposium, “Rape Law Revisited” (Vol. 13(2)). The Symposium features articles by Deborah Tuerkheimer, Kimberly Ferzan, David Bryden and Erica Madore, Bennett Capers, and Erin Collins. The symposium provides fresh perspectives on the issues surrounding sexual assault law and policy in today’s environment. The introduction notes that the current rape reform redux is not just a rehashing of old arguments, but boasts many new features. Today’s rape activism occurs in a moment when feminist ideas about coerced sex no longer exist at the margins — they govern and enjoy cultural acceptance, if not hegemony. Today’s reformist dialogue presumes that to condemn rape is to fight patriarchy itself, even as it elides other questions of sex, sexism, and the relationship between the two. Today’s rape activists seek to unsettle gender categories and be inclusive, even as they emphasize violence against women, in particular. Today’s rape reforms purport to intervene in hypermasculine sexual “culture,” but such intervention often consists of neoliberal, individualistic programs to prevent and punish sexual transgression. The introduction maps the contours of the rape issue’s new legal and political terrain and welcomes both novel and reformulated perspectives and responses

Are Campus Sexual Assault Tribunals Fair?: The Need for Judicial Review and Additional Due Process Protections in Light of New Case Law

The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been wrongfully held responsible for sexual assault violations due to flawed disciplinary procedures have brought lawsuits against their schools. Recent case law demonstrates that some schools, in an attempt to comply with Title IX, have employed procedures that are fundamentally unfair to accused students. This Note considers the interests involved in campus investigatory and adjudicatory systems through an analysis of recent cases and the procedural flaws that have emerged. It further evaluates procedural protections that would strike a better balance between the interests of the accusers, the accused, and the schools. In conclusion, this Note argues that in light of the recent case law, more meaningful judicial review and additional due process protections are necessary for accused students

Title IX and the Alleged Victimization of Men: Applying \u3cem\u3eTwombly\u3c/em\u3e to Federal Title IX Lawsuits Brought by Men Accused of Sexual Assault

This Note provides a survey of the current state of Title IX law as applied to anti-male bias lawsuits and suggests how courts should apply Twombly’s plausibility standard to anti-male bias claims going forward. Part I of this Note provides an overview of sexual violence on college campuses and the history of Title IX regulations and jurisprudence. Part II offers a brief history of Title IX anti-male bias lawsuits, examines the structure of anti-male bias lawsuits, and analyzes the various pleading standards applied by courts. Part III lays out the types of facts pled by Title IX anti-male bias plaintiffs and discusses what facts should be viewed as sufficient to meet Twombly’s plausibility standard. In Part IV, this Note looks at the future of Title IX anti-male bias lawsuits in light of new federal regulations and discusses the implications of these lawsuits for claimants and respondents in campus Title IX proceedings