WEBVTT - Musk 'Twitter Sitter' & Title IX Rules Challenged

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Elon Musk has been trying to get rid of his

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<v Speaker 1>Twitter sitter for years, even though he agreed to have

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<v Speaker 1>a lawyer preapprove his Tesla tweets as part of a

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<v Speaker 1>settlement with the SEC in twenty eighteen, although it's unclear

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<v Speaker 1>exactly who is watching over his social media posts and

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<v Speaker 1>how much watching they're actually doing. In an interview on

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<v Speaker 1>sixty Minutes at the time, the billionaire didn't seem too

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<v Speaker 1>concerned about getting that supervision. The only tweets that would

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<v Speaker 1>have to be say, reviewed, would be if a tweet

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<v Speaker 1>had a probability of causing improvement in.

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<v Speaker 2>The stock and that's it.

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<v Speaker 1>Yeah, I mean, otherwise it's hello. First Amendment, like creatio,

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<v Speaker 1>speech is fundamental. Freedom of speech is a fundamental constitutional right.

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<v Speaker 1>But that argument did not convince the courts to throw

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<v Speaker 1>out his Twitter sitter agreement, and this week the Supreme

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<v Speaker 1>Court refused to let his legal battle go any further,

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<v Speaker 1>turning down Musk's appeal without any comment. Joining me is

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<v Speaker 1>business law expert Eric Tally, a professor at Columbia Law School.

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<v Speaker 1>Elon Musk has battled the SEC over his social media

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<v Speaker 1>posts since he tweeted in August twenty eighteen he had

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<v Speaker 1>funding secured to take Tesla private.

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<v Speaker 2>Well, this was yet another example of mister Musk's penchant

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<v Speaker 2>for firing things up onto Twitter or x, you know,

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<v Speaker 2>sort of at the spur of the moment. And yeah,

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<v Speaker 2>this was an example. Back in twenty eighteen, mister Musk

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<v Speaker 2>dropped the tweets that basically said funding secured for you know,

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<v Speaker 2>buying out Twitter at four hundred twenty dollars a share.

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<v Speaker 2>And you know that number of the four to twenty

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<v Speaker 2>name is a very popular one for mister Musks used

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<v Speaker 2>to be all over the place of him. Well, people

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<v Speaker 2>took seriously this idea that funding was secured, and if

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<v Speaker 2>you looked into the backstory, the funding sources were not

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<v Speaker 2>nearly as secure as he signaled that they were at

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<v Speaker 2>the time. So that ended up eliciting two different legal

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<v Speaker 2>actions won by the SEC. And then there was also

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<v Speaker 2>a class action lawsuit, and he won the class action lawsuit,

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<v Speaker 2>but the SEC moved first and said that was misleading.

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<v Speaker 2>You didn't have the funding secured. We are going to

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<v Speaker 2>push our own regulatory action against you, and the matter

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<v Speaker 2>quickly settled, and it probably settled in part because the

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<v Speaker 2>SEC has a lot of heft when it comes to sanctions.

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<v Speaker 2>They can basically force someone not to be an officer

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<v Speaker 2>and director of a company for many, many years if

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<v Speaker 2>they chose to do so. So, the terms of the

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<v Speaker 2>settlement that mister Musk reached with the SEC included some

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<v Speaker 2>monetary fines that he had to pay, which was tens

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<v Speaker 2>of millions of dollars but kind of pocket change for him.

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<v Speaker 2>And in addition, he had to step down as chairman

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<v Speaker 2>of the board to keep his board position and CEO position.

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<v Speaker 2>But then the final thing is that he needed a

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<v Speaker 2>Twitter babysitter. He needed to consult with a lawyer before

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<v Speaker 2>he put things up on Twitter, so the lawyer could

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<v Speaker 2>sort of sound the alarm bells if what he was

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<v Speaker 2>about to do had a bearing on things like, oh,

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<v Speaker 2>I don't know, securities, fraud. And so that's effectively what

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<v Speaker 2>he had agreed to do in this settlement. And you know,

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<v Speaker 2>he is a guy that tends not to like being,

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<v Speaker 2>you know, overseen by lawyers or anyone else. And you know,

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<v Speaker 2>within a couple of years grew quite tired of the

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<v Speaker 2>fact that he couldn't just post whenever he wanted. He

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<v Speaker 2>combined that then with you know, all kinds of negative

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<v Speaker 2>comments about the SEC. Generally. This action clearly left a

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<v Speaker 2>very bad taste in his mouth, and continued to put

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<v Speaker 2>things on Twitter that you know, were even sort of

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<v Speaker 2>vulgar insults of the SEC. And at some point decided

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<v Speaker 2>he was going to try to get out of the settlement.

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<v Speaker 2>So he had petitioned lower courts to let him out

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<v Speaker 2>of this Twitter babysitter settlement provision, saying that it violated

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<v Speaker 2>his First Amendment rights, there was a prior restraint on

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<v Speaker 2>what he was allowed to say in the public forum.

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<v Speaker 2>The courts that heard it below they were having nothing

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<v Speaker 2>to do with it. It said, look, this is a

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<v Speaker 2>settlement that you entered into. This is in fact a

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<v Speaker 2>restriction that every other executive at TESLA has. They can't

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<v Speaker 2>post anything they want. They have to have it cleared

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<v Speaker 2>with in house counsel. And that's the same thing with

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<v Speaker 2>you right now. So no, you made your bed and

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<v Speaker 2>you're going to sleep in.

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<v Speaker 1>And one of those lower courts was the Second Circuit

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<v Speaker 1>Court of Appeals here in Manhattan. It said that if

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<v Speaker 1>Trump had wanted to preserve his right to tweet without

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<v Speaker 1>any oversight. He could have litigated it or negotiated a

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<v Speaker 1>different agreement.

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<v Speaker 2>Yeah, the second circuit basically treated this like almost any

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<v Speaker 2>other settlement, which is, you know, it is a contract

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<v Speaker 2>that you end up reaching with a governmental regulator or

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<v Speaker 2>a governmental enforcer that says they will call off the

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<v Speaker 2>dog if you agree to various types of measures that

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<v Speaker 2>you are with your eyes wide open, agreeing to do.

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<v Speaker 2>Sometimes these are prophylactic measures to try to keep you

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<v Speaker 2>out of harm's way. Sometimes they're paying regulatory fees. Sometimes

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<v Speaker 2>their behavioral promises, And this one was essentially, you know,

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<v Speaker 2>kind of in many ways, all three of them, but

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<v Speaker 2>the behavioral part of it was, you know, he said, okay,

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<v Speaker 2>I am willing to have you know, sort of an

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<v Speaker 2>overseer approved or a chaperone approve my tweeting activity. There

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<v Speaker 2>didn't seem to be any sense that he was unaware

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<v Speaker 2>of this as a part of the settlement. In fact,

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<v Speaker 2>his lawyers and evidently he is himself had significant input

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<v Speaker 2>in bargaining for it. And so the second circut said, look,

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<v Speaker 2>that's what these sorts of settlement agreements are is that

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<v Speaker 2>you voluntarily agree to give away a particular freedom that

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<v Speaker 2>you might otherwise have in return for having a government

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<v Speaker 2>drop the rest of the charges and not speak the

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<v Speaker 2>sanctions that they might have sought. You got the ladder, right,

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<v Speaker 2>do you agree to the settlement term? And the sec

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<v Speaker 2>kind of closed the case and didn't try to go

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<v Speaker 2>after you for more to try to exclude you from

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<v Speaker 2>being an officer or a director of any public company

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<v Speaker 2>for the next five years. And now one of the

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<v Speaker 2>things that you were giving up, you want to mullig it,

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<v Speaker 2>you want to take it back, And that's just not

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<v Speaker 2>the way these things work. And when you think about it,

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<v Speaker 2>the fact of the matter is that settlements only work

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<v Speaker 2>from both sides perspective of any legal proceeding. If both

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<v Speaker 2>sides say, yeah, what the other side is promising up

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<v Speaker 2>is credible. If at some point one of the sides

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<v Speaker 2>or both of the sides end up being kind of

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<v Speaker 2>like Lucy with the football saying, oh, I promise Charlie Brown,

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<v Speaker 2>I'm not going to pull it away. There's nothing that

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<v Speaker 2>keeps them from doing it, then you kind of almost

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<v Speaker 2>lost the institution of settlement.

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<v Speaker 1>Was it surprising at all that the Supreme Court turned

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<v Speaker 1>this down?

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<v Speaker 2>So this was not you know, my sense it was

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<v Speaker 2>not a particularly hard decision for the Second Circuit to make,

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<v Speaker 2>and my sense is the Supreme Court, notwithstanding if i'd

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<v Speaker 2>they seem to disagree about everything these days, they also

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<v Speaker 2>seemed largely to agree with the way that this matter

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<v Speaker 2>was handled below. Mister Musk had you know, basically made

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<v Speaker 2>his bed, maybe bade his cyber truck bed, and now

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<v Speaker 2>he was going to sleep in it. They don't issue

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<v Speaker 2>opinions usually, and that was not the case here either.

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<v Speaker 2>But it clearly did not command enough attention of fitting

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<v Speaker 2>justice for them to want to get involved in this determination.

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<v Speaker 2>And on some level that actually is probably good for

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<v Speaker 2>settlement generally, right, even for Elon Musk settling things in

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<v Speaker 2>the future. You know, the fact that settlement promises are

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<v Speaker 2>credible matters, and you know, for him to win in

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<v Speaker 2>this case was going to pretty much require him to say,

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<v Speaker 2>there are certain types of speech restrictions that we should

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<v Speaker 2>not even allow anyone to agree to, such as this

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<v Speaker 2>Twitter babysitter at speech restriction. But the problem is this

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<v Speaker 2>is the form of commercial speech. The type of oversight

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<v Speaker 2>was really a procedural type of oversight, and so you know,

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<v Speaker 2>I don't think anyone thought this amount to an especially

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<v Speaker 2>strong case. I guess when you've got a little bit

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<v Speaker 2>extra cash floating around, I guess you could take a

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<v Speaker 2>flyer on something, and that's probably what he did here.

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<v Speaker 1>He certainly has that extra cash floating around. Let's talk

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<v Speaker 1>now about the Twitter sitter. There have been some instances

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<v Speaker 1>where you wonder where the Twitter sitter is. For example,

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<v Speaker 1>in twenty twenty one, he posted a Twitter poll asking

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<v Speaker 1>whether he should sell ten percent of his stock, and

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<v Speaker 1>the SEC sent out subpoenas to him and Tesla. He

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<v Speaker 1>had a Twitter sitter then, supposedly, I mean, does he

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<v Speaker 1>really have a Twitter sitter?

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<v Speaker 2>Well, this has been a big issue that the SEC

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<v Speaker 2>has continued to try to ask him about. One of

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<v Speaker 2>the problems that the SEC can't seem to get him

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<v Speaker 2>show up for his depositions, so they've had a really

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<v Speaker 2>hard time dealing with him. I think he's been borderline

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<v Speaker 2>sort of contemptuous of the SEC, at least in some moments.

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<v Speaker 2>I think he's calmed down a little bit more recently.

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<v Speaker 2>But yeah, so a house lawyer or security lawyer would

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<v Speaker 2>look at that type of a tweet and say, yeah,

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<v Speaker 2>that's a potential problem to be basically sending out cooy

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<v Speaker 2>signals of a significant transaction that would likely be a

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<v Speaker 2>market moving transaction. People are going to rely on that,

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<v Speaker 2>and when they do, that can have an effect of

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<v Speaker 2>manipulating the market or causing people to incorrectly rely on

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<v Speaker 2>something that you didn't actually mean. And so that's the

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<v Speaker 2>type of communication that you know, a reasonable investor out

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<v Speaker 2>there might start relying on this as a statement of

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<v Speaker 2>his intent in a way that's going to materially move

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<v Speaker 2>the market. Those are a lot of the ingredients of

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<v Speaker 2>another Securities brought problem, and so I think it caused

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<v Speaker 2>a lot of people that were casual observers and then

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<v Speaker 2>the not so casual observers at the SEC to say,

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<v Speaker 2>is this Twitter sitter asleep on the job or is

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<v Speaker 2>he basically locked himself in his room and the Twitter

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<v Speaker 2>sitter can't get in and he's just tweeting the way

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<v Speaker 2>And you know, I don't know sure soon, but you know,

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<v Speaker 2>one could safely surmise that that's at least not a

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<v Speaker 2>long shot story that he's been tweeting on the fly

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<v Speaker 2>as well.

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<v Speaker 1>Let's alto talk. He's still involved in the SEC's investigation

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<v Speaker 1>of his acquisition of Twitter now X.

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<v Speaker 2>There are some complaints that sort of came around actually

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<v Speaker 2>from early on processes in his potential acquisition of Twitter

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<v Speaker 2>that then became an acquisition of Twitter. Remember, he was

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<v Speaker 2>tweeting early on in this process about you know, tender

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<v Speaker 2>offers and his other forms of intent. The question of

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<v Speaker 2>when he actually became someone who's interested in taking over

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<v Speaker 2>the company, which would require a different type of federal filings,

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<v Speaker 2>that did he violate federal law in terms of what

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<v Speaker 2>kinds of filings he was supposed to make at any

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<v Speaker 2>given time. These are things that can hang around for

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<v Speaker 2>a long period of time, you know. Ultimately, my sense

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<v Speaker 2>is that those are going to be irritating. But the

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<v Speaker 2>fact of the matter is he did end up closing

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<v Speaker 2>this deal with Twitter. He ended up sort of pulling

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<v Speaker 2>it off on pretty much precise of the terms that

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<v Speaker 2>he was starting to advertise early on. And so my

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<v Speaker 2>sense is there's still there's still some give to play

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<v Speaker 2>out in this in this particular scenario, but that's probably

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<v Speaker 2>not going to be the type of outcome that's going

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<v Speaker 2>to place any seriously material restrictions on him of the

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<v Speaker 2>type of you have to have a Twitter babysitter and

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<v Speaker 2>you know, that's still a real thing. And so my

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<v Speaker 2>sense is that's probably the thing that has really stuck

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<v Speaker 2>in mister Musk's craws. Yeah, maybe in part because I

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<v Speaker 2>think he has long viewed himself, as many others have

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<v Speaker 2>viewed him, as an iconoclast who has kind of gotten

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<v Speaker 2>where he's gotten because he's, you know, sort of defied

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<v Speaker 2>the common wisdom and has been willing to make bold

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<v Speaker 2>positions and bold statements, and so you know, some people

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<v Speaker 2>think that's his secret sauce and pinning a babysitter on

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<v Speaker 2>him for his Twitter post is antithetical to the very

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<v Speaker 2>formula that he created.

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<v Speaker 1>What's the betting line on what Tesla's shareholders will do

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<v Speaker 1>about his fifty six billion dollar payout and the reincorporation

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<v Speaker 1>in Texas.

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<v Speaker 2>Yeah, time is the enemy of all and it may

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<v Speaker 2>end up being the enemy of Elon Musk.

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<v Speaker 3>Here.

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<v Speaker 2>So the company now has basically made a proposal to

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<v Speaker 2>its stockholders for the upcoming shareholder meeting for them to

0:12:22.760 --> 0:12:27.440
<v Speaker 2>vote on two proposals. One is to reincorporate from Delaware

0:12:27.480 --> 0:12:31.679
<v Speaker 2>into Texas, and the second is to have the stockholders

0:12:31.720 --> 0:12:38.199
<v Speaker 2>vote yet again to approve mister Musk's twenty eighteen compensation package,

0:12:38.240 --> 0:12:42.960
<v Speaker 2>which has since been invalidated by the Delaware Chancery Court.

0:12:43.200 --> 0:12:46.080
<v Speaker 2>These are clearly related to one another. He was not

0:12:46.160 --> 0:12:49.080
<v Speaker 2>talking seriously about moving to Texas until he had his

0:12:49.200 --> 0:12:55.040
<v Speaker 2>compensation package invalidated. The question of whether the stockholders actually

0:12:55.080 --> 0:12:58.480
<v Speaker 2>are going to be allowed to do it all over

0:12:58.559 --> 0:13:03.199
<v Speaker 2>again the first process was defective is actually kind of

0:13:03.240 --> 0:13:07.200
<v Speaker 2>an open question in law. Mister Musk and his team

0:13:07.240 --> 0:13:12.360
<v Speaker 2>have taken a relatively aggressive legal position in essentially saying

0:13:12.440 --> 0:13:16.440
<v Speaker 2>that a fairly obscure statute in Delaware allows them to

0:13:16.840 --> 0:13:19.840
<v Speaker 2>have them all again on the stockholder vote, and they're

0:13:19.840 --> 0:13:21.360
<v Speaker 2>going to just do it again, and if they could

0:13:21.360 --> 0:13:23.520
<v Speaker 2>do it again, then that would give him more protection,

0:13:23.720 --> 0:13:25.920
<v Speaker 2>and that the case needs to be reversed on that.

0:13:26.280 --> 0:13:29.720
<v Speaker 2>On that ground, it's a long shot of a claim,

0:13:29.880 --> 0:13:32.240
<v Speaker 2>but that's how they've sort of set it up. The

0:13:32.600 --> 0:13:35.679
<v Speaker 2>reincorporation to Texas maybe a little bit less of a

0:13:35.679 --> 0:13:37.400
<v Speaker 2>long shot of the claim. But you know, most of

0:13:37.400 --> 0:13:41.080
<v Speaker 2>the people who you know, know and practice corporate law

0:13:41.520 --> 0:13:43.600
<v Speaker 2>find it to be a bit of a head scratch

0:13:43.640 --> 0:13:48.439
<v Speaker 2>to have a company of this size migrates to Texas

0:13:48.480 --> 0:13:51.280
<v Speaker 2>out of what is essentially you know, kind of a

0:13:51.320 --> 0:13:55.120
<v Speaker 2>temper tantrum because the fact of the matter is, Delaware

0:13:55.120 --> 0:13:58.960
<v Speaker 2>has long ruled the roost of incorporation, and that's in

0:13:59.080 --> 0:14:02.320
<v Speaker 2>part because the law is so well developed and the

0:14:02.480 --> 0:14:06.440
<v Speaker 2>judges are actually relatively predictable. And one could make an

0:14:06.520 --> 0:14:08.920
<v Speaker 2>argument that you know, most of these cases, you can

0:14:08.960 --> 0:14:11.920
<v Speaker 2>probably quipple with bits and pieces of some of these opinions,

0:14:12.160 --> 0:14:15.080
<v Speaker 2>but that predictability has kind of been playing a role

0:14:15.360 --> 0:14:18.320
<v Speaker 2>here as well. And you know, I think that is

0:14:18.640 --> 0:14:22.800
<v Speaker 2>in some ways kind of the headline story. The backstory

0:14:22.840 --> 0:14:25.640
<v Speaker 2>here on both of these things, I think is that

0:14:26.320 --> 0:14:30.760
<v Speaker 2>you know, these are definitely turbulent waters that Tesla now

0:14:30.840 --> 0:14:33.720
<v Speaker 2>finds itself in. It is not the same as what

0:14:33.920 --> 0:14:37.000
<v Speaker 2>was going on in twenty eighteen when the company was

0:14:37.080 --> 0:14:40.960
<v Speaker 2>just doing gangbusters and growing like crazy. This is clearly

0:14:41.000 --> 0:14:43.760
<v Speaker 2>a point of contraction of the company. You know, the

0:14:43.800 --> 0:14:46.160
<v Speaker 2>problems with the cyber truck that have that have come

0:14:46.200 --> 0:14:48.560
<v Speaker 2>out of made a lot of stockholders feel a little

0:14:48.600 --> 0:14:52.320
<v Speaker 2>bit queasy about Tesla. You know, mister Musk has kind

0:14:52.320 --> 0:14:56.360
<v Speaker 2>of continued with episodically, you know, brilliant and then a

0:14:56.360 --> 0:15:00.200
<v Speaker 2>little bit crazy sounding tweets, and so I do you

0:15:00.440 --> 0:15:04.760
<v Speaker 2>wonder to what extent the current stockholder base at Tesla

0:15:05.320 --> 0:15:08.880
<v Speaker 2>is willing to you know, sort of blindly follow mister Musk,

0:15:09.000 --> 0:15:10.960
<v Speaker 2>or is now going to be more inclined to kick

0:15:11.000 --> 0:15:15.200
<v Speaker 2>the tires. And if it's the latter, then it may

0:15:15.200 --> 0:15:17.560
<v Speaker 2>be a close call as to whether either of these

0:15:17.600 --> 0:15:20.239
<v Speaker 2>things gets over the hump in terms of getting stockholder

0:15:20.240 --> 0:15:21.720
<v Speaker 2>approval at the upcoming meeting.

0:15:22.560 --> 0:15:27.520
<v Speaker 1>And how does the average stockholder react to Elon Musk

0:15:27.640 --> 0:15:31.840
<v Speaker 1>wanting his full pay package when he's laying off more

0:15:31.880 --> 0:15:34.800
<v Speaker 1>than ten percent of the people at Tesla.

0:15:35.480 --> 0:15:38.920
<v Speaker 2>They are in a very tight situation. I mean, he's

0:15:38.960 --> 0:15:43.680
<v Speaker 2>basically letting go entire teams inside Tesla, you know, including

0:15:43.720 --> 0:15:46.600
<v Speaker 2>most recently I guess you know everyone who's running the

0:15:46.720 --> 0:15:50.320
<v Speaker 2>Tesla supercharger network, right, which has been seen as one

0:15:50.320 --> 0:15:54.320
<v Speaker 2>of the key sources of value inside Tesla. But he

0:15:54.440 --> 0:15:57.920
<v Speaker 2>is clearly cinching down the belts of every mid level

0:15:58.000 --> 0:16:02.080
<v Speaker 2>manager inside that company is a way to improve margins,

0:16:02.520 --> 0:16:05.160
<v Speaker 2>and you know, possibly as a way to deliver on

0:16:05.240 --> 0:16:08.720
<v Speaker 2>his representations that you know, electric vehicle prices aren't going

0:16:08.760 --> 0:16:11.840
<v Speaker 2>to plummet. So this is a company that has got

0:16:12.000 --> 0:16:15.040
<v Speaker 2>far less sort of fat to play around with than

0:16:15.040 --> 0:16:17.720
<v Speaker 2>it did, you know, even two years ago. And you know,

0:16:17.800 --> 0:16:19.640
<v Speaker 2>that's kind kind of why one of the things you

0:16:19.720 --> 0:16:22.240
<v Speaker 2>might start to worry a little bit about is, hey,

0:16:22.480 --> 0:16:24.200
<v Speaker 2>you know, we kind of got this gift from this

0:16:24.360 --> 0:16:27.720
<v Speaker 2>Delaware chance Re Court judge. It is really upset mister musk.

0:16:27.880 --> 0:16:31.080
<v Speaker 2>But you know, hey, fifty billion dollars is fifty billion

0:16:31.120 --> 0:16:33.720
<v Speaker 2>dollars that do we want to vote to hand that

0:16:33.800 --> 0:16:36.960
<v Speaker 2>back over to him? Maybe if he can deliver, But

0:16:37.160 --> 0:16:40.080
<v Speaker 2>what's the current track record on his ability to deliver?

0:16:40.200 --> 0:16:42.800
<v Speaker 2>And I think that that is going to be, you know,

0:16:42.920 --> 0:16:46.200
<v Speaker 2>possibly something that makes this this shareholder vote, you know

0:16:46.200 --> 0:16:48.160
<v Speaker 2>a little bit more of a nail binder than I

0:16:48.160 --> 0:16:50.360
<v Speaker 2>think people would have expected even six months ago.

0:16:50.800 --> 0:16:54.680
<v Speaker 1>Always a pleasure, Eric and always illuminating best Professor Eric

0:16:54.720 --> 0:16:58.560
<v Speaker 1>Talley of Columbia Law School, turning out of other legal news.

0:16:58.880 --> 0:17:03.520
<v Speaker 1>Republicans stated attorneys general are piling on to challenge the

0:17:03.560 --> 0:17:08.359
<v Speaker 1>Biden administration's new Title nine rules that expand protections to

0:17:08.560 --> 0:17:12.919
<v Speaker 1>LGBTQ plus students and add new safeguards for victims of

0:17:13.000 --> 0:17:17.280
<v Speaker 1>sexual assault. The number has now grown to fifteen states

0:17:17.320 --> 0:17:20.600
<v Speaker 1>suing over what they say is an illegal rewriting of

0:17:20.640 --> 0:17:25.360
<v Speaker 1>the landmark nineteen seventy two law Title nine forbids discrimination

0:17:25.600 --> 0:17:28.920
<v Speaker 1>based on sex and education. Under the new rules, it

0:17:28.960 --> 0:17:33.840
<v Speaker 1>will also protect against discrimination based on sexual orientation or

0:17:33.960 --> 0:17:37.720
<v Speaker 1>gender identity, and will reverse some trump eraror changes to

0:17:37.800 --> 0:17:41.320
<v Speaker 1>Title nine. Joining me is Rick Rosay, a professor at

0:17:41.359 --> 0:17:44.840
<v Speaker 1>Cuny Law School. What's the general intention of the Biden

0:17:44.840 --> 0:17:49.120
<v Speaker 1>administration in issuing these new Title nine rules.

0:17:49.880 --> 0:17:56.680
<v Speaker 3>The administration is attempting to meet many of the schools

0:17:57.080 --> 0:18:00.520
<v Speaker 3>f way in terms of the issues that they have raised,

0:18:01.119 --> 0:18:06.640
<v Speaker 3>but also to include among the protected categories new areas

0:18:06.680 --> 0:18:10.800
<v Speaker 3>that have not been covered in the past. So, for instance,

0:18:11.000 --> 0:18:15.480
<v Speaker 3>and this of course is already controversial, the new rules

0:18:15.720 --> 0:18:21.960
<v Speaker 3>are going to include as sex discrimination, suture orientation, and

0:18:22.119 --> 0:18:27.040
<v Speaker 3>gender identity. And in addition to that, it clarifies that

0:18:27.160 --> 0:18:31.960
<v Speaker 3>pregnancy related protections and the inclusion of lactation issues are

0:18:32.040 --> 0:18:35.600
<v Speaker 3>also now protected through Title nine. So certainly that would

0:18:35.800 --> 0:18:39.959
<v Speaker 3>greatly impact in the post secondary schools, but even in

0:18:40.000 --> 0:18:43.280
<v Speaker 3>some of the high schools. The other area that I

0:18:43.359 --> 0:18:48.280
<v Speaker 3>think is very interesting is the area of decision making

0:18:48.480 --> 0:18:52.160
<v Speaker 3>and investigation that in the past there was a lot

0:18:52.200 --> 0:18:56.560
<v Speaker 3>of controversy around the lack of due process in the

0:18:56.600 --> 0:19:02.040
<v Speaker 3>twenty twenty the Trump administration made the hearing very much

0:19:02.119 --> 0:19:06.359
<v Speaker 3>almost like criminal court, but certainly very different from the

0:19:06.440 --> 0:19:10.920
<v Speaker 3>Obama regulations. But now there's a lot of flexibility.

0:19:11.760 --> 0:19:14.359
<v Speaker 1>What seems to be one of the most controversial parts

0:19:14.359 --> 0:19:18.399
<v Speaker 1>of this is the new recognition that Title nine protects

0:19:18.680 --> 0:19:23.800
<v Speaker 1>LGBTQ students. Explain that how it's expanding, Well.

0:19:23.520 --> 0:19:27.399
<v Speaker 3>First of all, as you know, Title nine prohibits discrimination

0:19:27.840 --> 0:19:32.679
<v Speaker 3>because of person's sex, So sex is now expanded to

0:19:32.760 --> 0:19:39.240
<v Speaker 3>include a person's gender identity, and you know, sex based stereotypes.

0:19:39.760 --> 0:19:44.800
<v Speaker 3>But certainly LGBTQ, and so a trans student can raise

0:19:44.920 --> 0:19:48.200
<v Speaker 3>that they are being treated differently because maybe their pronouns

0:19:48.200 --> 0:19:50.919
<v Speaker 3>are not being used that might be a cause of

0:19:51.000 --> 0:19:54.719
<v Speaker 3>action under this, or that they're being denied access to

0:19:55.640 --> 0:20:01.600
<v Speaker 3>their preferred bathroom. So that is greatly expanded now. Certainly

0:20:01.800 --> 0:20:04.639
<v Speaker 3>some of these federal courts have already expanded that and

0:20:04.680 --> 0:20:08.640
<v Speaker 3>through some litigation holding a violation of the Constitution when

0:20:08.720 --> 0:20:11.120
<v Speaker 3>public institutions denied those rights.

0:20:11.160 --> 0:20:14.199
<v Speaker 1>Many Republican control states in the last few years have

0:20:14.280 --> 0:20:20.199
<v Speaker 1>adopted laws restricting the rights of transgender children, including banning

0:20:20.240 --> 0:20:24.080
<v Speaker 1>gender affirming medical care for minors and ban them from

0:20:24.240 --> 0:20:28.959
<v Speaker 1>using facilities that align with their gender identity. So right now,

0:20:29.359 --> 0:20:32.720
<v Speaker 1>with this update to the rules, schools can no longer

0:20:32.720 --> 0:20:36.920
<v Speaker 1>prohibit transgender students from going into the bathroom that aligns

0:20:36.920 --> 0:20:38.320
<v Speaker 1>with their gender identity.

0:20:39.080 --> 0:20:43.040
<v Speaker 3>Yes, I believe that's the intent of the Department of

0:20:43.160 --> 0:20:46.600
<v Speaker 3>Educations or for the Civil Rights and these regulations.

0:20:46.840 --> 0:20:51.080
<v Speaker 1>The Supreme Court declined to consider whether transgender students have

0:20:51.359 --> 0:20:54.320
<v Speaker 1>a legal right to use school bathrooms that match their

0:20:54.359 --> 0:20:59.720
<v Speaker 1>gender identity. Does that have any implications for these new rules?

0:21:00.440 --> 0:21:03.080
<v Speaker 3>Not really. I mean, the Supreme Court might decide to

0:21:03.080 --> 0:21:06.160
<v Speaker 3>take another case in the future. But there are certainly

0:21:06.280 --> 0:21:09.679
<v Speaker 3>lower courts of appeals which have upheld the rights of

0:21:10.119 --> 0:21:13.720
<v Speaker 3>transgender students to use the bathrooms. There are certainly a

0:21:13.720 --> 0:21:16.639
<v Speaker 3>lot of lower courts, the federal district courts that have

0:21:16.760 --> 0:21:20.960
<v Speaker 3>gone the other way upholding the school denial. So this

0:21:21.000 --> 0:21:24.359
<v Speaker 3>is an issue that will be contentious and will be

0:21:24.720 --> 0:21:27.880
<v Speaker 3>probably before the Supreme Court sometime in the future.

0:21:28.960 --> 0:21:33.000
<v Speaker 1>The administration had originally intended to include a policy forbidding

0:21:33.040 --> 0:21:38.520
<v Speaker 1>schools from enacting outright bans on transgender athletes, but that

0:21:38.600 --> 0:21:41.560
<v Speaker 1>provision was put on hold. Do you think it's on

0:21:41.720 --> 0:21:44.720
<v Speaker 1>hold for political reasons? With the election coming up and

0:21:45.440 --> 0:21:51.720
<v Speaker 1>Republicans rallying around bans on transgender athletes in girls' sports.

0:21:53.200 --> 0:21:56.120
<v Speaker 3>I certainly don't know for sure, but I would think

0:21:56.160 --> 0:21:58.960
<v Speaker 3>that it's not for political reasons. I think they probably

0:21:59.040 --> 0:22:02.679
<v Speaker 3>made it determination that they were not certain that they

0:22:02.720 --> 0:22:07.000
<v Speaker 3>would be able to prevail under the law, But I

0:22:07.119 --> 0:22:10.119
<v Speaker 3>have no reason to say that's even the reason that

0:22:10.160 --> 0:22:12.280
<v Speaker 3>they did not include it At this point.

0:22:12.920 --> 0:22:16.239
<v Speaker 1>The Department of Education said in a statement that it

0:22:16.320 --> 0:22:19.320
<v Speaker 1>was applying the reasoning of the Supreme Court's ruling in

0:22:19.359 --> 0:22:23.240
<v Speaker 1>the Bostock case, which found that Title seven bars workplace

0:22:23.320 --> 0:22:27.600
<v Speaker 1>discrimination based on sexual orientation. Do you think that the

0:22:27.640 --> 0:22:32.520
<v Speaker 1>Department of Education is on solid ground because this expands

0:22:32.560 --> 0:22:35.560
<v Speaker 1>it from workplace to the schools.

0:22:36.680 --> 0:22:40.960
<v Speaker 3>Yes, absolutely. I mean, that was a closely decided case,

0:22:41.720 --> 0:22:45.119
<v Speaker 3>and of course Judge Gorsuch was a member of the

0:22:45.200 --> 0:22:48.440
<v Speaker 3>majority of that case, and that's really important going forward.

0:22:48.760 --> 0:22:51.359
<v Speaker 3>But I think, first of all, Title six was part

0:22:51.480 --> 0:22:54.280
<v Speaker 3>of the nineteen sixty four Civil Rights Act, which also

0:22:54.400 --> 0:22:59.160
<v Speaker 3>included Title seven, and I think that Bostic decision has

0:22:59.200 --> 0:23:03.120
<v Speaker 3>been utilized in a number of different areas now and

0:23:03.400 --> 0:23:07.840
<v Speaker 3>has a firm foundation in the war and analysis of

0:23:07.920 --> 0:23:11.879
<v Speaker 3>that law to allow these Department of Education included in

0:23:12.040 --> 0:23:16.760
<v Speaker 3>Title nine because a lot of the sexual harassment principles

0:23:17.000 --> 0:23:19.320
<v Speaker 3>came out of Title seven originally.

0:23:20.080 --> 0:23:23.119
<v Speaker 1>You mentioned this. Part of this rule is reversing Trump

0:23:23.240 --> 0:23:27.560
<v Speaker 1>era changes to Title nine that required schools to host

0:23:27.840 --> 0:23:32.919
<v Speaker 1>live hearings and allowed those accused of sexual misconduct to

0:23:32.960 --> 0:23:37.200
<v Speaker 1>cross examine students in this live hearing. So how does

0:23:37.240 --> 0:23:37.959
<v Speaker 1>it change that?

0:23:38.480 --> 0:23:41.919
<v Speaker 3>Okay, so this is very interesting because it does change it,

0:23:42.040 --> 0:23:46.080
<v Speaker 3>but it still allows some of the Trump era provisions

0:23:46.080 --> 0:23:49.080
<v Speaker 3>to go into effect. So it gives much more flexibility

0:23:49.240 --> 0:23:53.439
<v Speaker 3>to the schools, particularly the larger schools, to choose how

0:23:53.480 --> 0:23:56.600
<v Speaker 3>they're going to do it. So, if a live hearing

0:23:56.840 --> 0:24:01.920
<v Speaker 3>is being held and the school allows for fuss examination

0:24:02.280 --> 0:24:07.920
<v Speaker 3>in other reevans procedures within the universities, they can allow

0:24:08.320 --> 0:24:12.119
<v Speaker 3>full force examines as it might be in a civil

0:24:12.280 --> 0:24:16.240
<v Speaker 3>or criminal trial. On the other hand, it doesn't require

0:24:16.280 --> 0:24:20.639
<v Speaker 3>it as the Trump administration of Regulations required. It allows

0:24:20.680 --> 0:24:24.760
<v Speaker 3>schools to be flexible and to determine their own process.

0:24:25.400 --> 0:24:29.520
<v Speaker 1>Coming up next, an expansion of the definition of sexual harassment.

0:24:29.920 --> 0:24:34.960
<v Speaker 1>You're listening to Bloomberg. Republican states are piling on to

0:24:35.119 --> 0:24:39.840
<v Speaker 1>challenge the Biden administration's new Title nine rules, which expand

0:24:39.920 --> 0:24:44.760
<v Speaker 1>protections to LGBTQ plus students and add new safeguards for

0:24:44.880 --> 0:24:48.480
<v Speaker 1>victims of sexual assault. I've been talking to Professor Rick

0:24:48.560 --> 0:24:52.440
<v Speaker 1>Rosaying of the Qunity School of Law. Rick before the break,

0:24:52.480 --> 0:24:57.320
<v Speaker 1>we were talking about the policy changes over house schools

0:24:57.320 --> 0:25:01.920
<v Speaker 1>and colleges handle complaints of sexual assault. The hearings they

0:25:01.920 --> 0:25:03.760
<v Speaker 1>have allow schools.

0:25:03.320 --> 0:25:07.119
<v Speaker 3>To be flexible and to determine their own process. So

0:25:07.240 --> 0:25:12.840
<v Speaker 3>it allows schools to hold a hearing where the decision

0:25:12.920 --> 0:25:16.720
<v Speaker 3>maker or the hearing officer will do the questioning, and

0:25:16.960 --> 0:25:20.040
<v Speaker 3>question would have to be put to the hearing officer,

0:25:20.080 --> 0:25:23.000
<v Speaker 3>and the hearing officer would decide whether to put that

0:25:23.160 --> 0:25:26.679
<v Speaker 3>to the complainant, to the person who complained that the

0:25:26.720 --> 0:25:30.840
<v Speaker 3>sex discrimination of sexual rations of sexual assault, and so

0:25:31.000 --> 0:25:34.479
<v Speaker 3>it would be in a way a barrier direct cross

0:25:34.480 --> 0:25:39.280
<v Speaker 3>examination where the accused or the accused lawyer under the

0:25:39.320 --> 0:25:45.000
<v Speaker 3>Trumpet guidelines would be able to directly question the complainant. Now,

0:25:45.080 --> 0:25:48.840
<v Speaker 3>that could still occur if the university has such a proceeding,

0:25:49.160 --> 0:25:52.480
<v Speaker 3>but it will allow universities to have a hybrid. It

0:25:52.480 --> 0:25:58.159
<v Speaker 3>will also allow universities to allow the investigator to also

0:25:58.200 --> 0:26:02.680
<v Speaker 3>be the decision maker and allow the investigator splash decision

0:26:02.760 --> 0:26:06.800
<v Speaker 3>maker to actually do the coross examination herself.

0:26:07.359 --> 0:26:11.680
<v Speaker 1>There is also a wider definition of sexual harassment.

0:26:11.440 --> 0:26:14.119
<v Speaker 3>And most of that comes from Title seven. A sexual

0:26:14.119 --> 0:26:18.240
<v Speaker 3>harassment is going to include clearly what we call quid

0:26:18.320 --> 0:26:23.440
<v Speaker 3>pro quo harassment, which is someone with power over either

0:26:23.480 --> 0:26:27.080
<v Speaker 3>an employee or a student who requires some type of

0:26:27.080 --> 0:26:30.399
<v Speaker 3>sexual favors. It could be if you don't sleep with me,

0:26:31.000 --> 0:26:32.600
<v Speaker 3>you're not going to get an a in the course,

0:26:32.720 --> 0:26:35.200
<v Speaker 3>or you're not going to get the promotion as an employee.

0:26:35.480 --> 0:26:39.240
<v Speaker 3>That clearly is going to be unlawful under these set

0:26:39.280 --> 0:26:43.000
<v Speaker 3>of regulations. And then, of course the hostile work environment,

0:26:43.119 --> 0:26:46.520
<v Speaker 3>which is conduct which is of a sexual nature, but

0:26:46.680 --> 0:26:49.800
<v Speaker 3>it may not be actually requiring sex, but it can

0:26:49.840 --> 0:26:52.200
<v Speaker 3>be demeaning and unwanted.

0:26:53.080 --> 0:26:55.560
<v Speaker 1>I know you want to give some more detail about

0:26:56.080 --> 0:26:58.360
<v Speaker 1>the rules affecting pregnancy.

0:26:59.080 --> 0:27:01.720
<v Speaker 3>I want to make it very clear that under Title

0:27:01.840 --> 0:27:06.920
<v Speaker 3>nine now it makes it unlawful sex discrimination to discriminate

0:27:07.040 --> 0:27:12.040
<v Speaker 3>against somebody based on pregnancy and related medical condition, and

0:27:12.119 --> 0:27:15.320
<v Speaker 3>that includes determination of a pregnancy. So that's going to

0:27:15.320 --> 0:27:19.199
<v Speaker 3>be very controversial. That means abortion, and as you know,

0:27:20.000 --> 0:27:23.359
<v Speaker 3>many states have outlawed abortion now and this is also

0:27:23.600 --> 0:27:26.679
<v Speaker 3>true with respect that there are two new laws in

0:27:26.720 --> 0:27:31.200
<v Speaker 3>the last year and a half, the Pregnancy Workers Fairness

0:27:31.240 --> 0:27:34.520
<v Speaker 3>Act and the so called pumpback. About a year ago,

0:27:34.680 --> 0:27:39.840
<v Speaker 3>the Pregnancy Worker's Fairness Act was enacted and it requires

0:27:40.040 --> 0:27:45.200
<v Speaker 3>players to make reasonable accommodations to people who are pregnant

0:27:45.520 --> 0:27:48.879
<v Speaker 3>if they can't form the job, but they could be

0:27:48.920 --> 0:27:52.280
<v Speaker 3>given some type of an accommodation that would be required.

0:27:52.400 --> 0:27:54.960
<v Speaker 3>So that was one law. And then there was an

0:27:55.040 --> 0:27:58.720
<v Speaker 3>older law which goes back to the Obama era, which

0:27:58.760 --> 0:28:03.159
<v Speaker 3>had to do with require ring employers to provide clean

0:28:03.320 --> 0:28:07.720
<v Speaker 3>spaces and spaces with electricity for people to be able

0:28:07.760 --> 0:28:11.960
<v Speaker 3>to lactate at the workplace so they can be able

0:28:12.000 --> 0:28:15.480
<v Speaker 3>to continue breastfeeding. And that now is going to be

0:28:15.520 --> 0:28:18.640
<v Speaker 3>included in the Title nine regulation. So all of this

0:28:18.680 --> 0:28:21.520
<v Speaker 3>is coming together both in the workplace and in the

0:28:21.600 --> 0:28:24.160
<v Speaker 3>school place, and of course the school place is also

0:28:24.240 --> 0:28:27.280
<v Speaker 3>a workplace for certain employees.

0:28:27.359 --> 0:28:31.000
<v Speaker 1>At this point, they are about fifteen Republican led states

0:28:31.119 --> 0:28:35.480
<v Speaker 1>challenging these new Title nine rules in several different lawsuits.

0:28:35.760 --> 0:28:38.520
<v Speaker 1>What can you tell us about the basic complaints in

0:28:38.560 --> 0:28:39.720
<v Speaker 1>those lawsuits?

0:28:40.280 --> 0:28:43.200
<v Speaker 3>They're going after a number of the provisions, but primarily

0:28:43.280 --> 0:28:47.800
<v Speaker 3>they're going after the expansion into the gender identity the

0:28:48.200 --> 0:28:53.440
<v Speaker 3>LGBTQ area. That's their primary concern. I think they're also

0:28:53.520 --> 0:28:58.960
<v Speaker 3>trying to bring back a full cross examination requirement, but

0:28:59.120 --> 0:29:02.840
<v Speaker 3>I think they're focused is on the lgbt two area now,

0:29:02.960 --> 0:29:06.280
<v Speaker 3>just mentioning that to bring this up to date. In

0:29:06.400 --> 0:29:11.080
<v Speaker 3>terms of the Pregnancy Work of Fairness Act, those regulations

0:29:11.160 --> 0:29:14.600
<v Speaker 3>were just denounced and there are I think nineteen Attorney

0:29:14.720 --> 0:29:19.320
<v Speaker 3>generals who were challenging that also well. The complaint with

0:29:19.360 --> 0:29:22.880
<v Speaker 3>respect to the Pregnancy Workers Fairness to Act relates to

0:29:23.160 --> 0:29:26.920
<v Speaker 3>the United States Equal Law Deployment Opportunity and Commission. They're

0:29:26.920 --> 0:29:29.520
<v Speaker 3>saying they do not have the authority and the jurisdiction

0:29:29.960 --> 0:29:33.160
<v Speaker 3>to expand into that area. The Pregnancy Work of fair

0:29:33.520 --> 0:29:37.600
<v Speaker 3>Act is also involving the US Department of Labor.

0:29:38.120 --> 0:29:41.160
<v Speaker 1>The state superintendents from two of the states that sued,

0:29:41.280 --> 0:29:45.560
<v Speaker 1>Florida and South Carolina, joined other state leaders last week

0:29:45.800 --> 0:29:49.760
<v Speaker 1>in directing their local school districts to disregard the new

0:29:49.800 --> 0:29:54.480
<v Speaker 1>Title nine rule. In response, the Education Department said that

0:29:54.600 --> 0:29:58.320
<v Speaker 1>they have to comply with the final regulations in order

0:29:58.360 --> 0:30:01.160
<v Speaker 1>to receive federal funds. Who wins in this. I mean,

0:30:01.200 --> 0:30:04.560
<v Speaker 1>if there are lawsuits, is a judge likely to put

0:30:04.600 --> 0:30:07.960
<v Speaker 1>the rules on hold, you know, issue a preliminary injunction.

0:30:08.600 --> 0:30:11.880
<v Speaker 3>Well, they're two different avenues. One is that the attorney

0:30:11.920 --> 0:30:15.120
<v Speaker 3>generals have gone into federal court and so a federal

0:30:15.200 --> 0:30:18.800
<v Speaker 3>judge will make a determination. The other process where the

0:30:18.840 --> 0:30:22.680
<v Speaker 3>Department of Education has fled to those schools your in

0:30:22.800 --> 0:30:27.080
<v Speaker 3>violation a Title nine. That's first an administrative process. Will

0:30:27.160 --> 0:30:30.880
<v Speaker 3>They'll make an administrative determination that your in violation of

0:30:30.960 --> 0:30:34.560
<v Speaker 3>these rules. We're going to withhold the fund, and then

0:30:34.960 --> 0:30:38.920
<v Speaker 3>that will be challenged in federal court. So eventually a

0:30:38.960 --> 0:30:42.280
<v Speaker 3>federal judge and then the courts of appeals and possibly

0:30:42.360 --> 0:30:44.600
<v Speaker 3>the Supreme Court will make a final determination.

0:30:45.040 --> 0:30:46.760
<v Speaker 1>Is it going to be a long time before these

0:30:46.840 --> 0:30:49.200
<v Speaker 1>rules are solidly in place?

0:30:49.960 --> 0:30:52.960
<v Speaker 3>Let's put it this way. A lot of universities have

0:30:53.040 --> 0:30:56.400
<v Speaker 3>already announced and have apployed these by the administration for

0:30:56.520 --> 0:30:59.840
<v Speaker 3>these new rules, for giving them more flexibility, but also

0:31:00.560 --> 0:31:04.800
<v Speaker 3>for focusing on equity for all of their students, because

0:31:04.840 --> 0:31:07.840
<v Speaker 3>many of the universities recognize that this is a very

0:31:07.880 --> 0:31:11.880
<v Speaker 3>positive change. So there's going to be depending on the

0:31:12.080 --> 0:31:15.800
<v Speaker 3>geographic location, the state maybe even the city or town.

0:31:16.000 --> 0:31:18.960
<v Speaker 3>It's going to be very different. And so yes, we're

0:31:18.960 --> 0:31:22.440
<v Speaker 3>going to go through a period of challenge and decision

0:31:22.480 --> 0:31:23.400
<v Speaker 3>making by the court.

0:31:23.800 --> 0:31:27.880
<v Speaker 1>So I mean this reflects this sort of political back

0:31:27.920 --> 0:31:34.800
<v Speaker 1>and forth as presidential administrations repeatedly rewrite the rules around

0:31:34.920 --> 0:31:38.880
<v Speaker 1>you know, campus sexual misconduct, where Obama had some rules,

0:31:38.920 --> 0:31:41.680
<v Speaker 1>then Trump came in and changed the rules, and now

0:31:41.720 --> 0:31:45.160
<v Speaker 1>Biden came in and changed the rules. I mean, it

0:31:45.240 --> 0:31:49.200
<v Speaker 1>must be frustrating to schools and you know, to students

0:31:49.200 --> 0:31:51.800
<v Speaker 1>to have this continual back and forth.

0:31:53.000 --> 0:31:55.880
<v Speaker 3>Yes, it is very frustrating. This is part of our

0:31:56.280 --> 0:32:01.920
<v Speaker 3>federal state system. However, I'm optimistic because I think at

0:32:01.920 --> 0:32:07.600
<v Speaker 3>some point, as our population ages out, if you look

0:32:07.640 --> 0:32:13.200
<v Speaker 3>at the pole, younger people are much more supportive of

0:32:13.320 --> 0:32:21.600
<v Speaker 3>the LGBTQ community, even among evangelical communities, and so I

0:32:21.640 --> 0:32:27.040
<v Speaker 3>think culturally, eventually the people will say, hey, enough of this,

0:32:27.280 --> 0:32:31.280
<v Speaker 3>and we want equity for all people and people should

0:32:31.280 --> 0:32:34.280
<v Speaker 3>be treated with respect and kindness.

0:32:34.560 --> 0:32:37.320
<v Speaker 1>Well, that would be lovely. Who can disagree with that?

0:32:38.480 --> 0:32:41.200
<v Speaker 1>Going back to the hearings for a moment, what's the

0:32:41.240 --> 0:32:42.600
<v Speaker 1>standard in these cases?

0:32:43.200 --> 0:32:45.479
<v Speaker 3>Well, I mean this is maybe getting a little bit

0:32:45.680 --> 0:32:50.280
<v Speaker 3>down into the weeds. But interestingly, there's going to be

0:32:50.520 --> 0:32:56.520
<v Speaker 3>some differences with respect to the standard for determining whether

0:32:56.640 --> 0:33:02.280
<v Speaker 3>somebody has in violation of title, whether somebody has committed

0:33:02.320 --> 0:33:07.560
<v Speaker 3>an act of sex discrimination or sexual harassment, because these

0:33:07.680 --> 0:33:12.560
<v Speaker 3>regulations will allow two different standards, with those schools and

0:33:12.640 --> 0:33:17.560
<v Speaker 3>particular universities that may apply what's called a clear and

0:33:17.640 --> 0:33:22.000
<v Speaker 3>consensing evidence standard, which is somewhere between what we call

0:33:22.040 --> 0:33:25.480
<v Speaker 3>a preponderance of evidence and of course the criminal standard,

0:33:25.480 --> 0:33:29.280
<v Speaker 3>which is beyond a reasonable doubt. But it's a higher

0:33:29.320 --> 0:33:34.440
<v Speaker 3>standard than the usual civil standard, which is the preponderance

0:33:34.520 --> 0:33:39.280
<v Speaker 3>of evidence. And what that means is it's just slightly

0:33:39.320 --> 0:33:41.840
<v Speaker 3>more than fifty percent, or if you think about the

0:33:42.000 --> 0:33:44.600
<v Speaker 3>scales of justice, all you need to do is tip

0:33:44.640 --> 0:33:47.800
<v Speaker 3>it slightly in the direction of one party and then

0:33:47.880 --> 0:33:51.960
<v Speaker 3>you have a decision. These new regulations allow for the

0:33:52.080 --> 0:33:56.280
<v Speaker 3>universities and the schools to make the decision which standard

0:33:56.280 --> 0:33:58.800
<v Speaker 3>they will apply, and so they're going to be different

0:33:58.880 --> 0:34:03.880
<v Speaker 3>standards in different universities and different states, and that's somewhat unusual.

0:34:04.240 --> 0:34:04.880
<v Speaker 3>It really is.

0:34:05.600 --> 0:34:09.239
<v Speaker 1>Thanks so much. Rick. That's Professor Rick Rossaine of the

0:34:09.320 --> 0:34:12.479
<v Speaker 1>QUNI School of Law. These new rules won't go into

0:34:12.520 --> 0:34:16.560
<v Speaker 1>effect until August and they were proposed nearly two years ago.

0:34:16.920 --> 0:34:20.080
<v Speaker 1>With the public comment period that drew two hundred and

0:34:20.080 --> 0:34:23.840
<v Speaker 1>forty thousand responses. That's a record for the Department of Education.

0:34:24.360 --> 0:34:26.720
<v Speaker 1>And that's it for this edition of The Bloomberg Law Show.

0:34:27.040 --> 0:34:29.360
<v Speaker 1>Remember you can always get the latest legal news on

0:34:29.440 --> 0:34:33.719
<v Speaker 1>our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

0:34:33.880 --> 0:34:38.919
<v Speaker 1>and at www dot bloomberg dot com, slash podcast Slash Law,

0:34:39.320 --> 0:34:41.920
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:34:41.960 --> 0:34:45.880
<v Speaker 1>weeknight at ten pm Wall Street Time. I'm June Grosso

0:34:46.000 --> 0:34:47.600
<v Speaker 1>and you're listening to Bloomberg