Betsy DeVos and Title IX

[Canarr]

So... Education Secretary DeVos announced plans to work on her department's current guidelines for US colleges concerning the handling of sexual assault cases. And she's catching a lot of crap for it.

But from what I've read, this isn't one of those cases where Trump is trying to completely repeal of abandon something Obama did previously. This is a case of a public official announcing her opinion that a policy from her department is flawed, and her intent of collecting public input on how to improve it. To me, this seems like something she is supposed to be doing, is it not?

Honestly speaking, I still have problems wrapping my head around the idea that colleges are supposed to be deciding about criminal accusations at all. How is that a good idea? You have university faculty and staff, people trained for education and/or administration, and now they're supposed to decide whether or not a criminal complaint has merit? Something that is actually the job of law enforcement?

I mean, nobody has so far suggested to have a college tribunal decide cases where student steal from each other, have they? Or commit fraud, or battery, or manslaughter, or any other criminal offense against each other. But for sexual assault, that is supposed to make sense?

In my mind, any changes made to this stupid system can only be for the better.

[s_stabeler]

It's somewhat complicated- and I agree that the system is somewhat flawed- but they aren't ruling on the criminal case as such (or shouldn't be)- most-if not all- colleges have rules specifically prohibiting sexual activity without consent. THAT is what the college tribunal is ruling on.

Or, to put it simply: the tribunal is ruling on if the accused should be kicked out of college. A criminal case would rule on if the suspect should be convicted.

That, incidentally, is why being found not guilty in a criminal case doesn't automatically allow a reversal of being expelled from college- it's the same reason why being found not guilty in a criminal case doesn't mean you can't receive a judgement against you in a civil one. (I DO think it should be grounds to ask the college to re-examine the case- under the theory that they might reach a different decision in light of any new information available thanks to the court case- but it's not automatic)

[TheHuckster]

This is an issue that extends well beyond Title IX. The same controversy to an extent is being held in the Ezekiel Elliot suspension in the NFL on personal conduct grounds due to the alleged domestic violence crime which he was never even put on trial for.

My concern about this stuff is it constitutes a sort of "mob rule" where someone merely has to be accused of a crime, and it automatically violates some sort of policy which can lead to job loss, eviction, expulsion, or any other circumstances. That just isn't a good policy to have, and is grounds to all sorts of misuse which can really affect innocent people's lives. Colleges, employers, and all these other institutions simply don't have the qualifications or even resources to be the prosecutor, judge, and jury over these kinds of investigations, and I think it's best to have a system where you rely on the actual justice system that is qualified to do their job and actually determine if someone is, in fact, in violation of a law.

In every jurisdiction domestic violence, rape, and other forms of violent crime are ubiquitously illegal. It just doesn't make sense to me that we have a world where someone can be deemed not guilty of these crimes as a result of a thorough investigation and/or trial that squeezed out the gaps as much as possible, while some other institution's mickey mouse investigation deemed that person "guilty" and ruined their life as a result.

Now, granted, the justice system has some flaws. That doesn't mean a different entity magically has the answers.

[Canarr]

It's somewhat complicated- and I agree that the system is somewhat flawed- but they aren't ruling on the criminal case as such (or shouldn't be)- most-if not all- colleges have rules specifically prohibiting sexual activity without consent. THAT is what the college tribunal is ruling on.

Or, to put it simply: the tribunal is ruling on if the accused should be kicked out of college. A criminal case would rule on if the suspect should be convicted.

Granted, my comparison wasn't entirely correct; of course students judged by college tribunals aren't imprisoned, nor do they receive any other kind of criminal sanctions - unless you count the fact that colleges may limit their access to campus during the evaluation of the charges, and after. Accused students have lost access to campus housing, to college courses, to jobs they had.

And on the other hand, the fact that colleges are sanctioning their students for non-criminal behavior is even worse. If a case brought before a college under Title IX does not meet the legal criteria for sexual asssault, then how is it the college's business to impose sanctions that the legal system would not impose? Wasn't the whole point of the "Dear Colleague" letter to improve the treatment of victims of sexual assault by colleges? So how did that get extended to cases where there wasn't any sexual assault at all?

This whole thing makes no sense at all. Here's to hoping that DeVos gets it changed quickly.

[s_stabeler]

because, as I said, the accused isn't- at the tribunal- facing allegations of criminal sexual assault- partly because the college can't exercise judicial power over criminal cases.

Basically, the college has a rule saying, functionally, "X is banned. If you do X, then you are subject to Y penalty." -In this case, X is sexual assault by the college's definition (they should, of course, specify what they consider sexual assault)

Or, to put it another way, it's the equivalent of an employer firing you. If you're fired by your employer over criminal allegations, you don't have a right to get your job back- because the court wasn't ruling on the company's rules. (whereas taking your employer to court for unfair dismissal can result in getting your job back, because the court is basically ruling on the company rule.)

oh, and as for colleges ruling on if students have stolen from each other, yup, teachers do- if you claim another kid has taken your pencil, and the teacher believes you, then the teacher is ruling on if the other student has technically committed the crime of theft. Granted that it would take an exceptionally petty prosecutor, but it is strictly speaking an offence under the criminal law.

And as for colleges sanctioning you for non-criminal behaviour, tell a member of staff to go f**k themselves (not illegal) and I guarantee you will get a detention (or some college-level equivalent- I've never actually got into disciplinary trouble at university and have never actually looked up what punishments they have available.) and if you try to claim your actions were not illegal, you'll probably get another one. (limiting accused student's access to campus is usually a protective measure, not punitive- it sucks for the accused, but it's not actually a punishment.

oh, and I can also guarantee that universities WILL intervene if you assault another student on university property.

[Canarr]

oh, and I can also guarantee that universities WILL intervene if you assault another student on university property.

They'll probably intervene, yes. But if the assault is serious - resulting in injuries or similar - then I'd guarantee that the college will involve the police, instead of putting together a tribunal to decide whether or not the accusations have merit.

With regards to the comparison to workplace termination and civil suits: not entirely applicable, since in both cases, the decision against you must follow local laws, allow for legal representation, and can be appealed. With these college tribunals, none of that applies - the accused aren't allowed to be legally represented, aren't allowed to question their accuser, and whether or not their behavior was lawful doesn't seem to matter.

[AmbrosiaWriter]

With these college tribunals, none of that applies - the accused aren't allowed to be legally represented, aren't allowed to question their accuser, and whether or not their behavior was lawful doesn't seem to matter.

That's because it doesn't matter if it is "lawful" or not, it matters if it broke college rules / policy.

Let's say;

-You are over 21 in the USA (legally able to purchase and drink alcohol.)
-You are in a dry dorm.
-You bring in alcohol to your dorm and drink it there and get caught.

You broke the rules the college put down for the dorm, and while your actions were LEGAL, it will still probably lead to either a warning or being banned from staying in those college's dorms (depending on how draconian the college is / how many times you did it.)

Also, colleges CAN involve the police and have them begin investigation while at the same time consider pulling together a tribunal to look at the situation to see if the student broke any college policies at the same time.

They aren't conducting a criminal case, they aren't laying down a verdict criminal accusations. They are seeing if you broke the rules you agreed to abide by while going to that college.

It's the same thing as if you broke a rule in the employee handbook, and while you didn't do anything illegal in the criminal sense, you did something "illegal" in the environment of your employer. You don't have a right to an attorney for a meeting with your boss to discuss what you did / if you broke the employer's rules.

[s_stabeler]

as AmbrosiaWriter said- the college may pull in the police for an assault- that's because you may well face criminal charges. However, just like a criminal court can't impose expulsion, the college doesn't rule on the criminal charges- it rules on the allegation you broke college rules.

[TheHuckster]

as AmbrosiaWriter said- the college may pull in the police for an assault- that's because you may well face criminal charges. However, just like a criminal court can't impose expulsion, the college doesn't rule on the criminal charges- it rules on the allegation you broke college rules.

But, again. Let's say the police do their investigation, and due to lack of evidence (or even evidence that directly contradicts testimony, such as a validated alibi)... it's a bogus rule that the college still says that student broke rules. What did the student even do to get expelled? Merely had another student make a false accusation? If that's the reason for expulsion, that's a horrible rule.

[s_stabeler]

I have already addressed this point. Colleges don't need to prove beyond a reasonable doubt that the student broke the rule. Generally, the alibi would have come up when the college was investigating- and you can usually appeal an expulsion if you weren't provided an opportunity to defend yourself. It still has nothing to do with the court case.

If you're fired by your employer, then proving you didn't do what you were fired for won't get you your job back- this is the same thing.

[TheHuckster]

I have already addressed this point. Colleges don't need to prove beyond a reasonable doubt that the student broke the rule. Generally, the alibi would have come up when the college was investigating- and you can usually appeal an expulsion if you weren't provided an opportunity to defend yourself. It still has nothing to do with the court case.

When it comes to relatively petty rules like alcohol on campus or cheating, you are right. It's a college matter, and they can investigate internally. However, when it comes to criminal cases, if the student in question was found innocent in a court of law, you are effectively saying that despite being acquitted:

1.) The student has a bogus mark on his/her permanent record.
2.) The student has been deprived of an education he/she probably still owes tuition for, provided they made student loans.

They are hardly well-off after these events which shouldn't have happened in the first place. You tell me how that is, in any sense of the term, right.

If you're fired by your employer, then proving you didn't do what you were fired for won't get you your job back- this is the same thing.

It could affect your ability to collect unemployment, though. Plus, people have sued for unlawful termination in cases where they've been acquitted for a crime that they were fired for upon indictment.

[D_Yeti_Esquire]

Honestly, this whole thing is a case where I think the fact it's the Trump administration is clouding the issue.

I believe right now the recommendations they're looking at are the ones from the American Bar Association. The ABA in drafting these recommendations brought in both victims advocates and advocates for the accused, so basically both sides gave up stuff.

https://www.americanbar.org/content/...thcheckdam.pdf

To my understanding the big concessions victims rights people gave up were the defendant has a right to an attorney in whatever proceeding occurs and the defendant has the right to question in the form of written questions. (Currently there is no requirement, just the accusation.)

What the accused rights people gave up was the burden of proof which they were originally looking for the legal definition of clear and convincing (a higher burden) and after safeguards were put in place were comfortable with the lower burden or "preponderance of evidence".

So all they're looking for here is some sort of standard wherin before someone is kicked out of a school, an impartial panel has to look at both sides (by law) and if they can come to a unanimous decision that the Brock's of the world did it, they can do what they will.

[s_stabeler]

When it comes to relatively petty rules like alcohol on campus or cheating, you are right. It's a college matter, and they can investigate internally. However, when it comes to criminal cases, if the student in question was found innocent in a court of law, you are effectively saying that despite being acquitted:

SNIP

I don't actually entirely disagree with you, but the answer is that the agreement the student signed included provision for termination of the contract under the disciplinary procedure of the university of college. that is why expulsion is considered legal. Strictly speaking, a particularly harsh university could still require the repayment of the full year's tuition.

I happen to agree that you should be able to get a rehearing of the case as regards expulsion.

also, you can sue for anything. provided the proper dismissal procedure was followed, you'd lose.

[TheHuckster]

I don't actually entirely disagree with you, but the answer is that the agreement the student signed included provision for termination of the contract under the disciplinary procedure of the university of college. that is why expulsion is considered legal. Strictly speaking, a particularly harsh university could still require the repayment of the full year's tuition.

In the context of this thread, the implication is that laws greatly encourage colleges to adopt policies like this, since if they let an accused rapist continue college after acquittal, they are subject to loss of funding by Title IX.

Now, I understand perhaps temporarily suspending a student while the investigation/trial is ongoing, but if Title IX strongly recommends anything above that, then this is where the problem lies, and is what is being discussed in the OP.

[Canarr]

also, you can sue for anything. provided the proper dismissal procedure was followed, you'd lose.

Or maybe not.

The university, Barrett responded, misunderstood the importance of cross-examination for assessing witness credibility. Miami’s “claim that no amount of cross-examination could have changed the minds of the hearing panel members,” the judge concluded, “arguably undercuts the fairness of the hearing.” The “arguably” was a nice touch.

Barrett’s decision marked the 59th judicial setback for a college or university since 2013 in a due-process lawsuit brought by a student accused of sexual assault. (In four additional cases, the school settled a lawsuit before any judicial decision occurred.)