Enough! What the F does it mean for a college to “handle” sexual assault? Are they in the law enforcement business now? When my daughter is old enough, I will tell her if anything like that happns, to call the cops. Real cops, not badged-up university police who work for the trustees. Especially if it happens on an off-campus vacation. If my daughter is victimized I want to see the guy in a real court, not in some bullshit academic committee.
And when my son is old enough, if anyone implies he has committed a crime or any improper act (whether it be another student or a university official), they will be getting a vist from a lawyer who will tell them to prove it or STFU. No student should have to start their career with the taint of defamation.
That leaves plenty of bad behavior that the colleges may properly address, but “sexual assault” is a legally defined term, and if they want to sling it around, be aware their little in-house commttees will suddenly be spending a lot of time with non-university police and non-university lawyers. The law already has ways to verify and deal with sexual assault, but now colleges are being pressured to invent their own world outside the law and make an end-run around due process and standards of proof. But let me guess: you have to sign an abitration clause as a condition of attendance, right?
For young women, colleges are a model of chivalry compared with what goes on in the outside world.
For young women, colleges are a model of chivalry compared with what goes on in the outside world.
What goes on on college is a trial run for what goes on in the real world.
Title IX is meant to prohibit sex discrimination on campuses and that is interpreted to mean taking steps to ensure that the college is not tolerant of sexual assaults. Many colleges ask students to call the campus security before calling the PD. That might be misguided, but is still no excuse for tolerating those who are assaulting women.
I agree with calling the police… However, please be aware that on some campuses calling 911 from college phones connects you to the campus police/security. Sometimes you have to dial 9-911 (or something like that). Be sure to look for this info, it’s not (usually) prominently displayed.
The thing is — you don’t know that they aren’t trying to prove it. If you are paying attention to this argument, there *is* often some hearing or investigation, but there isn’t much price to be paid for assaulting women.
“Many colleges ask students to call the campus security before calling the PD.”
Of COURSE they do. For emergencies, call whoever can get there first. But for a sexual assault that is not happening now, what the college asks is irrelevant. Use a cell phone and insist on a state, county, or municipal cop.
” there *is* often some hearing or investigation, but there isn’t much price to be paid for assaulting women.”
And there it is – the end run around the American justice system.
If you are assaulted, call the cops. But if you can’t bring your story to a real court, maybe you don’t have a case. There is a price to pe paid for accusing someone of assaulting women without proof.
And if that assault is one guy hitting another guy in a dorm room with no witnesses should we treat it the same way? What if the hitter brags about it to others? Should that factor in?
And yes, the victim above should call the police.
But this idea that women who report sexual assault – to campus security or the police – are believed isn’t realistic.
It isn’t about shifting proceedings. It is about a separate set of proceedings. Those who have been assaulted can press their case with law enforcement, but the universities still have their Title IX obligations AND they have their Student Code enforcement obligations. The proceedings and complaints are largely about the college’s own tolerance of sexual assault complaints. If a woman is assaulted at work, she can not only deal with it via law enforcement, but also pressuring her employer to make sure that they are not tolerating an atmosphere that provides permission for that behavior.
There’s a reason that this piece from Stewart highlights the differing sets of rules for being on campus for men and women on campus.
Perhaps I am missing some legal point. If some academic committee accuses me of some kind of sexual charge, the first and only thing I would say is “Prove it in a court of law, or STFU.”
Those different rules are exhausting. I’m not sure men realize that women live like this.
I’m also not sure why being accused of sexual assault is different/worse than being accused of (basic? non-gendered?) assault or any other crime? Innocent people get accused of crimes everyday, but it seems, to me, that the bar is set higher for sexual assault than other accusations. Which is a bit confusing because most sexual assaulters receive no punishment.
The place to hear the evidence is a court of law, not Dean Wormer’s office. Until that happens, any action the college takes against me based on an unproven allegation is actionable as far as I know. I wouldn’t think the trustees would want that kind of liability.
You’re still missing process here. And the college process has been in place since forever, so if you are rattling your manufactured outrage at liability, you can take that as a clue that you are missing the process here.
1. But for a sexual assault that is not happening now, what the college asks is irrelevant. Use a cell phone and insist on a state, county, or municipal cop.
In Delaware both UD and DSU are municpalities for police purposes, and the town police and state police are not going to respond in a non-immediate emergency situation no matter what you say, because they don’t have primary jurisdiction any more; those university police forces are accredited by, and operate under the direct supervision of the Attorney General’s office (now there’s a comforting thought). It’s literally like you cannot call the State Police in the middle of Dover and not expect them to forward the call to the Dover PD.
2. “Sexual assault” is investigated as a crime on campus under the supervision of the AG’s office. DSU actually does a pretty good job of it, UD I’m not sure about. But (and this is in keeping with Garrity provisions) there is also a separate administrative investigation of such charges, because while the evidence might not stand up in terms of “beyond a reasonable doubt” for criminal court, all the university has to prove in regard to violation of its policies is “preponderance of the evidence.” Moreover, most Title IX requirements are focused on the “lesser” offenses that we usually characterize as sexual harassment. Our policy at DSU is called a “sexual misconduct” policy, and covers everything from one-time inappropriate remarks or touching all the way up to sexual assault. Universities are REQUIRED since April 2012 to have these policies in place and to have a hearing policy that is reviewed, along with all cases on an annual basis, by the US DOE.
3. Sexual assault differs from other forms of assault in terms of university response because, under Title IX (and the “Dear Colleagues” letter of April 2012 and the University of Montana letter of 2013), the US DOE requires them to be considered separately. That may or may not be intellectually defensible, but that’s why it is done. If you don’t do that, you risk losing all your Title IX funds.
4. You are no longer supposed to be heard through the student judicial system for sexual misconduct. At DSU there is a hearing board that operates under the direct supervision of a Vice President, with a pool of fifteen people (faculty, administrators, and staff) who have received training the handling of these cases) to hear the cases, and there is an automatic requirement that, once the accusation is made, the university has to take immediate steps to protect the victim even before the investigation commences.
5. An important point for Delaware politics: UD is currently among the universities being investigated for its potential non-compliance with Federal standards; DSU has been cited for having developed one of the most rigorous policies (applying to everyone, not just students), and we’re currently being sued by someone who was accused of rape because the university required him to leave campus during the first two weeks of the investigation in order to protect the young woman’s safety. And while I cannot give you complete stats, I can tell you that DSU students found guilty of sexual misconduct are usually suspended for at least one semester, and have–in more serious cases–been expelled and/or prosecuted.
Thank you for this, Steve. I know at my son’s college that dialing 911 gets you the university police/security.
And I can’t wrap my head around making false rape/sexual assault accusations as the norm. It simply isn’t true – not in the big scheme of things. As I’ve gone through life I’ve lost count of the number of women who tell their experiences (over dinner/cocktails) and not realize they were raped/sexually assaulted. It’s far more likely to find women who blame themselves (what they wore, how much they drank, etc.) then actually press charges. And I’m really tired of focusing on the miniscule number of men falsely accused – it’s like voter fraud. Yeah, it happens, but it’s not the problem. And just like voter fraud, it’s designed to silence the majority.
@pandora – my point isn’t about false allegations, it is about “unproven” allegations. Repeating unproven allegations is potentially defamation. And anyone who agrees to show up for his own rape hearing based on the “preponderance of evidence” needs a new lawyer.
” I’m really tired of focusing on the miniscule number of men falsely accused”
Maybe enough of these lawsults will focus the trustees minds: Steve alludes to the lawsuit filed by Andre L. Henry, who was kicked of campus for 45 days before he was cleared by the university. Henry is suing DSU and the accuser for damages and violation of civil rights.
*sigh* If only you were equally concerned about the women raped/sexually assaulted rather than the miniscule number of men falsely accused. There’s a balance here, and you don’t seem to afford it to both sides. Your concern is about falsely accused men (which we can address) rather than on the women who were raped and sexually assaulted. Why is that?
Notice how the terms “sexual harassment,” “sexual misconconduct,” “sexual assault,” and “rape” are being used interchangably. But we are all doing it; you’ve even got me doing it.
No, I clearly said my concern is with “unproven” allegations, whether they turn out to be false or not. The lawsuits by the falsely accused simply call attention to the overall lack of authentic due process and standards of proof. If the accusations aren’t false, bring them to a real court. If you are unable to do that, maybe that tells you something about your case.
You say that as if the courts are fair. They aren’t… and you know that.
“Ruining” a boys’ life carries more weight than a woman who was raped. You do get that… right? Hello? Steubenville? Even with the video taping and the YouTubes and all the social media bragging you still have doubts. No woman can reach the bar you’ve set.
Look, I have both a son and a daughter, and they both carry equal weight for me. I don’t want either of them to be abused or treated unfairly. Am I now some kind of nut for insisting on American jurisprudence like we learned in civics class?
So, puck, what damages did the young man endure that he should be compensated for, and how did the university violate his civil rights?
Here’s the story you linked:
In a federal lawsuit, Andre L. Henry, 21, said the school did not provide him due process while it reviewed criminal charges that already had been dropped.
This is bad reporting: the university did not “review criminal charges,” it investigated an allegation of sexual misconduct against university policy completely separate from the criminal case.
As I explained above, the fact that criminal charges were dropped does not in any way remove the university’s legal obligation to conduct an investigation of potential violations of the sexual misconduct policy. He could be not guilty of rape, or there could not have been enough evidence for criminal prosecution, but he could have still been found guilty under administrative hearings of violating university policy on sexual misconduct. Two different animals.
As for putting him off campus–that’s one of the remedies posited in current Title IX US DOE policy. So good luck suing DSU for following Federal guidelines. In addition (which the article does not tell you), the young man was given (a) the opportunity to continue his coursework online during the investigation; (b) received tuition remission for the semester (before he filed suit, mind you); and (c) his complaint that he was not told he could have an attorney present in his judicial hearing is also his failure to read the Student Policies Handbook (which so states, and which he signed as having read).
What would your solution have been? Should someone who is still under active investigation by the university for sexual misconduct be free to walk around campus and enter the same classes as the person who made the accusation?
“Should someone who is still under active investigation by the university for sexual misconduct be free to walk around campus and enter the same classes as the person who made the accusation?”
It depends. In the real world, the accused’s level of freedom is determined by a JUDGE. But the college apparently demands lower standards of proof than a common restraining order. They can have that policy if they want, but if enough students have access to a good lawyer, it may come back to bite them.
I said what my solution would be. Call the cops and take it to a real court. If you think there is a threat, tell a judge. A real judge.
“the fact that criminal charges were dropped”
Perhaps the story is faulty, but apparently “criminal charges” were never brought to a real court. Which might have been a clue that the case was a bust. Criminal charges” are not decided based on the preponderance of evidence.
Universities have policies. Students agree to abide by them, leave, or suffer consequences. In many cases (as in this one) the Feds set the requirements for the policies.
Students coming to DSU agree in advance to participate in the existing judicial system.
The university was notified that there had been an accusation of sexual assault. In keeping with the Garrity Act and Title IX, the university MUST conduct its own investigation, independent of that of law enforcement. They are not allowed to share data; they must gather information and witnesses separately from law enforcement.
They are also required, again by Title IX, to use a different evidentiary standard–“preponderance of the evidence” vs “beyond a reasonable doubt.”
In many cases things that are not crimes, or things for which there is not sufficient evidence for a criminal conviction, violate university policy. Had the university found this individual to be guilty of sexual assault, the maximum penalty that the university could have enacted against him would have been expulsion, forfeiture of all fees, and permanent restriction from campus. That’s not a criminal conviction.
Given that the university cleared this individual after a thorough investigation rather than rushing it through to a guilty judgment, and given that the university followed the Federal requirements, there’s very little chance of damages.
But I note again that you failed to answer my final question: given the responsibility to protect the woman who made the allegations during the investigation, and given that they lived in nearby buildings, ate in the same cafeteria, attended the same classes, what alternative would you have them pursue?
And, finally, before you go with the idea that dropping the criminal charges somehow proves innocence (and therefore false accusation by the woman) you don’t have any information to substantiate that. Dropping the criminal charges means that the AG’s office didn’t believe it had sufficient evidence to secure a conviction. That doesn’t mean nothing happened–as OJ Simpson discovered when he lost the wrongful death civil suit to Nicole Brown-Simpson’s family right after being acquitted of murder.
“dropping the criminal charges somehow proves innocence (and therefore false accusation by the woman) you don’t have any information to substantiate that”
The accused doesn’t have to prove innocence.
Steve, you did a good job explaining the tangled web of laws that gut the Sixth Amendment and the presumption of innocence, but nevertheless they are gutted for students. That is the proper basis for a challenge.
puck the presumption of innocence under the 6th Amendment governs crimes and the government.
A university determining whether someone violated policy is neither, particularly when signing up to go there requires you to agree in advance to the rules. Don’t like them? Plenty of other institutions.
And you keep avoiding the issue of the university’s responsibility to protect the female student.
Rape and accusations of rape are a criminal legal matter, not a procedural policy matter. The law provides mechanisms to protect alleged victims, but you have to convince a judge first – which seems to be a real problem here. You can’t just get a restraining order by telling the teacher – at least not without a perversion of law. But if you want to buy into that perversion, go for it. I don’t think college students even have the same protections from expulsion as high school students.
I still say it is reasonable for an student to hold a school responsible for damages resulting from an unproven claim. The school may argue “The Feds made me do it” but that is a matter for litigation.
So like so many other things, you get the rights you can afford.
Rape and accusations of rape are a criminal legal matter, not a procedural policy matter.
In plenty of institutions, that’s just not true. I’ve personally seen people charged with various criminal actions who were suspended and/or let go just because that kind of behavior wasn’t something the employer wanted to tolerate. Have also seen multiple times employees who were accused of assault of another employee (with witnesses) who were let go. An institution can have its own standards of behavior that if violated, may result in your being let go or maybe suspended.
@cassandra – you are describing at-will employment, which is a different animal from paying tuition to attend a publicly-funded college. Employers can terminate you for any reason or no reason. Unless you can prove the employer had a reason that violates your civil rights, or is provably spreading lies about you, you are screwed.
you are describing at-will employment, which is a different animal from paying tuition to attend a publicly-funded college.
Notice that once again you misstate the issue: you agree, as a condition of acceptance and attendance, to abide by certain policies and rules. You also agree, in advance, to be bound by the university’s methods of resolution. Some universities have zero-tolerance toward alcohol and will toss you if you are caught with beer in the dorms–even if you are of age. Tough shit. You agree to the rules when you walk in the door.
Don’t think you can live with them? Then go someplace else.
And allegations of sexual misconduct, as much as you continually like to say the opposite, are codified by Garrity statutes into labor and education law, have been adjudicated and upheld on multiple occasions, and are not just part of the Student Code of Conduct, but are also part of our faculty contracts. They do not violate the 6th Amendment as long as the university follows the due process it sets out in the policy.
And, pandora, note that the woman’s safety here is what DSU is being pilloried by Puck for protecting.
It was a post/video on women’s safety and sexual assault on college campuses. And shame on us for allowing this to turn into another “But what about the menz!” thread.
Fortunately, in America there is another option besides “if you don’t like it, leave.” You can take your concerns to court if you can afford it – which is what DSU and a number of schools are experiencing now.
In America anybody can sue anybody for anything at any time. The fact that they do so has absolutely no bearing on the validity of their point.
This young man’s suit amounts to complaining that he didn’t like the rules he had previously agreed to after they were applied to him. He has no damages.
And here again is the point: DSU has adopted a policy on sexual misconduct whose first priority is to protect the potential victim. Then the accused gets his/her (and, yes, it occasionally goes the other way) day for a hearing or a trial, and–what you keep missing in this case–is that DSU’s internal investigation exonerated the young man. But until it did, the university had just as big a commitment to keeping the young woman safe as it did to protect his rights.
I’m willing to face a nuisance lawsuit (and that’s exactly what it is, as he suffered no damages) any day in order to keep the women on our campus safe when we are following exactly the due process rules we promised to follow.
“This young man’s suit amounts to complaining that he didn’t like the rules he had previously agreed to after they were applied to him. ”
That’s how lawsuits work. You can’t spot every potential injustice before it happens to you.
“He has no damages.”
That is what the court will decide.
Steve, it may be true as you describe that students’ legal rights been slowly eviscerated by a Byzantine series of laws that have created an entirely separate college legal system that is not recognizable by most Americans. And under that system rape has been defined downward. But that is the value of a lawsuit, to try to bring the focus back to traditional American jurisprudence and standards of proof.
Coda: I seriously reviewed the Dear Colleague letter, and it is devastating.While it does provide certain protections to alleged victims, at least while they are on campus, it goes much too far in relaxing standards of proof.
I am not trying to drag out this thread, therefore I will not respond or add any more comments.
My advice to anyone who runs afoul of a college Title IX board is – don’t participate or cooperate, quit the college immediately, and pursue your options in a real court. Even if you are cleared, the risk of permanent defamation is too high, and it is a hostile environment tilted against the accused. with Federal blessing. Once you are accused, the well is poisoned and the best course is to cut your losses and get out to avoid further damage. A couple of college credits is not worth the risk of being branded a sexual offender. If you are in a top tier college, then you have real monetary damages to pursue.
On campus, every thing you thought you knew about American due process is wrong. Assumptions about your “right to a day in court” are no longer true if you are a college student.
For sexual charges, colleges now are required to have a system of kiddie courts with lower standards that bypass the real courts. The OCR letter itself acknowledges that many campus Title IX officials are not sufficiently trained, and are not proper legal or judicial authorities but instead are repurposed academic staffers. Worst of all, OCR does not require schools to allow either party to have a lawyer.
I suspect that creation of these kiddie courts is actually discouraging victims from taking their complaints to a real court.
Awesome. Advice for the rapists and the assaulters. How very progressive of you.
Do you have a son? You might want to consider homeschooling that guy. For that matter, homeschooling any daughters you might have too. Because you are advocating the kind of hostile environment that sexually harassment policy is meant to try to address. Unless, of course, you think it is OK for your own kids to be subject to harassment.
Here’s puck, who has read one letter, and who has not read the Montana letter or looked at the policies adopted by our own state universities, and already he’s into his cutsie little “kiddie court” crap.
The reality is that I agree with him (remember, I represent faculty members charged under the Title IX statute, and they have a hell of a lot more to lose than students) about the relaxing of the evidentiary standard.
That said, there is a LOT of good in the Dear Colleagues letter, specifically in the requirement that colleges MUST investigate ALL complaints, and MUST take precautions to safeguard the victims even before the investigations are started.
As for the training issue–the letter is over two years old, and I can tell you that at DSU the people handling these issues are in fact quite well trained.
puck continues to ignore the fact that when you agree to come to a university you agree to abide by its policies (including its resolution policies) as a condition of attendance. And those policies may include things being prohibited that are not necessarily crimes on the outside. (Think of the honor code at West Point or no drinking provisions at religious colleges.)
While admitting that these policies come from a position of backlash and that I do not like the evidentiary standard (I think it needs to be “clear and convincing evidence”), there is an important point being glossed over here. For the past ten years college sexual assaults and sexual misconduct toward women has been increasing, and–increasingly–colleges and universities have been sweeping it under the rug and even protecting the perpetrators. For every Duke lacrosse team debacle there are dozens of young women who have found themselves forced to withdraw from school because nobody would investigate their claims or take protecting them seriously.
I do know that, despite what puck apparently thinks, over the past two to three years as DSU has implemented tougher sexual misconduct rules, the number of reported cases has gone down. This would not be happening if puck’s imagined world of women constantly filing false claims really existed; instead, with relaxed evidence rules we would have seen MORE claims, not fewer. What seems to be happening is that there is actually less to report.
Here’s the challenge for puck: show me a case in Delaware (including the case currently being litigated) where a young man has had his college career falsely ruined due to college “kiddie courts”? Remember, DSU cleared the young man who is suing them, and voluntarily made good his financial damages before he sued. As for his reputation, until his lawsuit ended up in the newspaper, nobody on campus even knew his name because the proceedings were confidential, and kids withdraw or leave campus all the time without anybody thinking twice about it.
@Davy: fair question. I have always thought (and argued in hearings) that the evidentiary standard is so low that with untrained personnel an accusation is tantamount to a conviction before the defendant ever testifies. I would much prefer “clear and convincing evidence,” and I generally like the “reasonable person” standard, although several attorneys (including those of my union) have raised interesting objections to it (that are so tied to the particulars of individual cases that I can’t figure out right now how to generalize them).
That being said, I have also seen–at DSU–the system work pretty much as it was supposed to work. It has correctly identified people who were guilty, and has correctly acquitted people who were not, while at the same time protecting the safety of the accuser. That said, the process (even IF you are an innocent defendant, possibly ESPECIALLY if you are an innocent defendant) is harsh and grueling.
I think that you misunderstood me. What is DSU’s policy with respect to sexual harassment that is not sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from DSU’s program? In other words, how does DSU deal with sexual harassment that stops short of creating a hostile environment?
Breaking my vow not to post, because Steve may offer some valuable insights:
In the US, the Constitution guarantees the right of the accused to due process under the “beyond a reasonable doubt” standard for criminal charges. Preponderance of evidence is the accepted standard for civil suits.
In fact I understand that until 1970, juvenile criminal cases were heard under the preponderance of evidence standard until the Supreme Court put a stop to that. Do college students now have less rights that 1960s juveniles?
So a question for Steve, since he has direct experience: In these campus cases, ,are the charges stated as criminal charges, or as civil rights violations? For example (let’s call it rape, since every sex allegation becomes “rape” in this thread): Is the charge written up as “John Doe raped Jane Doe,” or is it “John Doe violated Jane doe’s civil rights?
I notice professional journalists are careful not to use the word “guilty” in reporting college sex hearings, choosing the word “responsible for” instead. An Orwellian dodge, but one that keeps their parent corporations from being sued. Bloggers of course are less careful.
Which gets to the heart of my point: Sexual assault is a felony, and it is wrong and un-American to put felonies in the hands of college committees. Any person who puts his fate in the hands of a college committee for a felony is a fool.
Of course women need more protection than they have been getting. But if the police and courts are not doing their jobs, that is who the Feds should go after. Instead, they are using the power of the purse to coerce colleges into taking on the burden of handling FELONIES. Make the police and judiciary do their jobs instead.
The thinking is that relaxing due process will somehow produce more justice. That is a toxic concept. Did the Patriot Act produce more justice or more safety?
She who would give up liberty for security…
I know women are rightly looking for protection and justice, but this is not the way to go.
Since the new Federal redefinitions heavily stressing the potential loss of funds, panicky trustees have been ordering up new handbooks cut-and-pasted from the Federal guidance. I don’t care how many sensitivity Powerpoints the committee members sat through; their loyalty is to the trustees and not to the Constitution. In a real court, in principle the officials are vested in the real legal system with all its protections, not in some Board of Trustees with a financial ax over their heads.
I have now been stuffed with so much straw about saying that women are lying. I don’t think the women are necessarily lying, although the relatively few “false accuser” cases serve to highlight my point. Clearly something happened that upset them – but does it meet the legal definition of sexual assault? That is for a real court to decide, not Dean Wormer and his hirelings.
And yes, I get the point about prior agreement to codes of conduct, etc. But if you want to use “guilty of rape” as a reason to kick somebody out, you need to make damn sure that person was guilty of rape, not “it was more likely than not that he was responsible.” And the only way to find that out is in a court of law.
If on the other hand, you want to kick someone out based on a loosey-goosey committee hearing, fine, but if you then imply they were “guilty of rape,” expect to be held liable.
If colleges want to try students on non-felony charges in their kiddie courts, I say go for it. But when your are charged with a real felony you need to be in a real court with a real lawyer.
And in case you didn’t notice, this is in on my part an respectful intellectual debate, with potential for real illumination, and I hold no brief for the “men’s rights” crowd, in fact I don’t know much about it nor do I care to. And I will continue to refrain from using personal scorn as a debating tactic, despite many provocations, although I am sure my tongue is sharp enough to match any of you.
Schools (not students) owe the duty under Title IX:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Schools must create and maintain a non-hostile environment with respect to gender. If a school ignores or otherwise fails to respond adequately to gender discrimination (which includes sexual assault), then the school breaches its duty to the government. The government has tasked schools with policing third parties (students and faculty). Over the past 4 to 5 years, the government has tightened the leash by removing procedural protections for third parties accused of gender discrimination.
The adjudication is not about punishment per se. But if a school determines that gender discrimination has occurred, then the responsible party is often removed from the environment (temporarily or permanently). The school’s goal is not punishment; if anything, the school’s goal is general deterrence and incapacitation (by removal).
In short, the goal is safety, not guilt or punishment. Anyone who wants justice (whether a victim or an accused) must look elsewhere. No one is on trial. That said, the adjudications are modern Star Chambers, and the adjudications have lasting effects on the parties.
In the US, the Constitution guarantees the right of the accused to due process under the “beyond a reasonable doubt” standard for criminal charges. Preponderance of evidence is the accepted standard for civil suits.
This due process is guaranteed from your government. Not from anyplace else. Sexual assault accusations on campus are dealt with as violations of campus rules (Title iX requirements) and/or standards of behavior violations. Multiple people have made this point to you over the course of this thread, and yet you persist in insisting on some perfect justice for the young men accused without ever looking for the same perfect justice for the your women assaulted.
Your argument is flawed. The government requires schools to use the preponderance of the evidence standard. Before OCR’s 2011 letter, many schools used the clear and convincing evidence standard.
Putting aside any problems with the standard, the way that the government legislated the mandate is more troubling. The OCR has skirted the Administrative Procedures Act by rule-making through these letters rather than through the APA’s prescribed process.
Further, your focus on justice is misplaced. There is no justice. The goal is safety. When you invoke justice, whether for the accused or the victim, you underscore Puck’s point.
In other words, how does DSU deal with sexual harassment that stops short of creating a hostile environment?
Assuming that someone is found to have engaged in what I will call “minor” sexual misconduct there are a variety of remedies. I am doing this from memory, so the list is not all inclusive:
1. If the misconduct is believed to have stemmed in whole or in part from cultural or social ignorance (lack of knowledge), then students have been required to attend training courses or counseling in order to stay enrolled.
2. Students with a “one-time” minor incident will sometimes receive warning letters.
3. In cases where 1 or 2 above happens (sometimes both) there may be an adjustment made in the schedule, living arrangements, or team membership to insure that the students in question are separated. (Such issues arise in dorms, classrooms, and on teams/band/chorus.)
4. There have been, I believe (but I’m stretching here), situations in which 1, 2, and/or 3 above pertained, and the student was required to do community service to maintain enrollment. I don’t know if that’s actually happened, but I believe it is possible.
5. For more serious issues, a student may be suspended for a semester rather than being expelled. A student could be denied the ability to take summer courses if an incident occurred in the spring.
I’m sure there are some options I have missed, but does this give you enough of an idea to answer the question?
I just got a creepy vibe here that guys who can’t and don’t get sex are scared to death that if they ever do get sex, that person is going to turn on them and throw them under the bus for personal gain…
Dudes, it’s just sex… There may be female opportunists out there, just like there may be male opportunists. But over a lifetime, most of us nice people never meet them… Assault is assault. Sex is sex… There is a gigantic difference and the fact that you are so anti-women, is probably because you don’t know the difference due to your own lack of experience being with them…..
Way too long for the morning, but I’ll take a stab at part of it. Garrity provisions in labor law (which governs university faculty and staff, and is recognized as having application to students by repeated judicial rulings) say that when an incident occurs that is BOTH a potential violation of university policy AND a potential violation of the law, that the following happens:
1. There is a criminal investigation, conducted as such, and without reference to university policies. At DSU this is initially conducted by the DSU Police, which (like UD Police) is a fully accredited police force with arrest and investigative powers, falling directly under the supervision of the AG’s office. The officers have to convince a prosecutor from the AG’s office that they have enough evidence to be worth prosecuting. If there ends up being a plea bargain in the case, senior university officials would have to approve the deal, but they have nothing to do with the police investigation because ….
2. Garrity provisions say that the university can conduct its own administrative investigation into the incident, not with reference to criminal charges, but with reference to whether or not policies have been violated. This investigation is not governed by criminal law, but by labor law (or labor law and education law), and has different standards of proof, due process, and appeal from a criminal investigation. But there is a further wrinkle …
3. Garrity requires that the investigations NOT be co-mingled. Other than the original police report (if such is what notified the administration of the incident), the DSU Police and the administrators MAY NOT discuss their investigations with each other, share evidence, or engage in any other form of cooperation. They must be completely parallel investigations, and may or may not even involve the same witnesses or evidence.
4. If the individual is found guilty of the criminal charge, the university usually drops the administrative investigation and then proceeds under provisions of the student handbook or employee contract that allow then to take action against somebody convicted of a crime. Usually, however, the administrative investigation is over long before there is a trial date.
5. If the individual is found not guilty of the crime, the university still has to decide independently whether or not the individual violated policy. Being found not guilty of the crime does not equate with not having violated policy.
6. Violations of the Garrity provisions (co-mingling the two investigations) is ample grounds for either a lawsuit or motion for mistrial. Universities (and all other employers) have to be incredibly careful with this because people like university attorneys tend to serve in dual roles.
A university investigation for violation of policy is neither a criminal charge nor a civil rights charge; it is an administrative charge by an employer or school.
As such, the courts have held that the due process standard that applies is (a) what is set out in handbook and/or employee contracts; (b) what is required under the general provisions of labor law (a maze in and of itself); and (c) what may be required by the Feds under auspices like Title IX. In most cases, criminal attorneys should not be entrusted to handle administrative investigations on behalf of defendants because it is a completely different kind of law, for which they are usually ill-prepared. In litigation with UD and DSU that I am aware of, none has been handled by attorneys inside Delaware–all were from Philadelphia or DC. Both UD and DSU faculty unions employ the same Washington DC practice as their attorneys–specialists in labor and education law.
I know that doesn’t get to everything you asked, but it is my best attempt to start.
Enough! What the F does it mean for a college to “handle” sexual assault? Are they in the law enforcement business now? When my daughter is old enough, I will tell her if anything like that happns, to call the cops. Real cops, not badged-up university police who work for the trustees. Especially if it happens on an off-campus vacation. If my daughter is victimized I want to see the guy in a real court, not in some bullshit academic committee.
And when my son is old enough, if anyone implies he has committed a crime or any improper act (whether it be another student or a university official), they will be getting a vist from a lawyer who will tell them to prove it or STFU. No student should have to start their career with the taint of defamation.
That leaves plenty of bad behavior that the colleges may properly address, but “sexual assault” is a legally defined term, and if they want to sling it around, be aware their little in-house commttees will suddenly be spending a lot of time with non-university police and non-university lawyers. The law already has ways to verify and deal with sexual assault, but now colleges are being pressured to invent their own world outside the law and make an end-run around due process and standards of proof. But let me guess: you have to sign an abitration clause as a condition of attendance, right?
For young women, colleges are a model of chivalry compared with what goes on in the outside world.
For young women, colleges are a model of chivalry compared with what goes on in the outside world.
What goes on on college is a trial run for what goes on in the real world.
Title IX is meant to prohibit sex discrimination on campuses and that is interpreted to mean taking steps to ensure that the college is not tolerant of sexual assaults. Many colleges ask students to call the campus security before calling the PD. That might be misguided, but is still no excuse for tolerating those who are assaulting women.
I agree with calling the police… However, please be aware that on some campuses calling 911 from college phones connects you to the campus police/security. Sometimes you have to dial 9-911 (or something like that). Be sure to look for this info, it’s not (usually) prominently displayed.
” but is still no excuse for tolerating those who are assaulting women.”
Agreed, but prove it first before taking administrative action. Don’t try to implement a crackdown by relaxing standards of proof.
The thing is — you don’t know that they aren’t trying to prove it. If you are paying attention to this argument, there *is* often some hearing or investigation, but there isn’t much price to be paid for assaulting women.
“Many colleges ask students to call the campus security before calling the PD.”
Of COURSE they do. For emergencies, call whoever can get there first. But for a sexual assault that is not happening now, what the college asks is irrelevant. Use a cell phone and insist on a state, county, or municipal cop.
” there *is* often some hearing or investigation, but there isn’t much price to be paid for assaulting women.”
And there it is – the end run around the American justice system.
If you are assaulted, call the cops. But if you can’t bring your story to a real court, maybe you don’t have a case. There is a price to pe paid for accusing someone of assaulting women without proof.
And if that assault is one guy hitting another guy in a dorm room with no witnesses should we treat it the same way? What if the hitter brags about it to others? Should that factor in?
And yes, the victim above should call the police.
But this idea that women who report sexual assault – to campus security or the police – are believed isn’t realistic.
“But this idea that women who report sexual assault – to campus security or the police – are believed isn’t realistic.
Agreed, but shifting the proceedings to adminstrative hearings is not the solution.
It isn’t about shifting proceedings. It is about a separate set of proceedings. Those who have been assaulted can press their case with law enforcement, but the universities still have their Title IX obligations AND they have their Student Code enforcement obligations. The proceedings and complaints are largely about the college’s own tolerance of sexual assault complaints. If a woman is assaulted at work, she can not only deal with it via law enforcement, but also pressuring her employer to make sure that they are not tolerating an atmosphere that provides permission for that behavior.
There’s a reason that this piece from Stewart highlights the differing sets of rules for being on campus for men and women on campus.
Perhaps I am missing some legal point. If some academic committee accuses me of some kind of sexual charge, the first and only thing I would say is “Prove it in a court of law, or STFU.”
Those different rules are exhausting. I’m not sure men realize that women live like this.
I’m also not sure why being accused of sexual assault is different/worse than being accused of (basic? non-gendered?) assault or any other crime? Innocent people get accused of crimes everyday, but it seems, to me, that the bar is set higher for sexual assault than other accusations. Which is a bit confusing because most sexual assaulters receive no punishment.
The academic committee doesn’t make the accusation. The woman who was assaulted does. You’re missing process here.
The place to hear the evidence is a court of law, not Dean Wormer’s office. Until that happens, any action the college takes against me based on an unproven allegation is actionable as far as I know. I wouldn’t think the trustees would want that kind of liability.
You’re still missing process here. And the college process has been in place since forever, so if you are rattling your manufactured outrage at liability, you can take that as a clue that you are missing the process here.
OK a couple misconceptions here:
1. But for a sexual assault that is not happening now, what the college asks is irrelevant. Use a cell phone and insist on a state, county, or municipal cop.
In Delaware both UD and DSU are municpalities for police purposes, and the town police and state police are not going to respond in a non-immediate emergency situation no matter what you say, because they don’t have primary jurisdiction any more; those university police forces are accredited by, and operate under the direct supervision of the Attorney General’s office (now there’s a comforting thought). It’s literally like you cannot call the State Police in the middle of Dover and not expect them to forward the call to the Dover PD.
2. “Sexual assault” is investigated as a crime on campus under the supervision of the AG’s office. DSU actually does a pretty good job of it, UD I’m not sure about. But (and this is in keeping with Garrity provisions) there is also a separate administrative investigation of such charges, because while the evidence might not stand up in terms of “beyond a reasonable doubt” for criminal court, all the university has to prove in regard to violation of its policies is “preponderance of the evidence.” Moreover, most Title IX requirements are focused on the “lesser” offenses that we usually characterize as sexual harassment. Our policy at DSU is called a “sexual misconduct” policy, and covers everything from one-time inappropriate remarks or touching all the way up to sexual assault. Universities are REQUIRED since April 2012 to have these policies in place and to have a hearing policy that is reviewed, along with all cases on an annual basis, by the US DOE.
3. Sexual assault differs from other forms of assault in terms of university response because, under Title IX (and the “Dear Colleagues” letter of April 2012 and the University of Montana letter of 2013), the US DOE requires them to be considered separately. That may or may not be intellectually defensible, but that’s why it is done. If you don’t do that, you risk losing all your Title IX funds.
4. You are no longer supposed to be heard through the student judicial system for sexual misconduct. At DSU there is a hearing board that operates under the direct supervision of a Vice President, with a pool of fifteen people (faculty, administrators, and staff) who have received training the handling of these cases) to hear the cases, and there is an automatic requirement that, once the accusation is made, the university has to take immediate steps to protect the victim even before the investigation commences.
5. An important point for Delaware politics: UD is currently among the universities being investigated for its potential non-compliance with Federal standards; DSU has been cited for having developed one of the most rigorous policies (applying to everyone, not just students), and we’re currently being sued by someone who was accused of rape because the university required him to leave campus during the first two weeks of the investigation in order to protect the young woman’s safety. And while I cannot give you complete stats, I can tell you that DSU students found guilty of sexual misconduct are usually suspended for at least one semester, and have–in more serious cases–been expelled and/or prosecuted.
Thank you for this, Steve. I know at my son’s college that dialing 911 gets you the university police/security.
And I can’t wrap my head around making false rape/sexual assault accusations as the norm. It simply isn’t true – not in the big scheme of things. As I’ve gone through life I’ve lost count of the number of women who tell their experiences (over dinner/cocktails) and not realize they were raped/sexually assaulted. It’s far more likely to find women who blame themselves (what they wore, how much they drank, etc.) then actually press charges. And I’m really tired of focusing on the miniscule number of men falsely accused – it’s like voter fraud. Yeah, it happens, but it’s not the problem. And just like voter fraud, it’s designed to silence the majority.
@pandora – my point isn’t about false allegations, it is about “unproven” allegations. Repeating unproven allegations is potentially defamation. And anyone who agrees to show up for his own rape hearing based on the “preponderance of evidence” needs a new lawyer.
” I’m really tired of focusing on the miniscule number of men falsely accused”
Maybe enough of these lawsults will focus the trustees minds: Steve alludes to the lawsuit filed by Andre L. Henry, who was kicked of campus for 45 days before he was cleared by the university. Henry is suing DSU and the accuser for damages and violation of civil rights.
*sigh* If only you were equally concerned about the women raped/sexually assaulted rather than the miniscule number of men falsely accused. There’s a balance here, and you don’t seem to afford it to both sides. Your concern is about falsely accused men (which we can address) rather than on the women who were raped and sexually assaulted. Why is that?
Notice how the terms “sexual harassment,” “sexual misconconduct,” “sexual assault,” and “rape” are being used interchangably. But we are all doing it; you’ve even got me doing it.
“Your concern is about falsely accused men”
No, I clearly said my concern is with “unproven” allegations, whether they turn out to be false or not. The lawsuits by the falsely accused simply call attention to the overall lack of authentic due process and standards of proof. If the accusations aren’t false, bring them to a real court. If you are unable to do that, maybe that tells you something about your case.
You say that as if the courts are fair. They aren’t… and you know that.
“Ruining” a boys’ life carries more weight than a woman who was raped. You do get that… right? Hello? Steubenville? Even with the video taping and the YouTubes and all the social media bragging you still have doubts. No woman can reach the bar you’ve set.
Look, I have both a son and a daughter, and they both carry equal weight for me. I don’t want either of them to be abused or treated unfairly. Am I now some kind of nut for insisting on American jurisprudence like we learned in civics class?
” If some academic committee accuses me of some kind of sexual charge, the first and only thing I would say is “Prove it in a court of law, or STFU.”
That might keep you out of jail; it would also get you kicked out of the university.
“Am I now some kind of nut for insisting on American jurisprudence like we learned in civics class?”
I don’t know; is there such a thing as a utopia nut?
So, puck, what damages did the young man endure that he should be compensated for, and how did the university violate his civil rights?
Here’s the story you linked:
In a federal lawsuit, Andre L. Henry, 21, said the school did not provide him due process while it reviewed criminal charges that already had been dropped.
This is bad reporting: the university did not “review criminal charges,” it investigated an allegation of sexual misconduct against university policy completely separate from the criminal case.
As I explained above, the fact that criminal charges were dropped does not in any way remove the university’s legal obligation to conduct an investigation of potential violations of the sexual misconduct policy. He could be not guilty of rape, or there could not have been enough evidence for criminal prosecution, but he could have still been found guilty under administrative hearings of violating university policy on sexual misconduct. Two different animals.
As for putting him off campus–that’s one of the remedies posited in current Title IX US DOE policy. So good luck suing DSU for following Federal guidelines. In addition (which the article does not tell you), the young man was given (a) the opportunity to continue his coursework online during the investigation; (b) received tuition remission for the semester (before he filed suit, mind you); and (c) his complaint that he was not told he could have an attorney present in his judicial hearing is also his failure to read the Student Policies Handbook (which so states, and which he signed as having read).
What would your solution have been? Should someone who is still under active investigation by the university for sexual misconduct be free to walk around campus and enter the same classes as the person who made the accusation?
“Should someone who is still under active investigation by the university for sexual misconduct be free to walk around campus and enter the same classes as the person who made the accusation?”
It depends. In the real world, the accused’s level of freedom is determined by a JUDGE. But the college apparently demands lower standards of proof than a common restraining order. They can have that policy if they want, but if enough students have access to a good lawyer, it may come back to bite them.
I said what my solution would be. Call the cops and take it to a real court. If you think there is a threat, tell a judge. A real judge.
“the fact that criminal charges were dropped”
Perhaps the story is faulty, but apparently “criminal charges” were never brought to a real court. Which might have been a clue that the case was a bust. Criminal charges” are not decided based on the preponderance of evidence.
puck, do you read English?
Universities have policies. Students agree to abide by them, leave, or suffer consequences. In many cases (as in this one) the Feds set the requirements for the policies.
Students coming to DSU agree in advance to participate in the existing judicial system.
The university was notified that there had been an accusation of sexual assault. In keeping with the Garrity Act and Title IX, the university MUST conduct its own investigation, independent of that of law enforcement. They are not allowed to share data; they must gather information and witnesses separately from law enforcement.
They are also required, again by Title IX, to use a different evidentiary standard–“preponderance of the evidence” vs “beyond a reasonable doubt.”
In many cases things that are not crimes, or things for which there is not sufficient evidence for a criminal conviction, violate university policy. Had the university found this individual to be guilty of sexual assault, the maximum penalty that the university could have enacted against him would have been expulsion, forfeiture of all fees, and permanent restriction from campus. That’s not a criminal conviction.
Given that the university cleared this individual after a thorough investigation rather than rushing it through to a guilty judgment, and given that the university followed the Federal requirements, there’s very little chance of damages.
But I note again that you failed to answer my final question: given the responsibility to protect the woman who made the allegations during the investigation, and given that they lived in nearby buildings, ate in the same cafeteria, attended the same classes, what alternative would you have them pursue?
And, finally, before you go with the idea that dropping the criminal charges somehow proves innocence (and therefore false accusation by the woman) you don’t have any information to substantiate that. Dropping the criminal charges means that the AG’s office didn’t believe it had sufficient evidence to secure a conviction. That doesn’t mean nothing happened–as OJ Simpson discovered when he lost the wrongful death civil suit to Nicole Brown-Simpson’s family right after being acquitted of murder.
“dropping the criminal charges somehow proves innocence (and therefore false accusation by the woman) you don’t have any information to substantiate that”
The accused doesn’t have to prove innocence.
Steve, you did a good job explaining the tangled web of laws that gut the Sixth Amendment and the presumption of innocence, but nevertheless they are gutted for students. That is the proper basis for a challenge.
puck the presumption of innocence under the 6th Amendment governs crimes and the government.
A university determining whether someone violated policy is neither, particularly when signing up to go there requires you to agree in advance to the rules. Don’t like them? Plenty of other institutions.
And you keep avoiding the issue of the university’s responsibility to protect the female student.
Rape and accusations of rape are a criminal legal matter, not a procedural policy matter. The law provides mechanisms to protect alleged victims, but you have to convince a judge first – which seems to be a real problem here. You can’t just get a restraining order by telling the teacher – at least not without a perversion of law. But if you want to buy into that perversion, go for it. I don’t think college students even have the same protections from expulsion as high school students.
I still say it is reasonable for an student to hold a school responsible for damages resulting from an unproven claim. The school may argue “The Feds made me do it” but that is a matter for litigation.
So like so many other things, you get the rights you can afford.
Rape and accusations of rape are a criminal legal matter, not a procedural policy matter.
In plenty of institutions, that’s just not true. I’ve personally seen people charged with various criminal actions who were suspended and/or let go just because that kind of behavior wasn’t something the employer wanted to tolerate. Have also seen multiple times employees who were accused of assault of another employee (with witnesses) who were let go. An institution can have its own standards of behavior that if violated, may result in your being let go or maybe suspended.
Is there a reason why posts about women’s issues always turn into men’s concerns threads?
@cassandra – you are describing at-will employment, which is a different animal from paying tuition to attend a publicly-funded college. Employers can terminate you for any reason or no reason. Unless you can prove the employer had a reason that violates your civil rights, or is provably spreading lies about you, you are screwed.
What is it about defamation and rights of the accused that makes it a women’s issue? Or men’s issue, whichever way you want to look at it.
you are describing at-will employment, which is a different animal from paying tuition to attend a publicly-funded college.
Notice that once again you misstate the issue: you agree, as a condition of acceptance and attendance, to abide by certain policies and rules. You also agree, in advance, to be bound by the university’s methods of resolution. Some universities have zero-tolerance toward alcohol and will toss you if you are caught with beer in the dorms–even if you are of age. Tough shit. You agree to the rules when you walk in the door.
Don’t think you can live with them? Then go someplace else.
And allegations of sexual misconduct, as much as you continually like to say the opposite, are codified by Garrity statutes into labor and education law, have been adjudicated and upheld on multiple occasions, and are not just part of the Student Code of Conduct, but are also part of our faculty contracts. They do not violate the 6th Amendment as long as the university follows the due process it sets out in the policy.
And, pandora, note that the woman’s safety here is what DSU is being pilloried by Puck for protecting.
It was a post/video on women’s safety and sexual assault on college campuses. And shame on us for allowing this to turn into another “But what about the menz!” thread.
Fortunately, in America there is another option besides “if you don’t like it, leave.” You can take your concerns to court if you can afford it – which is what DSU and a number of schools are experiencing now.
puck
In America anybody can sue anybody for anything at any time. The fact that they do so has absolutely no bearing on the validity of their point.
This young man’s suit amounts to complaining that he didn’t like the rules he had previously agreed to after they were applied to him. He has no damages.
And here again is the point: DSU has adopted a policy on sexual misconduct whose first priority is to protect the potential victim. Then the accused gets his/her (and, yes, it occasionally goes the other way) day for a hearing or a trial, and–what you keep missing in this case–is that DSU’s internal investigation exonerated the young man. But until it did, the university had just as big a commitment to keeping the young woman safe as it did to protect his rights.
I’m willing to face a nuisance lawsuit (and that’s exactly what it is, as he suffered no damages) any day in order to keep the women on our campus safe when we are following exactly the due process rules we promised to follow.
“This young man’s suit amounts to complaining that he didn’t like the rules he had previously agreed to after they were applied to him. ”
That’s how lawsuits work. You can’t spot every potential injustice before it happens to you.
“He has no damages.”
That is what the court will decide.
Steve, it may be true as you describe that students’ legal rights been slowly eviscerated by a Byzantine series of laws that have created an entirely separate college legal system that is not recognizable by most Americans. And under that system rape has been defined downward. But that is the value of a lawsuit, to try to bring the focus back to traditional American jurisprudence and standards of proof.
The Washington Post pulls together the existing data showing “the number of alleged forcible sex offenses on campus reported to security authorities at colleges and universities or to law enforcement”. Enlightening.
Come on, you know those women are lying and just trying to ruin a guy’s life.
On a serious note, those numbers are enlightening and frightening.
Coda: I seriously reviewed the Dear Colleague letter, and it is devastating.While it does provide certain protections to alleged victims, at least while they are on campus, it goes much too far in relaxing standards of proof.
I am not trying to drag out this thread, therefore I will not respond or add any more comments.
My advice to anyone who runs afoul of a college Title IX board is – don’t participate or cooperate, quit the college immediately, and pursue your options in a real court. Even if you are cleared, the risk of permanent defamation is too high, and it is a hostile environment tilted against the accused. with Federal blessing. Once you are accused, the well is poisoned and the best course is to cut your losses and get out to avoid further damage. A couple of college credits is not worth the risk of being branded a sexual offender. If you are in a top tier college, then you have real monetary damages to pursue.
On campus, every thing you thought you knew about American due process is wrong. Assumptions about your “right to a day in court” are no longer true if you are a college student.
For sexual charges, colleges now are required to have a system of kiddie courts with lower standards that bypass the real courts. The OCR letter itself acknowledges that many campus Title IX officials are not sufficiently trained, and are not proper legal or judicial authorities but instead are repurposed academic staffers. Worst of all, OCR does not require schools to allow either party to have a lawyer.
I suspect that creation of these kiddie courts is actually discouraging victims from taking their complaints to a real court.
Awesome. Advice for the rapists and the assaulters. How very progressive of you.
Do you have a son? You might want to consider homeschooling that guy. For that matter, homeschooling any daughters you might have too. Because you are advocating the kind of hostile environment that sexually harassment policy is meant to try to address. Unless, of course, you think it is OK for your own kids to be subject to harassment.
Cassandra:
Don’t understand the remark? Are you saying Puck’s view of the college judicial system is wrong?
Thanks for clarifying.
Here’s puck, who has read one letter, and who has not read the Montana letter or looked at the policies adopted by our own state universities, and already he’s into his cutsie little “kiddie court” crap.
The reality is that I agree with him (remember, I represent faculty members charged under the Title IX statute, and they have a hell of a lot more to lose than students) about the relaxing of the evidentiary standard.
That said, there is a LOT of good in the Dear Colleagues letter, specifically in the requirement that colleges MUST investigate ALL complaints, and MUST take precautions to safeguard the victims even before the investigations are started.
As for the training issue–the letter is over two years old, and I can tell you that at DSU the people handling these issues are in fact quite well trained.
puck continues to ignore the fact that when you agree to come to a university you agree to abide by its policies (including its resolution policies) as a condition of attendance. And those policies may include things being prohibited that are not necessarily crimes on the outside. (Think of the honor code at West Point or no drinking provisions at religious colleges.)
While admitting that these policies come from a position of backlash and that I do not like the evidentiary standard (I think it needs to be “clear and convincing evidence”), there is an important point being glossed over here. For the past ten years college sexual assaults and sexual misconduct toward women has been increasing, and–increasingly–colleges and universities have been sweeping it under the rug and even protecting the perpetrators. For every Duke lacrosse team debacle there are dozens of young women who have found themselves forced to withdraw from school because nobody would investigate their claims or take protecting them seriously.
I do know that, despite what puck apparently thinks, over the past two to three years as DSU has implemented tougher sexual misconduct rules, the number of reported cases has gone down. This would not be happening if puck’s imagined world of women constantly filing false claims really existed; instead, with relaxed evidence rules we would have seen MORE claims, not fewer. What seems to be happening is that there is actually less to report.
Here’s the challenge for puck: show me a case in Delaware (including the case currently being litigated) where a young man has had his college career falsely ruined due to college “kiddie courts”? Remember, DSU cleared the young man who is suing them, and voluntarily made good his financial damages before he sued. As for his reputation, until his lawsuit ended up in the newspaper, nobody on campus even knew his name because the proceedings were confidential, and kids withdraw or leave campus all the time without anybody thinking twice about it.
It’s sad when the focus on sexual assault is the one where “women lie” is the foundation. Which is where we were for all of history.
@Steve Newton:
What do you think of the Montana letter’s rejection of the reasonable person standard with respect to sexual harassment?
@Davy: fair question. I have always thought (and argued in hearings) that the evidentiary standard is so low that with untrained personnel an accusation is tantamount to a conviction before the defendant ever testifies. I would much prefer “clear and convincing evidence,” and I generally like the “reasonable person” standard, although several attorneys (including those of my union) have raised interesting objections to it (that are so tied to the particulars of individual cases that I can’t figure out right now how to generalize them).
That being said, I have also seen–at DSU–the system work pretty much as it was supposed to work. It has correctly identified people who were guilty, and has correctly acquitted people who were not, while at the same time protecting the safety of the accuser. That said, the process (even IF you are an innocent defendant, possibly ESPECIALLY if you are an innocent defendant) is harsh and grueling.
@Steve Newton:
I think that you misunderstood me. What is DSU’s policy with respect to sexual harassment that is not sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from DSU’s program? In other words, how does DSU deal with sexual harassment that stops short of creating a hostile environment?
Breaking my vow not to post, because Steve may offer some valuable insights:
In the US, the Constitution guarantees the right of the accused to due process under the “beyond a reasonable doubt” standard for criminal charges. Preponderance of evidence is the accepted standard for civil suits.
In fact I understand that until 1970, juvenile criminal cases were heard under the preponderance of evidence standard until the Supreme Court put a stop to that. Do college students now have less rights that 1960s juveniles?
So a question for Steve, since he has direct experience: In these campus cases, ,are the charges stated as criminal charges, or as civil rights violations? For example (let’s call it rape, since every sex allegation becomes “rape” in this thread): Is the charge written up as “John Doe raped Jane Doe,” or is it “John Doe violated Jane doe’s civil rights?
I notice professional journalists are careful not to use the word “guilty” in reporting college sex hearings, choosing the word “responsible for” instead. An Orwellian dodge, but one that keeps their parent corporations from being sued. Bloggers of course are less careful.
Which gets to the heart of my point: Sexual assault is a felony, and it is wrong and un-American to put felonies in the hands of college committees. Any person who puts his fate in the hands of a college committee for a felony is a fool.
Of course women need more protection than they have been getting. But if the police and courts are not doing their jobs, that is who the Feds should go after. Instead, they are using the power of the purse to coerce colleges into taking on the burden of handling FELONIES. Make the police and judiciary do their jobs instead.
The thinking is that relaxing due process will somehow produce more justice. That is a toxic concept. Did the Patriot Act produce more justice or more safety?
She who would give up liberty for security…
I know women are rightly looking for protection and justice, but this is not the way to go.
Since the new Federal redefinitions heavily stressing the potential loss of funds, panicky trustees have been ordering up new handbooks cut-and-pasted from the Federal guidance. I don’t care how many sensitivity Powerpoints the committee members sat through; their loyalty is to the trustees and not to the Constitution. In a real court, in principle the officials are vested in the real legal system with all its protections, not in some Board of Trustees with a financial ax over their heads.
I have now been stuffed with so much straw about saying that women are lying. I don’t think the women are necessarily lying, although the relatively few “false accuser” cases serve to highlight my point. Clearly something happened that upset them – but does it meet the legal definition of sexual assault? That is for a real court to decide, not Dean Wormer and his hirelings.
And yes, I get the point about prior agreement to codes of conduct, etc. But if you want to use “guilty of rape” as a reason to kick somebody out, you need to make damn sure that person was guilty of rape, not “it was more likely than not that he was responsible.” And the only way to find that out is in a court of law.
If on the other hand, you want to kick someone out based on a loosey-goosey committee hearing, fine, but if you then imply they were “guilty of rape,” expect to be held liable.
If colleges want to try students on non-felony charges in their kiddie courts, I say go for it. But when your are charged with a real felony you need to be in a real court with a real lawyer.
And in case you didn’t notice, this is in on my part an respectful intellectual debate, with potential for real illumination, and I hold no brief for the “men’s rights” crowd, in fact I don’t know much about it nor do I care to. And I will continue to refrain from using personal scorn as a debating tactic, despite many provocations, although I am sure my tongue is sharp enough to match any of you.
@puck:
Schools (not students) owe the duty under Title IX:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Schools must create and maintain a non-hostile environment with respect to gender. If a school ignores or otherwise fails to respond adequately to gender discrimination (which includes sexual assault), then the school breaches its duty to the government. The government has tasked schools with policing third parties (students and faculty). Over the past 4 to 5 years, the government has tightened the leash by removing procedural protections for third parties accused of gender discrimination.
The adjudication is not about punishment per se. But if a school determines that gender discrimination has occurred, then the responsible party is often removed from the environment (temporarily or permanently). The school’s goal is not punishment; if anything, the school’s goal is general deterrence and incapacitation (by removal).
In short, the goal is safety, not guilt or punishment. Anyone who wants justice (whether a victim or an accused) must look elsewhere. No one is on trial. That said, the adjudications are modern Star Chambers, and the adjudications have lasting effects on the parties.
In the US, the Constitution guarantees the right of the accused to due process under the “beyond a reasonable doubt” standard for criminal charges. Preponderance of evidence is the accepted standard for civil suits.
This due process is guaranteed from your government. Not from anyplace else. Sexual assault accusations on campus are dealt with as violations of campus rules (Title iX requirements) and/or standards of behavior violations. Multiple people have made this point to you over the course of this thread, and yet you persist in insisting on some perfect justice for the young men accused without ever looking for the same perfect justice for the your women assaulted.
@cassandra_m:
Your argument is flawed. The government requires schools to use the preponderance of the evidence standard. Before OCR’s 2011 letter, many schools used the clear and convincing evidence standard.
Putting aside any problems with the standard, the way that the government legislated the mandate is more troubling. The OCR has skirted the Administrative Procedures Act by rule-making through these letters rather than through the APA’s prescribed process.
Further, your focus on justice is misplaced. There is no justice. The goal is safety. When you invoke justice, whether for the accused or the victim, you underscore Puck’s point.
@cassandra_m:
In addition, OCR mandates and tightly regulates these “campus rules.”
preponderance of the evidence standard ≠ beyond a reasonable doubt standard
puck was talking about the latter. And his point about the standards is about justice for the accused.
The flaws are yours, Mr. CRA Caused the Economy to Crash.
@davy
In other words, how does DSU deal with sexual harassment that stops short of creating a hostile environment?
Assuming that someone is found to have engaged in what I will call “minor” sexual misconduct there are a variety of remedies. I am doing this from memory, so the list is not all inclusive:
1. If the misconduct is believed to have stemmed in whole or in part from cultural or social ignorance (lack of knowledge), then students have been required to attend training courses or counseling in order to stay enrolled.
2. Students with a “one-time” minor incident will sometimes receive warning letters.
3. In cases where 1 or 2 above happens (sometimes both) there may be an adjustment made in the schedule, living arrangements, or team membership to insure that the students in question are separated. (Such issues arise in dorms, classrooms, and on teams/band/chorus.)
4. There have been, I believe (but I’m stretching here), situations in which 1, 2, and/or 3 above pertained, and the student was required to do community service to maintain enrollment. I don’t know if that’s actually happened, but I believe it is possible.
5. For more serious issues, a student may be suspended for a semester rather than being expelled. A student could be denied the ability to take summer courses if an incident occurred in the spring.
I’m sure there are some options I have missed, but does this give you enough of an idea to answer the question?
I just got a creepy vibe here that guys who can’t and don’t get sex are scared to death that if they ever do get sex, that person is going to turn on them and throw them under the bus for personal gain…
Dudes, it’s just sex… There may be female opportunists out there, just like there may be male opportunists. But over a lifetime, most of us nice people never meet them… Assault is assault. Sex is sex… There is a gigantic difference and the fact that you are so anti-women, is probably because you don’t know the difference due to your own lack of experience being with them…..
Dudes. They are just people… You know,… like you
@puck
Way too long for the morning, but I’ll take a stab at part of it. Garrity provisions in labor law (which governs university faculty and staff, and is recognized as having application to students by repeated judicial rulings) say that when an incident occurs that is BOTH a potential violation of university policy AND a potential violation of the law, that the following happens:
1. There is a criminal investigation, conducted as such, and without reference to university policies. At DSU this is initially conducted by the DSU Police, which (like UD Police) is a fully accredited police force with arrest and investigative powers, falling directly under the supervision of the AG’s office. The officers have to convince a prosecutor from the AG’s office that they have enough evidence to be worth prosecuting. If there ends up being a plea bargain in the case, senior university officials would have to approve the deal, but they have nothing to do with the police investigation because ….
2. Garrity provisions say that the university can conduct its own administrative investigation into the incident, not with reference to criminal charges, but with reference to whether or not policies have been violated. This investigation is not governed by criminal law, but by labor law (or labor law and education law), and has different standards of proof, due process, and appeal from a criminal investigation. But there is a further wrinkle …
3. Garrity requires that the investigations NOT be co-mingled. Other than the original police report (if such is what notified the administration of the incident), the DSU Police and the administrators MAY NOT discuss their investigations with each other, share evidence, or engage in any other form of cooperation. They must be completely parallel investigations, and may or may not even involve the same witnesses or evidence.
4. If the individual is found guilty of the criminal charge, the university usually drops the administrative investigation and then proceeds under provisions of the student handbook or employee contract that allow then to take action against somebody convicted of a crime. Usually, however, the administrative investigation is over long before there is a trial date.
5. If the individual is found not guilty of the crime, the university still has to decide independently whether or not the individual violated policy. Being found not guilty of the crime does not equate with not having violated policy.
6. Violations of the Garrity provisions (co-mingling the two investigations) is ample grounds for either a lawsuit or motion for mistrial. Universities (and all other employers) have to be incredibly careful with this because people like university attorneys tend to serve in dual roles.
A university investigation for violation of policy is neither a criminal charge nor a civil rights charge; it is an administrative charge by an employer or school.
As such, the courts have held that the due process standard that applies is (a) what is set out in handbook and/or employee contracts; (b) what is required under the general provisions of labor law (a maze in and of itself); and (c) what may be required by the Feds under auspices like Title IX. In most cases, criminal attorneys should not be entrusted to handle administrative investigations on behalf of defendants because it is a completely different kind of law, for which they are usually ill-prepared. In litigation with UD and DSU that I am aware of, none has been handled by attorneys inside Delaware–all were from Philadelphia or DC. Both UD and DSU faculty unions employ the same Washington DC practice as their attorneys–specialists in labor and education law.
I know that doesn’t get to everything you asked, but it is my best attempt to start.