But why are you again comparing it to the due process protections which are inherent in the criminal justice system? It is a civl rights claim. Are employees/employers who have had discrimination claims filed against them under Title VII guaranteed those exact same due process protections? Jobs and reputations are also at stake.
@Demosthenes49 wrote: “If it’s a state school it has additional, constitutional requirements.”
Like specifically what? From the context it sounded like you were implying that these include federal-courts-style due process, and that’s not actually the case—so what requirements did you mean?
(Also, @Ohiodad51, just as a point of fact, Title IX has been amended over the years.)
@dfbdfb Yes, Title IX has been amended several times. The issue at hand however involves an administrative interpretation of the statutory language. While administrative bodies interpret statutory language all the time (the code of federal regulations is about a jillion pages long) rarely do you see an administrative interpretation that seeks to change existing law, which is the situation here.
And yes, people in civil court or before an administrative tribunal are entitled to due process, assuming there is State Action (some governmental entity which is seeking to deprive an individual of an earned benefit) present. The required due process will vary some based on the potential deprivation (sanction) at issue. Generally, the more serious the potential deprivation, the more due process protection required.
@harvestmoon1 yes, they are, assuming there is a state actor involved.
What about lesser offenses?
Suppose a student punches a professor, and we have witnesses. That’s a crime; it’s assault. But the DA is not going to charge someone for such a penny-ante crime, probably. (Or, if you say that people who punch always get charged, pick some other physical assault; the student goes after the professor physically, but is pulled away by bystanders.) Can the college sanction this guy? If he is a repeat offender, can they throw him out, even though crimes should be handled by the criminal justice system?
Suppose a student grabs another random student’s boob. That’s a crime too; it’s sexual assault. But the DA is not going to prosecute someone for penny-ante boob-grabbing. Can the college sanction this guy? If he is a repeat offender, can they throw him out, even though crimes should be handled by the criminal justice system?
I suspect you are not leaving those persistent assaulters on campus, even though the criminal justice system refuses to act. You’re booting their butts out of your school, because they’re dangerous to other students, and moreover your conduct guidelines forbid punching and boob-grabbing. So why are you keeping the Vanderbilt rapists and the Stanford swimmer at your school? Should the persistent boob-grabber have made sure to rape one of his victims, so he could stay on campus until he got his degree?
The National Association of College and University Attorneys prepared a memo on the law after the DCL was issues in 2011. Here is a short section on 'due process" and the snippet from the Supreme Court’s decision in Goss is relevant:
Moon – you correctly summarize the current state of the law, which is different than what the title ix statute actually says.
The statute prohibits gender discrimination in education. All education, not just college. It says absolutely nothing about sexual assault. Senator Birch Bayh had no idea that the law he sponsored would be applied to sexual assaults that happen to female college students.
By administrative positions, federal funding strings attached, court decisions and clever lawyering, the idea was established that sexual assaults that happened to college students were an educational federal civil rights issue, while sexual assaults that happened to non-students were only a matter of criminal law. My personal opinion is that this extension was unwarranted and also unwise policy.
Unwise policy because the extension, de facto, created a parallel college court system for sexual assault. Maybe that sounds like a good idea, but it hasn’t worked out that way.
The right thing to do, as RAINN and many many others suggest, is to make the college court system secondary and ancillary to the real court system. Colleges can’t get completely out of dealing with sexual assault in their student discipline processes, but they really need to be allowed to take a step back from where DOE OCR pushes them.
The focus and effort should be on improving the real court system to the extent possible. Which would help female college students and also all those females who are not transitorily college students. Not by trying to make college courts a separate menu choice for victims. Especially because there’s little evidence or reason to believe that colleges do this job any better than real courts.
@northwesty but you yourself said that if parents believed the rape statistics they would never send their D’s away to college or at least to certain colleges. So isn’t that exactly the scenario that federal civil rights laws are enacted to guard against? Educational opportunities must be available to all equally. So by that measure the prevalence of sexual assault, which would drive women from campuses, should be included.
@nnorthwesty and as an aside I have no problem whatsoever with your suggestion that effort should be directed toward improving the criminal justice system’s handling of rape cases. But that could take some time.
Moon – I think a few things on this topic (which are related):
- The size of this problem, while serious, is over-stated. Congo-level incidence rates currently yet overall incidence rates have declined by over 50% in the past 20 years. To me, that defies common sense. I don't buy it. The evidence suggests most parents don't either. Since millions of daughters keep getting shipped off to college every fall. 60% of all college students today are female after all.
- The over-stated (imho) data has enabled the federal civil rights/title ix/DOE OCR/campus tribunal policy for college sexual assault that we have today.
- I think that policy extension was legally unwarranted.
- I think that policy has been proven ineffective and unsuccessful.
But that’s just me.
Yet apparently the good reasons aren’t always those that have been articulated in this and many other threads. I must have read hundreds of posts saying that women don’t think the police with believe them and because of that they don’t report. I meant to bring this up, though, several days ago when someone linked a comprehensive survey and people started quoting some of the data from it. In it, ~80% IIRC of women said they felt that police would believe them if they filed a report.
Has there been a comprehensive study about the reasons women don’t report alleged rapes? I remember reading that one of the biggest reasons is because women don’t believe the incident is actually a rape. I wonder what the reporting rates are for assaults where women know they were raped versus where women are not sure that is what happened to them.
@TV4casster aren’t all rapes “alleged rapes” when reported?
@northwesty what I was trying to say was that you acknowledge that high incidence of campus rapes would make parents reluctant to send their D’s away to college. That creates the vey environment that civil rights laws were meant to address - insuring equal opportunity for education. Yet at the same time you say sexual assault should not be covered by these laws and that the colleges should not be proactive in getting some students off campus .
With your other points – fair enough – they are your opinions and you are entitled to them. I personally think the college tribunal system is a valuable option and we should focus on “tweaking” and improving the system to address concerns on both sides.
If my son ever had the misfortune of becoming involved in such a claim, I would pray that the young woman filed with the college and did not go to the police. I can work with a 2 year suspension or even an expulsion. I can’t work with a permanent record of a felony or god forbid jail time.
“@northwesty what I was trying to say was that you acknowledge that high incidence of campus rapes would make parents reluctant to send their D’s away to college. That creates the vey environment that civil rights laws were meant to address - insuring equal opportunity for education. Yet at the same time you say sexual assault should not be covered by these laws and that the colleges should not be proactive in getting some students off campus.”
Moon – I get your argument. Very logical. But I think my argument is better since the data is on my side I think.
Colleges are basically being flooded with female students. 60% of enrollment and continuing to grow. Parents seemingly have few worries about sending off another couple of million female freshman each fall. So there’s only two possibilities.
First, (as I contend) the problem is over-hyped and has resulted in a federal policy over-reach that’s not needed. Or second, the current policies are working extremely well to assure equal access for female students.
It wouldn’t be logically possible to have (i) Congo-level rape incidence, (ii) coupled with mostly happy parents sending increasing millions of daughters and dollars to college campuses and (iii) also completely ineffective college systems that demand hair-on-fire reform. Just doesn’t add up.
There’s really no evidence of any denial of educational opportunities for women at college on any wide scale basis. In fact, women rule on campus these days. To an extent previously not experienced in the U.S. Which (in my opinion) explains how this issue got so over-hyped in the first place…
Some actual good data would really help determine if I’m full of it or not. You can’t prove I’m wrong but I can’t prove I’m right (although I have no doubt!).
I wonder how many parents think like you and how many would say that they would prefer the opposite. I say that because then your son would not be at risk of getting thrown out and yet would in all likelihood not go to jail since the conviction rates for accused men who knew their victim is quite low (5% maybe???, IIRC)
Cite? I’ve clicked the links here, and not seen any such thing. What survey are you talking about?
It was either this thread or the “Men fight back thread”. I will try to find it. It was 2000 women (I think) from multiple colleges
@Northwesty, where are you getting the Congo rape numbers?
@“Cardinal Fang” I found it. It was in this thread.
http://www.esquire.com/lifestyle/sex/a33555/esquire-cosmopolitan-sex-survey/
Also interesting that only 60+% of men believe that police would take them seriously.
Harvest I don’t trust colleges; their current interests lie in “doing something/anything” as fast as they can and I would NOT want one of my sons ever entangled in such a poor process. I would want the allegation investigated to the fullest extent possible with phone records, subpena power, documented interviews and I would want all that transparent and available to our attorney. I would also ask the attorney to attempt to get an injunction to stop the college from doing anything knee-jerk unless formal charges occurred and one of mine were arrested. Too much crap happens on campuses between the advocacy groups, the campus newspapers and the administrative fear. I’m fortunate since I only have one left in college and he’s a junior. I highly doubt this would happen, but I’ve experienced false accusation vicariously as I’ve mentioned before so I KNOW that some women lie and I’m hugely in favor of presumption of innocence as a cornerstone of our judicial system and I’m in favor of ethical businesses and organizations. I would have no qualms about pushing a young women making those allegations to take it up with the police if she’s serious, within legal boundaries of course 
and counsel my kids to risk it. If they are guilty of a felony they need rehabilitation.
I’d also hire a lawyer if it were a plagiarism charge, just to ensure that rights were protected and the process was fair and for counsel. We live in a complex world these days and if an entity or person can ruin your life, it’s smart to not take it sitting on your behind or at face value.
I think this is northwesty’s source for the Congo numbers: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3093289/
Lots of folks have made the Congo = campus comparison.
Here’s an example.
http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html