“Option B, and the school chooses to continue adjudicating rape cases (except with clear and convincing instead of preponderance).”
Fang – we agree. There’s much more useful things colleges can/should be doing than implementing Dear Colleague. Those things could easily be paid for with the savings that comes from revoking Dear Colleague.
It’s untrue that almost no one has argued for this. Numerous people in this thread and the other threads have argued that colleges should adjudicating abandon sexual assault cases entirely-- that expulsion from college for rape is such a bad result that colleges should simply not do it, and or that they should wait for a criminal conviction. Further, people have argued that colleges shouldn’t suspend students for sexual assault: rather, if they want to get suspected sexual assaulters off campus, they should get a restraining order from a court. Here’s momrath with this view, yesterday night:
And she is far from the only one expressing this view.
If your point is merely that the OCR standard of “preponderance of the evidence” is a bad one and that some colleges are bollixing sexual assault cases, then you won’t get much argument. Nobody’s saying there is no room for improvement.
I’d replace “preponderance” with “clear and convincing” if it was my choice. Or maybe I’d replace it with “clear and convincing” just for expulsion, a change that colleges are free to make right now.
The OCR letter allows colleges to permit students to have lawyers: it merely says that if one side has a lawyer, the other side must also be allowed to have a lawyer.
And a TRO won’t get suspected assaulters off campus in those egregious situations. In most cases it just keeps the alleged assailant from coming within a certain distance of his accuser. Often that can be as little as 50 or 100 feet.
@northwesty, what is your objection to Dear Colleague other than “preponderance”? The other provisions I know about are that it mandates prompt resolution of cases, and that it requires both sides to be allowed the same access to lawyers, neither of which seems objectionable.
CF - In my response to @dfbdfb, I’m drawing a distinction between the position that colleges should abandon adjudicating sexual assault cases and the position that colleges should “operate under criminal-court rules.” In my mind, they are pretty different positions. I interpreted his response as knocking down this latter straw-man, but almost no one in these threads has argued for this second position, at least that I recall.
You are right that many in these threads have argued that colleges shouldn’t adjudicate sexual assault cases at all, but I am not one of them.
It’s my understanding that private colleges are (de facto) prohibited from raising the standard to “clear and convincing” for their sexual-assault adjudication proceedings, whether or not they involve expulsion. That was one of the main consequences of DCL. Do you know different?
That is true - I believe this is a reform that could be instituted by private colleges right now, so it’s the colleges that are to blame, not the OCR. But it’s still wrong in my opinion, regardless of who is to blame, and I would have liked the OCR to have required private colleges to allow lawyers as they were insisting they lower the proof standard to preponderance - they are the Office of Civil Rights, after all.
I could be wrong; I thought that they would be able to require “clear and convincing” to impose expulsion, while imposing lesser punishments with “preponderance.” IIRC, they’re not required to impose expulsion at all, ever. Stanford is (someone said upthread) imposing a stronger standard for expulsion, unanimity of three judges. (Stronger than a single judge saying “preponderance,” I mean.)
CF - DCL quite clearly states “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard … Grievance procedures that use [clear and convincing] are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.”
DCL makes no mention of allowing different standards of proof for different sanctions. It would be a big loophole if they did - you could use “preponderance” to determine whether a student is guilty, and then require “clear and convincing” to impose any sanction, even a wrist-slap. As far as I know, no private college’s post-DCL procedures have anything but a preponderance standard.
Stanford’s new proposed procedures are interesting. They are recommending expulsion as the default punishment for attempted or completed rape (the term they use is sexual assault but the definition is more like what most people would call rape). Like you said, they also require unanimity of three reviewers (not judges) to impose expulsion. Personally, I quite like the direction both proposals are heading, though I still think more reform is needed.
However, one thing @dstark said upthread is not correct - Stanford is not proposing to allow attorneys to represent either party. They are going to continue to allow students to obtain the advice of an attorney during the process but not to represent them or speak on their behalf at any stage of the process (pg 9 of task force report). They are also contemplating several proposals to provide attorneys to students who can’t afford one.
Both Harvard and Princeton were subjected to an investigation by the OCR for failure to comply with the mandate that the schools impose a preponderance of the evidence standard. I believe the charge was that the schools failed to “promptly and equitably” handle complaints. The investigations ended with the two schools agreeing to drop the clear and convincing standard of proof. Obviously, this decision was not popular with the Harvard Law School faculty.
In addition, there are any number of examples of colleges being investigated by the OCR for “non compliance” with Title IX only to have the investigations end when the college reaches a desired result. One case that got a lot of play here involved alleged hazing in the OSU marching band. Allegations of hazing surfaced, an investigation was launched and it only ended with the eventual firing of the band director. That is the real issue. It is not necessarily the statement of policy that is the problem, it is how muscular the OCR is in trying to force compliance with the policy
I don’t think it is a stretch to say that if schools like Harvard (largest endowment worldwide) and Princeton (largest per student endowment world wide) face financial issues with an OCR investigation that a lot of other schools are going to work hard to stay on OCR’s good side.
And speaking as one who doesn’t think Universities should investigate serious criminal conduct, I will say I have less of an issue with such an investigation (that could lead to some type of serious sanction) if the clear and convincing standard is used, the accused is given adequate notice, the right to cross examine and call witnesses, etc. In my mind, the current problem is that colleges are trying to deal with very serious problems quickly rather than completely, with a system designed to address (relatively) minor conduct. That of course leaves out all of the problems inherent in a college trying to conduct an investigation while the police are trying to do their jobs
@alsimon2, I don’t remember saying attorneys could represent students. Where did I say this?
I am looking at posts 1527 and 1529.
I used the word used. We have a linguist in this thread. 
Or did I misspeak elsewhere?
@dstark - I was referring your post # 1527 -
The reasons I interpreted your post as saying Stanford was thinking about allowing attorneys to represent students were -
But obviously I misunderstood you since that is apparently not what you meant. I guess by “more and more” you meant there might be more attorneys at more hearings, not that they would be used more per each hearing. In any case, I just wanted to post what Stanford’s proposed policy actually is regarding attorneys.
P.S. I’m not getting notifications when you reference me - my screen name is al2simon, not alsimon2 .
@al2simon, ok. I see you were talking about lawyers representing students.
I wasn’t. Pages 9 and 12 of the report. I think more students using lawyers for advice and counsel is a step up in adding protections for students which is why I responded the way I responded.
Since I was quoted in post #1541, I’d like to include the other half of the point I was trying to make.
Yes, my first choice would be that colleges turn felony rape/sexual assault accusations over to the police/courts, but realistically I accept that that’s not likely to happen. For me, the 50 lawsuits filed in recent years by men who claim to have been unfairly treated by their colleges’ Title IX apparatus are reason enough to see some serious reform now. As I wrote separately, I think the impact of each of these lawsuits taken singly is minimal. The impact will be felt in the aggregate: either policies and procedures will change or they won’t. Let’s see what happens in the other 30+ cases that are currently working their way through the courts.
This is what I wrote:
Absolutely with the lawyers. Some parents might be able to turn a blind eye to $30-50,000+ for a freshman year if they can get the kid right into another comparable college, but what the heck when it’s a senior with a $20000+ investment and something that potentially is being dredged up from several years earlier…over my dead body there wouldn’t be lawyers involved. I give lip service to the “adult status” when it comes to tuition and cost spent. Even the feds say the parents have responsibility. So my attitude is don’t be kicking out kids with a blemish big enough to render the investment worth zilch and useless without the courts being involved… not without a whole lotta investigation, evidence and due process. Universities have been sitting in the cat bird seat for too long. If they are going to take the OCR lying down then they better be prepared for the parents to fight the battle.
Which—perhaps to the surprise of some, given my previous posts on this thread—I don’t think would be a bad thing.
After all, that’s how people finally got OCR to start taking sexual assault victims’ claims seriously. The claims of those falsely accused should, I would say, be taken equally seriously. It’s only by fighting the system, it seems, that we get that sort of progress.
30 cases compared to 12600 rapes?
I understand for anybody involved in these cases it is traumatic. I know this. Overall on the macro level…not that big a deal…
I am involved in a bankruptcy case. There are a lot of people involved. I think there are 100 people involved. It’s a $100 million case.
One case… 100 people… $100 million…
Luckily, I am one of the smallest creditors. This civil case has been going on for a long time. I think 6 years. I might receive pennies on the dollar back after a couple of more years. The lawyers are going to get more than the creditors from what is left of the estate.
I think there should have been criminal charges brought in this case. The guy was running a ponzi scheme. I talked to a lawyer in the civil case. The lawyer agrees with me. But the accused is older and the creditors don’t get any money back if there is a criminal trial. So much for criminal courts…
This is just one case…there are so many cases in this country…
I am just saying the above because if there are 30 civil cases and the defendents are going to win 10 cases…
I think we can improve how we handle these sexual assault cases…but we don’t have to throw the baby out with the bath water.
When I read the schools should not be involved in these sexual assault cases, I just roll my eyes. Sorry. That puts victims in a worse situation than before the Dear Colleague Letter.
That tells me there is a political agenda going on or people care more about, I don’t know, 100 guys a year rather than thousands of women a year.
When I read the sources like " a voice for males," that just confirms my thinking.
I agree with this.
When I read @momrath’s post # 1551 it occurred to me that we are not all that divided on what could work better. I would have no problem at all with the following being incorporated into the college tribunal process:
If the goal is to arrive at the truth then by all means we should have as many tools as possible to dig deeper into the allegations. I do think though that the retention of attorneys to represent each party should be reserved for the more serious claims of sexual assault where suspension or expulsion are possible penalties.
@cardinalfang, I believe that the OCR’s issue with Harvard concerned Harvard Law School’s use of clear-and-convincing rather preponderance-of-evidence. Under the settlement, HLS agreed to use preponderance-of-evidence like the rest of the university.
http://www2.ed.gov/documents/press-releases/harvard-law-agreement.pdf
@HarvestMoon, Agree, some simple changes would go a long way to making the adjudication process fairer. The introduction of lawyers, used to their full capacity to investigate and cross examine, would be a major step in making the proceedings more “court-like” which I think some victim advocates may object to on the grounds that alleged victims shouldn’t have to endure focused questioning.
I apologize for re-posting from the other thread, but I think this is a fascinating example of what actually goes on in a college sexual assault hearing. (The accuseds’ future life was hanging in the balance and they were serving cookies!)
To me the most significant problem was that the accused was in no way equipped to ask questions and follow up on answers in his own behalf. Just reading it made me want to shout: Ask this! Ask that! They missed so much. And while the accuser’s sexual history was not an allowable question topic, but the accused’s was allowed. Inconsistencies and illogical statements were routinely overlooked.
https://kcjohnson.files.■■■■■■■■■■■■■/2013/08/amherst-transcript.pdf
@dstark, the number of sexual assaults and the number of recent lawsuits against the colleges is a false equivalency. (By the way it’s abut 50 cases filed in 2014 and 2015 against 40+ colleges.) I don’t think the significance of these lawsuits is so much that they may reverse the colleges’ decisions (though that’s certainly important to the plaintiff) but that they may affect change in the OCR’s rules on sexual assault adjudication.
No one’s arguing that sexual assault allegations should be not investigated and adjudicated (though there is some argument about by whom). But in trying to solve one problem (sexual assault on campus) the OCR has coerced the colleges into creating another problem (unfair and incompetent procedures for investigating and adjudicating the claims).
The victims’ plights have been widely publicized in the media and by the government. Aside from some over the top blatantly unsubstantiated opinions, this is a good thing. Hopefully the newer surveys will work out the kinks in the questioning so that we can all use the same vocabulary to understand the scope of the issue.
I think groups and sites like Minding the Campus and A Voice for Male Students serve a purpose in educating parents (and citizens) that there are significant constitutional flaws in the college adjudication process. Skip the editorials if you like, but read the complaints, the decisions and the transcripts. These are real eye-openers for parents (like me pre-Jackie) who have no idea that our college age children could be subjected to such capricious, inconsistent and unfair treatment by the very colleges whom we were paying $50,000 a year to educate our kids.
I agree wholeheartedly that parental (and citizen) involvement can make a difference in pushing back against the Dear Colleague mandates which treat the accuseds unfairly. It’s interesting that in this recent lawsuit against Boston College (which is itself an extreme example of college negligence) the plaintiffs are not only the student but also his parents.
http://www.avoiceformalestudents.com/wp-content/uploads/2015/03/boston-college-john-doe-mary-doe-james-doe-due-process-sexual-assault-2015-3-11.pdf
@momrath, I like straight talk.
These sites are biased. There is some good info from these sites but the sites are biased. Let’s not play games.
It would really help if we can read the transcripts of the cases too so we can see what the complaints are based on. It wouldhelp if we could read the original accuser’s side of the case.
It is just a fact, if schools are taken out of the equation, and the victims have to use the court system without a choice, the victims are in worse shape than before the Dear Colleague letter. This is a fact. If a person advocates for something, that person should understand the actual result of the policy he or she advocates.
There isn’t a false equivalency. The victims are effected by how cases are handled.
So those who think we should allow lawyers if expulsion is a possible punishment (I agree), do you think we should also allow lawyers if the worst possible punishment is suspension? What about allowing lawyers if the possible suspension would be longer than a year, but not otherwise?
I can see the value of lawyers, but I can also see that in less serious cases, lawyers will make the proceedings longer and more expensive.