A New Study on campus rape and the one in five number

Parents Forum
1801

@Demosthenes49 – the press reports on this case indicate to me that this guy was doing a lot more than launching off a few profanity laden tweets. The reporting is sketchy as to his specific actions, but when reading the accounts in their totality we do know that in addition to the tweets he was charged with among other things criminal restraint and battery. He also had an Order of Protection from Abuse entered against him which I am thinking had to be legally supported --the court must have believed he posed some risk to his ex. The ex promptly made the university aware of the history and the criminal court proceedings.

I think we are focusing on the tweets when the university has already made it clear that they did not expel him for “speech” but rather for “conduct”:

But I am thinking you will say that it does not matter in either event since both the “conduct” and “speech” were off campus. So then we have to look elsewhere for authority for the university’s actions. We really don’t have to look that far for support for the university’s actions which can be found in their Code of Student Conduct but more importantly in the Dear Colleague Letter coming directly from the U.S. Department of Education which states in part:

I don’t know how the District Court Judge dealt with this proviso but an article in “Inside Higher Ed” indicated that he focused on the university’s Code of Conduct. The article also states that the university changed it’s conduct code in 2011 to address the provisions of the DCL. My best guess is that they did not do so sufficiently.

1802

@northwesty wrote: “8. Female on male sexual assault is really not something we need to worry about. Guys certainly don’t worry about it. Come on.”

So because a certain subset (may even be a majority, but we don’t really know) of men don’t worry about it, we should ignore a problem?? Yeah, that’s healthy.

1803

@HarvestMoon1: I haven’t seen all the press reports in this case. So far as I am aware, and I am certainly open to being corrected, the suit the accused filed alleged only the twitter incident as the predicate for KU’s enforcement, and KU did not disagree.

The criminal restraint and battery charges stem from an earlier incident. Those charges resulted in KU (and the court) issuing a “no contact” order. They were not violations of the order, they were its cause. They were therefore not a viable basis for KU to claim the accused violated the “no contact” order. KU’s basis for that claim was the tweets. KU can label that however it likes, but under the law tweeting is unquestionably speech.

Also, the restrictions on University regulations of speech are constitutional restrictions. The Dear Colleague letter is therefore completely worthless as a basis for university action. The constitution trumps agency guidance.

My understanding is that the district court found that KU did not adhere to its own procedures in the enforcement of this case, not that KU’s procedures did not adhere to DOE guidance.

1804

Yeasin sued the university for limiting his First Amendment rights and for incorrectly interpreting the Code of Student Rights and Responsibilities. I “think” the question relative to the conduct code was whether or not it reached off campus activity. The District Court, according to press reports, ignored the First Amendment claim and focused on the Code of Student Conduct.

Yes, agree that the criminal restraint and battery charges were part of what formed the basis of the court’s “no contact” order and I am going to bet there was more than just those 2 things. My point in referencing the protective orders and the tweets together was that from the prospective of the university, they had an escalating situation on their hands. They looked to Title IX and the DCL which directly address legal obligations under these circumstances.

The “Dear Colleague Letter” has been described as a federal mandate and the OCR has been vigilant with enforcement. As far as the DCL being completely worthless as a basis for university action – well I guess we could argue that --but how is that going to play out with the climate that currently exists? Is it likely that a higher court would rule today or in the near future that the DCL of April 4, 2011 is unconstitutional?

And if I had to I could craft a “decent” argument that those provisions of the DCL do pass constitutional muster!

1805

HarvestMoon1 & Demosthenes49 - As a non-lawyer, maybe I can still chime in about the interaction between DCL and the Code of Conduct.

DCL interprets Title IX, which governs whether or not a college receive federal funds. In fact, the only penalty that OCR can impose is the complete cutoff of federal funds. The OCR has clearly said they will examine off-campus conduct in determining whether or not they find a college in violation of Title IX. Since this only involves federal funding, I’m pretty sure this interpretive guidance is constitutional/legal.

However, the OCR cannot directly order a change in a college’s code of conduct and cannot give the college any legal authority that they don’t already have; i.e. they can give the responsibility for monitoring off-campus behavior but not the power to do so. Whether a public college can grant itself certain powers to monitor off-campus behavior in its code of conduct is a question for the courts. This would be subject to challenge on constitutional, statutory, and legal grounds.

It is theoretically possible that a public college could find itself in a “no-win” situation where they are held responsible by the OCR for off-campus conduct but the courts won’t allow them to regulate it. I don’t think this would cause the federal courts to invalidate the OCR’s regulations. Since the federal government can pretty much decide how it wants to spend “its” money, this would seem to fall under the “too bad, so sad, sucks to be you” clause of the constitution :slight_smile:

FYI - a total loss of federal funding is pretty much a nuclear weapon that no college (except for a few like Hillsdale) will take any risk with. It’s a blow that even Harvard, with $35 Billion in endowment, could not withstand. They would have to almost double their endowment to make up for the loss in funding, and there are several major non-monetary problems as well. All that would be left would be a bunch of empty buildings or possibly a small liberal arts college (though Harvard could probably restart somewhere in Asia !)

Added - Demosthenes49, for the reasons I wrote above I disagree with your analysis in post #1805 below of why ED’s regulations could be invalidated on constitutional grounds such as freedom of speech etc. The student is not a party to Title IX - ED is just putting requirements on the colleges to receive federal funding. DCL does not specify any penalties like expulsion etc. It basically (not entirely) does not specify any requirements on students. In that respect, it was written carefully to avoid falling afoul of the concerns you raise below.

Added2 - Demosthenes49. Thanks for your response. Sounds tricky. I’ll be curious what you guys figure out. To be honest, my gut instinct is that ED can remove federal funding, though obviously they would never do it on the grounds that a college complied with a court order.

1806

@Harvestmoon1: I have reviewed KU’s brief in the court of appeal and I am now confident that the enforcement was predicated solely on the tweets. However, Kansas does not have electronic records (they may be somewhere on the internet but my completely cursory search did not reveal them) so I can’t see whether the complaint alleged violations of the policy. A copy of the trial court decision would also work for that, which I also haven’t found.

The university in its brief stated that it issued the “no contact” order because:

“To review, a student commits an offense against a person when he “threatens the physical health, welfare, or safety of another person… or willfully, maliciously and repeatedly… attempts to make unwanted contact, including but not limited to physical or electronic contact.” [R. 3:497].Yeasin’s conduct, which included unwelcome comments made in person by phone, text message and other electronic medium and was severe, pervasive and objectively offensive, interfering with Ms. W’s sense of personal wellbeing, and sense of safety and security at KU, also clearly violated the University’s sexual harassment policy.”

Navid YEASIN, Petitioner - Appellee/Cross Appellant, v. THE UNIVERSITY OF KANSAS, Respondent - Appellant/Cross Appellee., 2015 WL 2258880 (Kan.App.), 14.

In the context of the brief, that sounds to me like their basis for decision was as I stated: the previous criminal charges and the communication surrounding them. This is why I think that if the University had jurisdiction its order was probably constitutionally permissible. I am genuinely unconvinced that it had jurisdiction. Assuming they had jurisdiction, the University was entitled to enter its order. We don’t disagree on that point. The question is whether KU violated the law in its enforcement of the order.

Regarding the DCL, I will try not to bore you with the intricacies of administrative law, but the basics work like this: The federal government has pretty broad authority on putting conditions on its money. They can use it to do things they wouldn’t otherwise be allowed to do. However, they definitely cannot use those conditions to bring about something contrary to law. If it’s a law passed by Congress then Congress can repeal it. If it’s a constitutional requirement, however, then the federal government can’t proceed (unless they pass an amendment).

The DOE is in charge of who gets federal funding for education. The DCL says, if you want to get federal funding, you have to do X. As the agency in charge of funding, they have pretty broad authority to act within the same substantive limits as the federal government (procedurally they have to do a LOT more). That means that the same constitutional limits that bar the federal government also bar the agency. So, in our case, if the First Amendment would prevent the executive from acting this way, it also prevents the DOE from acting this way. The DOE can write as many letters as it wants but if they violate the constitution then they’re worth less than the paper they’re printed on.

When you talk about whether things violate the constitution, you have to look at two things. First, you look at the thing on its own and see if it violates. This happens rarely, though it does happen. Next, you have to look at it in particular instances (these are called “as applied” challenges). I’m not saying that the DCL is unconstitutional on its face (it might be for due process reasons but I’m not prepared to take a position on it). However, if it mandates expulsion here, then I do think it is unconstitutional as applied.

@al2simon: Whether OCR could remove federal funds is a really tricky issue. I would have to do a lot more research before I could stake out a position on it. However, I am fairly confident OCR could not withhold federal funds on the basis that KU complied with a court order. That would be a pretty stark federalism problem as well as a violation of the Administrative Procedures Act.

1807

@Demonsthenes – I am not following you – there was no disagreement that the KU’s decision was based on the criminal charges and the communication surrounding them. I suspected there might have been more than the one incident in the car – does the brief give more facts about the relationship than what was reported in the press? Can you scan and post?

I am also not clear on what your position is with regard to KU’s “jurisdiction.” My understanding from the Higher Ed article was that they relied on the "third prong " of their student code, Title IX and guidance from the U.S. Department of Education’s DCL. Are you postulating that their reliance on this letter to regulate off campus activity (which is what I think you mean by “jurisdiction”?) will not stand up on review?

1808

@HarvestMoon1, the dear colleague letter doesn’t grant jurisdiction to anyone. What @Demosthenes49 is trying to explain is that the DCL is just a written statement by an agency tasked with enforcing part of Federal Law, in this case Tittle IX, as to what that law means. But it has no independent legal effect. As I understand what I have read on this, UK is saying that Title IX gives it the authority (jurisdiction) and indeed mandates, that they protect their students from harassing behavior, and that these tweets qualified as such. That leads to two questions. First, is Title IX that broad? If so, then the college is empowered to act, if not, then the college did not have the power to act and the case ends. The second question follows only if the first question is answered in the affirmative, that Title IX is indeed that broad. Then the question becomes whether Title IX is unconstitutional in application, because it would cause a sanction (dismissal) for the exercise of a protected right (speech). Does that make more sense?

1809

Right, the DCL informs the colleges and universities about how OCR evaluates whether they are complying with their legal obligations. As they say themselves, it is a “significant guidance” document and I would say it does have legal significance to the recipients of federal funds. The very existence of the college tribunal system attests to the power of Title IX and the DCL.

Posters on this thread had constitutional issues “every which way” with the university regulating these tweets and conduct saying reasonable minds can’t disagree about the application of the law in this case given the dictates of the First Amendment. And perhaps there are First Amendment issues. I am just pointing out that there is more to consider here given the mandates in the DCL. They can’t just ignore the directives of the DOE especially with the threat of losing federal funds hanging over their heads. And that perhaps the idea that another poster advanced that in the “real” world thing are not always so cut and dry is not so far fetched of an idea.

I have a hard time envisioning Title IX/DCL being struck down at unconstitutional given the climate today on college campuses. Just my two tuppence.

1810

It’s also pretty clear that the federal government can totally pull funding away from an institution without any regard for first amendment implications, as long as they do it without singling out one institution (or a very few). That’s the way states were pressed to adopt 21 as the minimum age for purchasing alcoholic beverages, and adopting 55 as the speed limit back in the day, for example.

1811

I’m not a lawyer but that is how I would interpret the situation with Title IX.

Yes they can…they choose to conform to federal interests of the moment or not choose to. Growing up with Hillsdale in the news in the 70s informed my thinking about how much credence we want to give to federal government interference which can wax and wane depending on who is in power.

I’m not willing to sacrifice bodies for the incremental whims of the current government. Our constitution has done a perfectly good job of adapting for hundreds of years. Hoping we’re not straying into the cafe…

1812

@Ohiodad51, I don’t even see how Title IX is relevant to the free speech claim. If Navid has a free speech right to tweet what he tweeted, then Title IX can’t take it away from him. And if he doesn’t have the right, because his tweet was harassment, then even without Title IX the college would have the right to discipline him if they saw fit.

1813

Practically speaking I am thinking that there really is not a choice. Has even one college or university ignored the DCL? Can any college or university afford to lose their federal funding?

1814

@HarvestMoon1: I am not really sure how to go about posting the brief. If you know how, I’m happy to do so. It doesn’t have any more information in terms of facts though. In fact, it has less than what I’d otherwise expect. That’s usually the sign of a thin case.

As to jurisdiction, I think there is a strong chance it will not stand up on review. Universities aren’t part of the judiciary or law enforcement. Their authority extends only so far as the law allows. In this case, since we’re dealing with a speech issue, the relevant law is First Amendment law. That law sharply curtails university power to only speech that occurs on campus (or would foreseeably enter campus and cause substantial disruption). Note that I am only talking about the jurisdiction to bring the enforcement action, not to enter the initial order. I think that the initial order is probably ok.

As for Title IX, its constitutionality is not at issue in this case. The court can find that the university acted unconstitutionally without ever referencing Title IX.

@dfbdfb: I am not entirely sure that it is clear that the federal government can just pull federal funding.

1815

Some of you are missing the forest for the trees. You need to go back and read the post about when statutes are unconstitutional in application. Courts will generally interpret a statute so that it operates in accordance with the constitution. In an extraordinary oversimplification, that means it is likely that a court would not interpret Title IX in such a way as to require colleges to restrict speech. If that is so, then it is likely that a court will find that the college did not have jurisdiction, flowing from Title IX, to act here.

And @HarvestMoon1, the DCL or Title IX are not in competition with the constitution. They are subordinate to it. No Court is going to struggle with the question of whether to enforce a constitutional mandate or the OCR’s interpretation of Title IX, regardless of the current political climate. Does the way colleges have responded to the Dear Colleague letter pose some complex questions that Courts will have to deal with, yes. But this is not one of them.

1816

Yes, it is my belief that Titlle IX guidance is subordinate but in some ways I am not always confidant of the courts. Part of me is always leery of current temperature.

1817

More thoughts from a non-lawyer -

I think it’s worth taking a realist look at this in addition to analyzing the legal theory. I think this is more nuanced than people think. As of today, OCR basically has only one sanction that they can use – 100% withdrawal of federal funding. There is no intermediate sanction (with two exceptions that I’ll get to), not even partial withdrawal of funding. Above, I compared this to a nuclear weapon. This analogy is apt because although a nuclear weapon can destroy a target, the fallout can also cripple the person who launched it.

So you have to ask yourself – is OCR actually going to force a state university to close down because the university tried to penalize some jerk for sending some tweets and a court said they couldn’t because of the 1st amendment, etc? My guess is - definitely not. Admittedly this is completely unexplored territory because the Title IX sanction has never ever been levied against a university because it’s so severe. But forcing a university to shut down over some tweets isn’t exactly going to be popular with anyone – students, parents, alumni, voters in that state, and home state senators. And the university has the option of suing in Federal court to block the OCR’s administrative finding that federal funds should be withdrawn. My guess is we never get within a million miles of this scenario.

Going back to the nuclear weapon analogy, neither the OCR nor the university wants one to be used. Practically speaking, the university is going to be highly motivated to try to make the OCR happy and thread the needle between stopping these off-campus tweets and the 1st amendment. But like several other posters here, I think that courts will not be reluctant to toss out provisions of a conduct code that violate the 1st amendment, though as we see they are first going to look for narrower grounds to toss them out. But either there is a way to penalize the tweeter for tweeting while complying with the 1st amendment or there isn’t. If there is a way to comply with the 1st amendment, then any other hurdles, such as contract law or lack of a grant of authority from the state, will not be obstacles for long. So to me, this is entirely a 1st amendment question at the end of the day. The OCR will not withdraw federal funds if there’s a 1st amendment problem, although I still maintain they would be within their rights to do so.

The exceptions to this are the two other remedies that OCR has. One is just the embarrassment for an institution of being under Title IX investigation (of course, at this point it seems like everyone is under Title IX investigation, so I’m not sure how effective this is anymore). The other is they could ask the DOJ to sue the college to do … something. But again, either there is a way for a college to sanction off-campus tweeting in a way that complies with the 1st amendment or there isn’t. And if there simply isn’t a way, then neither the embarrassment nor a DOJ lawsuit can force the college to do the impossible / unconstitutional.

P.S. There is a comparison between sending a few obnoxious tweets and Ms. Sulkowitz’s de facto national campaign to hound a fellow student (who was never judged responsible for anything) out of school. Admittedly, this comparison is imperfect, but I personally think the inconsistencies in people’s thinking here are beyond irony.

1818

Did anyone say that Columbia couldn’t sanction Sulkowicz?

1819

The Sulkowicz case is a different side of the same coin. How broad is the duty imposed by Title IX on colleges to protect a student against harassment?

1820

Isn’t Nungesser suing under Title IX, saying Columbia had a duty to protect him from harassment?