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

Parents Forum
1821

@“Cardinal Fang”: Yes, among other things. He’s also suing under some New York laws obligating the university to protect him from harassment, civil rights laws protecting him from discrimination, breach of contract, breach of the covenant of good faith (another contract cause of action), deceptive trade practices (I don’t really see this one), reliance (that he believed what Columbia promised), intentional infliction of emotional distress (doubt this one too because it’s hard to show intentionality), and negligence.

@al2simon: If OCR pulled federal funds because a state court ordered KU to comply with the first amendment, that would in effect be an attempt to coerce KU to violate the constitution. That would be a clear constitutional violation of the amendment, federalism, and separation of powers. It would be a constitutional crisis.

1822

No worries – I am not sure that CC supports file sharing. I will have a copy of the brief next week.

I think this is a very good and brief summary of the constitutional case law surrounding the issues we are discussing:

http://jolt.law.harvard.edu/digest/internet/student-free-speech-rights-on-the-internet-summary-of-the-recent-case-law

1823

This is a recognized problem with a lot of regulations—but unfortunately, in many cases it would take an act of Congress to change it, and Congress hasn’t been the most functional body of late, so…

1824

@Demosthenes49 - In the real world, I think everyone believes loss of Federal funding would threaten the existence of the university. I think we’d both agree the OCR wouldn’t be dumb enough to explicitly link the loss of federal funds to KU’s desire to comply with the 1st amendment.

But wouldn’t the OCR’s position be that they aren’t coercing anyone, all they are doing is cutting off supplemental funding. Not our fault the university is having budget problems without additional federal funds they no longer qualify for. They should cut programs, raise tuition, get more money from the state, … what they do to balance their budget is none of our concern. Most importantly, we’re not insisting on a specific remedy of expelling students for tweeting harassing tweets … there are a whole bunch of possible ways for the college to fix a hostile climate. We’re just monitoring the overall degree to which there is a gender-related hostile climate at this college, saying there is now a hostile climate, and declaring them ineligible for federal funds as Congress mandated us to do.

I guess one question is when does removal of major additional funding become coercion? Is there any law on this? Wouldn’t loss of Medicaid funds, block grants, federal highway funds, etc. put a state government into financial crisis unless they raised taxes to the moon? Why isn’t this the same as a university being forced into financial crisis unless they raised tuition (or state appropriations which come from state taxes) to the moon?

CF - That’s one question. Another question is “Did anyone say Columbia *shouldn’t *sanction Sulkowicz?”

Question 1: Did anyone say Columbia couldn’t sanction Sulkowicz? My memory isn’t perfect, but IIRC there were a few people saying they couldn’t on 1st amendment grounds, although I believe most people didn’t make this argument. What’s funny to me is in the Columbia case, we’re talking about an on-campus project (in fact, campus sponsored), broadcast very publicly, at a private university. Here we’re talking about an off-campus tweet, privately sent to a handful of individuals, at a public university where the 1st amendment applies much more broadly.

Question 2: Did anyone say Columbia shouldn’t sanction Sulkowicz? Again, IIRC, most people were saying Columbia shouldn’t sanction Sulkowicz. Here, it seems like most people think KU should sanction this guy but can’t on 1st amendment and other grounds.

Question 3: What do I personally think (if anyone cares)? I think in both cases the conduct is very bad and merits severe sanction (haven’t decided exactly what though). In both cases, the university should go as far as their code of conduct, the law, and the 1st amendment allow to sanction the offenders (the jerk and Ms. Sulkowicz respectively). The only difference is in how far the universities can go because of the specific codes of conduct they’ve adopted and the greater restrictions on a public university with respect to 1st amendment violations.

1825

We don’t know how many followers Yeasin had for his Twitter feed, but it’s unlikely to have been just a handful.

1826

I think we have a bunch of elderly people who don’t understand cyber bullying. I am talking about the people who actually make the legal decisions in these cases.

What are the similarities and differences between the KU case and the Texas license case that was just decided by the Supreme Court?

1827

In the particular case of Title IX, there is actually a proposal in Congress to allow OCR to levy a partial fine of up to 1% of a school’s operating budget.

I may be in a minority here, but I think this is a horrible idea and I hope the Congress doesn’t move on this. It would give the OCR another tool to bully schools relentlessly. I have little confidence in the OCR’s judgement to date on these issues and their desire to balance everyone’s rights, so I actually prefer the MAD-like nuclear deterrence structure we have in the current Title IX setup. After all, it did keep the peace between the U.S. and U.S.S.R. (Stable von Neumann game theory matrix and all that stuff, if you’re an economics or math person. Easy to mathematically show that allowing repeated partial fines would change the game theory matrix so that the colleges lose 100% of the time even if they play perfectly but the OCR wants to win.)

Even if it was sent to a couple hundred twitter followers, it’s nowhere near the amount of publicity Sulkowicz received. State of the Union, etc. etc. Her bullying project was university sponsored. She received academic credit. There’s simply no comparison in my book.

1828

@HarvestMoon1: That’s a fine primer, except that I don’t see where it draws the distinction between school children and college attendees. That’s a pretty important distinction to miss, so maybe I just missed it in my reading.

@al2simon: OCR can call it what they like but I doubt the courts would see it any other way. It would be direct retaliation for obeying a court order (courts are generally in favor of obeying court orders) that was based in constitutional law. I wouldn’t want to be the AG assigned to that case.

There is very, very little law on spending power coercion. In fact, so far as I’m aware, there’s only one case. You may [url=<a href=“https://en.wikipedia.org/wiki/National_Federation_of_Independent_Business_v._Sebelius#Medicaid_expansion%5Dremember%5B/url”>https://en.wikipedia.org/wiki/National_Federation_of_Independent_Business_v._Sebelius#Medicaid_expansion]remember[/url] it. There’s plenty of law on retaliation though.

As to Columbia, they are a private university and so are not bound by the First Amendment. They would have to obey their school handbook and policies if they wished to sanction Sulkowicz, however.

1829

But Columbia is also subject to Title IX, at least in practice. If Title IX is broad enough to require Kansas to act in this case on these facts, then it is broad enough to require Columbia to act in the Mattress case. I don’t want to speak for @“Cardinal Fang” but I think her post relates to whether people believe one or the other party should be subject to sanction based on your overall view of the DCL.

1830

Quite so, but my comment about the number of followers Yeasin had was directed to whether he had an unfettered First Amendment right to say what he said on Twitter. If he had two followers, then it would IMO have clearly been protected speech. The median number of followers for Twitter users who tweet regularly is something like 50. That looks more like public speech that would be unprotected if it were harassment.

Comparing Yeasin and Sulkowicz is interesting. One difference I see is that Yeasin’s speech could be seen to be threatening and intimidating, physically threatening, to his ex, to whom he had already been violent. That’s not an issue for Nungesser.

1831

@Ohiodad51: Absolutely, I didn’t mean to imply otherwise. I only meant that if Columbia did act it would not have the First Amendment issues that KU has. It would have the contractual issues though.

As to whether Columbia should have sanctioned Sulkowicz, I think there’s a plausible case to be made that this was sexual harassment. My understanding is that they had a failed dating relationship, which is a pretty good basis from which to assert sexual harassment.

1832

Have any of you come across this site before?

http://www.keephersafe.org/

"The Parent Toolkit empowers you to:

Make sure your daughter attends a school that takes sexual violence—and its responsibility to prevent it—seriously
Minimize the risk that your daughter becomes one of the 1 in 5 female college students who is sexually assaulted
Make a difference in compelling universities to more effectively combat sexual violence on their campuses
Help bring about changes that make everyone’s daughter safer at school"

“A “Quick-Start Guide” so you can jump right into making informed college selection decisions and getting involved in pressuring administrations to act effectively
A simple but detailed how-to guide for researching and visiting schools and ascertaining how safe they are
A list of important questions to ask admissions offices to determine school attitudes and policies concerning sexual violence
Easy, actionable steps for communicating to colleges that you and your student consider “safe from sexual assault” a major college election criterion
A complete letter template you may use to communicate this sentiment to schools”

One of the goals is to see a “safest campus for women” category in the US News rankings.

What do you all think?

1833

“We don’t know how many followers Yeasin had for his Twitter feed, but it’s unlikely to have been just a handful.”

IMHO, the harassment issue turns more on who the followers were than how many there were. A thousand followers in Seattle might be less troubling than her five best friends.

1834

@Hanna: I think you’re probably right about that. However if you look back to some of the cases I posted, even if they were her best friends that is unlikely to rise to the level of contact.

1835

You’d need actual good, reliable numbers on campus sexual assault to do that.

Aaaaaaaaaaaand now we’re back to post #1.

1836

Summary of the District Court Judge’s decision of September 26, 14’ in the University of Kansas case:

After the petitioner was expelled he sued the University on 4 grounds – erroneous application of the University’s Code of Conduct, expulsion was unconstitutional, University failed to follow its own procedures and the expulsion was not supported by the factual record. The Judge focused primarily on the Student Code in ruling that the University “erroneously interpreted” the code and in ruling that the findings of the University panel were not supported by substantial evidence:

The Judge then addresses the Student Code and references the final report of the panel upon which the expulsion was based. The University panel stated petitioner violated Article 22 of the code. The conduct the University panel specified was holding his ex against her will, calling her demeaning names, threatening suicide when she attempted to end the relationship, the tweets and the violation of the “no contact.” The panel acknowledged some of the actions occurred off-campus however “the relationship and behavior has had on-campus affects for the complainant.”

Petitioner claims Article 22 of the code does not extend to conduct occurring off campus. The text of Article 22 does in fact limit disciplinary action to violations “while on University premises or at University sponsored or supervised events…….” The Judge then addressed the University’s contention that in 2011 it added a phrase to another Article of the code (Article 20) in response to the DCL which does in fact allow them to reach off campus behavior:

The University claims this last phrase “or as otherwise required by federal, state or local law” was meant to allow them to comply with Title IX and the DCL which requires them to respond to some off campus activity. The Judge disagreed stating:

The Judge then goes on to point out that the DCL also issued the following admonishment to schools:

The Judge does not really articulate why he thinks the University’s amendment to Article 20 does not accomplish the above but simply states "the court finds the University’s own student code only applies to conduct that occurs on campus. (Thinking maybe because the hearing panel relied on Article 22?) The Judge continues stating that “the University failed to establish by a preponderance of the evidence that petitioner’s conduct occurred on campus” citing that the events occurred over the summer months off campus. And likewise the current student code does not prohibit off-campus published statements “that he should have reasonably believed would be read on campus or otherwise reach campus, as was the case.” He concludes with:

The University of Kansas is currently appealing the decision.

1837

In the KU case, everyone agrees that the objectionable conduct took place off campus. So then the appeal turns on whether

should be interpreted as

and whether the “otherwise required” part can be interpreted as Title IX requires the college to get rid of harassers and Navid is a harasser.

1838

http://www.ew.com/article/2015/06/22/last-week-tonight-john-oliver-women-on-internet

Laws lag…

1839

Well, the whole point about whether the tweets were “directed to” the accuser is relevant I think primarily to the question of whether the activity occurred on or off campus. If there is now agreement that the tweets were off campus, then yes, the question becomes 1) did the tweets constitute harassment or protected speech and 2) if the tweets are denominated harassment and not protected speech, does Title IX impose an affirmative duty on colleges to stop harassing behavior, and under what circumstances. It is on this point that the case becomes another facet of the issue raised in Nunssinger’s case against Columbia.

1840

I didn’t think anyone ever alleged that he was standing on campus when he tweeted. And if that is currently relevant in law, it shouldn’t be.

Do we doubt that if he had been phoning her or texting her from off-campus, that would have been harassment? (I’m not saying a text to her is the same as a tweet that is blocked from her Twitter feed; I’m just getting at location here.)