All UVa frats on suspension

momrath · December 18, 2014, 5:08am

I also came to this thread because I was intrigued about the Rolling Stone article and UVA’s response. At the time, I was only aware of Title IX in the context of campus athletics, so I have to thank Jackie and RS for the education.

I think there’s a difference between Title IX which is a general piece of legislation that prohibits discrimination on the basis of sex in any federally funded education program or activity and the "The “Dear Colleague” letter issued by Department of Education’s Office of Civil Rights (and signed by Russlyn Ali Assistant Secretary for Civil Rights) which mandates – by threatening to withhold Federal funds – how colleges must respond to reports of student-on-student sexual harassment and violence.

The regulations laid out in the Dear Colleague letter are an attempt to render college campuses “free from the discrimination” of sexual harassment and to level the playing field so that all college students can enjoy a non-threatening environment. So far, so good.

Where the Dear Colleague letter goes too far in my opinion is when it mandates procedures for the colleges to adjudicate violent sexual assault crimes, procedures that are in conflict with the accused’s overarching Constitutional rights of due process. The letter makes a distinction between sexual harassment and violent sexual crimes, but demands that the colleges handle both internally, whether the police are involved or not.

Our legal system is unabashedly tilted toward rights of the accused. There are many good reasons for due process, for the Miranda rules and for the treatment that we expect from our courts while we are presumed innocent. Rapists, murderers, terrorists, child abusers are all afforded due process. Most are rightfully convicted, a few are not. But in spite of the legal system’s imperfect record, I don’t think anyone here wants to overhaul the philosophy behind due process and deny even the most heinous criminals their constitutional rights. Except in the case of student-to-student sexual violence.

Why then do we think it’s fine to set up a parallel court system within our colleges, that revokes due process rights? And why is it fine for an Assistant Secretary of Civil Rights in the Department of Education to mandate by fiat that the colleges must adhere to a different legal system? I’m aware that other governmental departments – like the EPA, the SEC, the IRS – can wield immense power over our lives, but I’m not aware of any proceedings of these agencies that conflict with due process.

The Dear Colleague letter seizes the power to mandate how colleges handle sexual harassment and assault through a biased interpretation of the law and by exercising the power of the purse. Under the Dear Colleague rules, colleges become investigators, judges and juries for violent assaults, positions that they are not equipped to handle.

Does the DE even have the right to control how college’s handle sexual abuse? Is it even legal to cut Federal funding for non-compliance with the Dear Colleague letter?

As I pointed out earlier, the Dear Colleague letter stipulates

How can schools reconcile this demand with the other requirements that deny due process?

I’m sure we will see more legal challenges brought by college students who feel they have been wrongly accused or unfairly treated by college committees, questioning the whole premise of the Dear Colleague letter. In the interim colleges are being put in an untenable position. The DE OCR and many victims feel colleges are not coming down hard enough. The accused and some voices both on the left and right feel colleges are over-reaching with disastrous consequences.

Millions of dollars will be poured into compliance with the Dear Colleague regulations – both by the government which will monitor and police violations and by the colleges which will hire hoards of sexual assault experts and pay off the inevitable lawsuits.

When an issue like sexual assault on campus becomes politicized it becomes very difficult to have a rational public discussion about how to go forward. I think Jackie’s case served a purpose in opening the eyes of many, like me, who weren’t aware of the gross overstep that the DE has taken.

lookingforward · December 18, 2014, 5:30am

I give you credit for trying to think this through, momrath, trying to piece it together and analyze. But can you look at this, (even if only as an exercise,) as the colleges adjudicating infractions of their Codes of Conduct? Not a parallel system, per se. Not a criminal court decision, but a companion action, relating to their specific environments, their community, not really on behalf of the community at-large.

Cardinal_Fang · December 18, 2014, 5:39am

Because it’s difficult to convict rapists in a court of law. Because we don’t want a standard of “beyond a reasonable doubt” to prevent us from removing people from college if they probably raped their classmates. Because we don’t want our daughters to go to school with people who probably raped their classmates, and we don’t want our sons to go to school with probable rapists either.

lookingforward · December 18, 2014, 5:49am

Dstark, you’ll love this one. <a href=“due process | Wex | US Law | LII / Legal Information Institute”>http://www.law.cornell.edu/wex/due_process</a>
It tackles due process. I’ll be curious to see if @jonri or JHS have comment.

“The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states. Did the Fourteenth Amendment change that? In the middle of the Twentieth Century, about a century after its adoption, a series of Supreme Court decisions found that the Due Process Clause “incorporated” most of the important elements of the Bill of Rights and made them applicable to the states.”

It may explain the question about “public and state-supported schools.”

Consolation · December 18, 2014, 6:30am

I fully agree.

What are you talking about? Who said they see butt-grabbing as a norm? This is the kind of thing that drives me absolutely nuts in this conversation. Apparently you haven’t noticed that I have TWICE iterated how I think these boors should be dealt with, starting with reeducation. In what universe does this mean I think it isn’t a problem???

Because there is an infinite supply of boors? Why are people still being called by racial epithets? Some people don’t get the message, or they get the WRONG message from their families, the milieu they grew up in, or the media they consume.

In addition, face it: some women don’t object. They regard it as a compliment. Other women are too dependent on seeking approval from men and so afraid that the boys won’t like them that they are afraid to openly object. Nor would they stand up for another woman.

While we’re re-educating males to respect other people’s autonomy and personal boundaries, maybe we should try to inject some independence, self-respect, and backbone into some of the females.

@‌lookingforward, this is typical of a number of snarky remarks you have made in your posts on this thread, remarks that often grossly distort the post to which you refer:

I related an incident in which some girls made what can only be called harassing, sexual phone calls to a 12-YR-OLD BOY. They weren’t “women.” They were precociously predatory tweens. You crafted your statement to make it seem as if I don’t think a woman should have the temerity to call a guy, and if she did she is “asking for it.” This is intellectually dishonest, and I find it hard to believe that you don’t know it.

Cardinal_Fang · December 18, 2014, 7:05am

does anything in the Dear Colleague title IX letters preclude the sort of due process safeguards listed in the Cornell l law memo LF listed: right to counsel, to know the evidence, to cross-examine witnesses and so forth?

marie1234 · December 18, 2014, 7:26am

“I agree @Marie1234 you are obsessed with the UVA case. But what I object to is that you are using it as a hammer in an attempt to crush the credibility of other sexual assault victims, implying that the vast majority of cases are overblown or even made up. I detect some sort of “glee” in your endless negative depictions of Jackie. Why not aim your cannon at Erdley who really should be taking the heat here. IIRC, JAckie did not want this story published. And how will you feel if it turns out Jackie was in fact a victim of sexual abuse???”

Well, this is interesting. I missed it earlier. And, I’m not doing that at all so I have no idea to what what you are referring. This case appears to be made up and most of my comments have been about this case which is what this story was about until this case fell apart and we resorted to, “Oh well, it’s still a problem”. Jackie was not important to the author of the RS story who interestingly referred to her as a “main character” in her piece. Initially, I thought something probably happened because if you’re going to write a campus rape story it would be logical and seemingly easy enough to interview a victim of campus rape. Why not? Although obviously heavily dramatically embellished, I suspected mostly the attention-seeking writer and have been plenty hard on her here and never said much about Jackie at all except to restate some of the bungled elements of her emerging story. Now, it’s looking more like a simple case of the story being too good to fact-check but that’s still all on the writer and the idiots at Rolling Stone who bought into the idea of not asking too many questions when the subject is rape. There are lots of girls with lots of drama running around out there.

momrath · December 18, 2014, 8:46am

This is a very very slippery slope. Don’t get the conviction you want – set up your own court and try again. Think “reasonable doubt” is too protective of the accused – devise your own standards.

Of course I want violent people of any stripe removed from campuses. I believe this can be done within the current framework and without denying due process. There’s suspension, there are no contact rules, there are restraining orders, there are other charges that the colleges themselves can bring. I believe that a reasonable system could be worked out if the DE, Justice Department, the colleges, and the police worked together. We all want the same thing.

“Our daughters” also need to bear some responsibility for getting classmates whom they accuse of sexual violence convicted. If they won’t file a report and later testify then I agree we’re kind of stuck. Societal attitudes toward rape victims and procedures used in sexual assault investigations and trials have improved enormously in recent years, but they still need improvement. Setting up a separate justice system so that young women don’t have to deal with the law enforcement system is to me solving one problem by creating another.

All of the Miranda Rules are compromised.
You have the right to remain silent when questioned.
Anything you say or do may be used against you in a court of law.
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney

And this is just the questioning phase. During the trial the accused may also be denied the right to counsel, the right to appeal, access to the evidence, ability to cross-examine. There are also issues with self-incrimination, the right to remain silent and double jeopardy.

The Dear Colleague letter gives each college considerable latitude in setting up its own policies and procedures as long as they are compliant with the required mandates, and the open ended options may result in the college policies that go beyond the Dear Colleague requirements, making a bad situation worse.

lookingforward · December 18, 2014, 10:11am

CF, due process seems to apply to federal and state actions. 
The documents cover the right of both parties to have counsel, if the school is allowing that. Schools are discouraged from allowing the accused to question the accuser during a hearing. But questions can be run through the chair, who decides.

Consolation, someone brought up an anecdote about girls calling boys (or a boy,) along with, iirc, a pointed comment. Others have brought up female aggressive behaviors, someone mentioned some attire on the beach, etc. That paragraph of mine was a run through some of the kinds of talk we’ve been hearing. My point is (and has been) that Title IX is what it is. And not what it’s not. Sorry you think I’m snarky.

Of the things contended here about Title IX here, (re: sexual misconduct,) I do not see that it calls for a parallel “legal action.” (Not legal action, but a specified procedure.) The college’s actions are not meant to replace the criminal justice system options. It’s about how the college responds, as an entity. It does not halt an alleged victim from contacting police. In fact, colleges are obligated to let them know their right to report to police. (And the right not to report to the police.) It is not solely about rape, it does not allow the college to ignore the accused’s rights, etc. It doesn’t specify punishments, nor call for extreme sanctions. (That’s left to the colleges and their policies, as long as they follow the required points.) I don’t know why some colleges made a mess of this- but I don’t think it’s as simple as PR or money. I do think it’s incredibly difficult to know what happened- and none of us should assume too much, in any direction. Or get too sidetracked. Jmo.

lookingforward · December 18, 2014, 10:36am

Momrath, I think we need jonri or JHS to weigh in on due process.

alh · December 18, 2014, 12:01pm

In #3098 Dstark gave a link and quote:

This is the sort of education “our daughters” are getting at college. This is what those in authority tell them. What kind of strength does it take to stand up to that? Frankly, I think second wave feminism failed in not dealing with college sexual assault so that it could now be more or less taken for granted all our children are safe on campus, girls and boys. They are going to have to solve that problem themselves and some of them seemingly have the " independence, self-respect and backbone" to do so. We need to be supporting their efforts.

I agree with you that girls sexually harassing boys by phone is as wrong as the other way round. There was a period of time in early high school my sons asked me to screen their calls, because a group of three girls frightened them. My sons weren’t ready for sex. Now they are all great friends and get together when they are in each other’s locales. I always liked those girls because they were very clear what they wanted. They are really intelligent and charming, but they had to learn to respect the boundaries of others. That was part of growing up for them.

dstark · December 18, 2014, 1:58pm

Alh, yeah, I found what the dean said a little upsetting. :)

LF, nice link.

It follows from the preceding discussion that one cannot expect to list the elements of “required procedures” under American law. In the case involving a ten-day suspension from public school, a chance to tell the school principal (someone other than the complaining teacher) one’s own side of the story was sufficient. Suspension of welfare payments may still be held to require all the elements specified in Goldberg, and actual termination of those payments, somewhat more. Nonetheless, an analysis made by the late Judge Henry Friendly in his well-regarded article, “Some Kind of Hearing,” generated a list that remains highly influential, as to both content and relative priority:

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.
Again, these are simply the kinds of procedures that might be claimed in a “due process” argument, roughly in order of their perceived importance, and not a list of procedures that will in fact be required.

bluebayou · December 18, 2014, 3:00pm

This just goes to show proof positive, that we have plenty of morons on college administration (and the education field in general). So we are supposed to put these people in charge of adjudication? Seriously? Does that even make sense?

mom2and · December 18, 2014, 3:00pm

Nobody wants rapists on campus. But some don’t want non-rapists expelled due to poor processes. The first thing on the list by dstark is an “unbiased tribunal” A college tribunal typically does not include anyone with professional LE or trial experience (police, prosecutor, defense attorney, judge). This means they don’t have experience or training in the appropriate way to determine who is more likely to be telling the truth, even at a preponderance level of evidence. If those on the tribunal are sure that the girl never lies or that 90% of rapists are serial predators who will do this again, the individual evidence in a specific case may not matter. And vice versa, if the tribunal believes that the girl is always at fault if she goes to a boys room after a party, then the individual evidence wouldn’t matter either. Neither is fair, but only the latter appears to be a Title IX violation.

Reportedly, many of the things higher on that list have not been incorporated by colleges, even (again as reported) not giving the defendant the opportunity to present evidence or cross-exam witnesses or basing the result strictly on the evidence (and not on some preconceived notions in either direction).

To me, the argument is whether a 51% likely to be guilty is enough to expel a suspected rapist, not whether a clearly guilty man should be thrown out (of course and should also be in jail). If 51% is too low, what is the appropriate level of probability? Should the level of evidence required differ based on the proposed punishment and the actual event? In court, if a prosecutor can’t find a defendant guilty of a high level felony, a plea can be offered to a lesser offense. The two drunk kids scenario (which some believe is exceedingly rare and others believe is the most common circumstance on campus), IMHO, does not deserve the same level of punishment as assault on an unconscious woman or a gang rape. As momrath says, this can become a slippery slope.

There are many other punishments that can be given that don’t haunt a person for the rest of their life. All I think is that the punishment should fit both the event that happened AND the level of certainty that the boy is guilty.

AndreiTarkovsky · December 18, 2014, 3:03pm

This sort of thinking by a traumatized nation post 9/11 gave us the Patriot Act, extraordinary rendition, torture of suspected terrorists, and domestic wiretapping without warrant. Conducted in our name all these made us a little dirty.

TatinG · December 18, 2014, 3:40pm

<a href=“Sullivan: All reviews of UVa's sexual assault policies and procedures to be made public”>http://www.dailyprogress.com/news/local/uva/sullivan-all-reviews-of-uva-s-sexual-assault-policies-and/article_6356866a-8643-11e4-9070-179deb2b2a68.html</a>

Reviews of policy will be made public, but not information about individual cases.

Jeffrey Rossman, an associate professor of history, said the university should consider taking action against the U.S. Department of Education for dictating a lower standard of evidence than criminal proceedings which he said can deny due process to students. He referenced a letter by a group of Harvard Law School professors with similar accusations.

“Many have been talking about these issues across the country, but no one has the fortitude yet to take that step,” Smith responded. “I think these things are going to be discussed and they need to be discussed.”

lookingforward · December 18, 2014, 3:54pm

I think due process may not apply.

Mamalumper · December 18, 2014, 4:03pm

Thanks for posting that article TatinG. It was heartening to see that at least the faculty, although concerned about sexual assault, is also concerned about due process and their ability to handle it.

I also thought the suggestions to prohibit the frat parties from offering hard alcohol was a good one, and locking the bedrooms too however that one will be more difficult to enforce since that is the home for some of the boys. The suggestion for parties only to be held at bars may just push the parties “further off campus” to private (ie the other off campus homes of fraternity brothers) where they can serve hard alcohol.

Hunt · December 18, 2014, 4:15pm

I’ve posted about this in great detail before, so I will just make a few points. In any rape case in which there is an asserted defense of consent, there are serious proof problems. This makes it hard to get a conviction in criminal courts in such cases, in part because of the “beyond a reasonable doubt” standard. This simple fact has, in my opinion, led to a number of the problems we are facing in terms of campus assault.

First, the fact stated above may have led to some of the advice to women not to pursue a criminal complaint. The people giving the advice may, based on plenty of experience, be well aware that the complaint is unlikely to lead to a conviction (or even much of an investigation) because of the proof issues. There may be self-serving reasons for this advice, of course, but do we really want college officials to encourage women to report cases to the police that have no chance of getting any kind of punishment for the accused offender? Maybe we do, but we’ll be back again arguing about why there are so few convictions.

Second, the fact that it’s so hard to get convictions in such cases in criminal court is what led (in my opinion) to the effort to get around the issue by telling the colleges to pursue the cases, but using a much reduced standard of proof and reduced procedural protections. I support this in a limited way–but not when the allegations are rape, the punishment is expulsion, and the accused’s “permanent record” will state that he or she was expelled for rape. Those are so close to criminal punishments that I think more procedural protections should be applied.

Finally, I think that polarization on this issue has made it difficult to arrive at appropriate solutions. Personally, I think it’s important to recognize that there are sexual infractions that are not the same (or as serious) as rape, as well as situations that might be rape but where the proof issues are too formidable to justify serious punishment. For such cases, it’s appropriate to have relaxed protections, but also less onerous punishments.

mom2and · December 18, 2014, 4:21pm

Thank you Hunt. Totally agree and very well put.

All UVa frats on suspension

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