<p>I agree with both momofthreeboys and Consolation. It would have been best if Emma had gone to the police immediately. </p>
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<p>We are expecting women to behave rationally in these circumstances. I am just guessing most women do not expect to be assaulted sexually and don’t have a plan already in place, as to the best way to respond, when it does happen. Emma has now moved beyond letting anyone shame her. Maybe other women, influenced by Emma, will go to the police immediately. I am sure she is aware of how this protest impacts her future employment opportunities. Suggesting the negative impact on her future, as a reason not to protest, is another way to attempt to silence her now that she has found her voice. imho. I think she is very purposeful, at this point, in representing all survivors. She has moved beyond self-concern.</p>
<p>We all read the same “facts” and see a different story. The story I see here is one of bravery and setting an example for her peers, someone now intent on changing the way we respond to assault.</p>
I’m not necessarily against legal fictions–sometimes they are very useful–but to treat a serious crime as a civil rights violation so you can get access to the preponderance of the evidence standard is precisely what I mean when I say that Title IX is the wrong tool for this.</p>
<p>Plus–and this is the issue I always had with mini on this topic–even if there is a technical argument in favor of something, that doesn’t mean that it is a good idea.</p>
<p>*I think that some colleges/universities did believe that the answer to meeting Title IX Dear Colleague WAS to ramp up convictions and that is why you see the civil cases that are being mounted. *</p>
<p>I don’t know what your basis for this is. (How would you know?) Isn’t it possible this is just the fear some have, rational or not? Just because they follow process doesn’t mean the only goal is to “ramp up convictions.” It’s to resolve their portion of these accusations/conduct violations, per requirements, in a defensible manner. </p>
<p>The civil cases that have been brought are a defensive move- parties have some right to challenge the results. That tells us zip about whether these accuseds are innocent or not, nor whether the college will be found in the wrong.</p>
<p>The thread keeps cycling back to words about the criminal process. I happen to agree the accuser should go to the police. But this notion colleges are operating as pseudo criminal courts is off. They are supposed to handle their part for their community. If the accuser refuses to cooperate with police, what do you want the college to do to her? She has the right not to pursue this with LE.</p>
<p>And yes, the Supreme Court accepts preponderance. </p>
<p>CF: I found that interesting, too. The way I read the letter, Emma played by the rules put in place by the college and was disadvantaged because the man she accused did not. </p>
<p>I have no idea of the truth of any of this. ( I don’t know if this board really exists. Or if it does, if I am the only poster truly here and the rest some kind of computer matrix thingy) I am accepting as truth her parents’ version. </p>
<p>Sorry for the Savannah side-trek. It hadn’t really occurred to me we weren’t all on the same page there. Foolish assumption. I should really have known better.</p>
<p>Hunt, who says they’re treating “a serious crime as a civil rights violation so you can get access to the preponderance of the evidence standard?” Doesn’t that skip a beat? </p>
<p>If Columbia didn’t allow both sides the same opportunity to engage a lawyer, Columbia was wrong.</p>
<p>According to the Dear Colleague letter, the Supreme Court requires preponderance of the evidence for adjudicating civil rights violations. Not accepts, but requires. If this analysis is correct, then running a college tribunal using a higher standard of proof is in itself a civil rights violation.</p>
<p>Meant the same thing CF. Requires and does not challenge use of preponderance. The colleges being investigated are also subject to preponderance.</p>
<p>Well, I think the issue is labeling a felony criminal matter a civil rights violation so you get a higher conviction rate. Heck, we could do this with robbery and murder, too. It would make prosecutors jobs much easier. </p>
The point is that the Justice Department letter pushes colleges toward pseudo criminal courts, while prescribing a standard of proof not available in criminal courts. And while the Supreme Court may have said that the preponderance of the evidence is to be used in civil rights cases in court, has it really said that standard must be used by colleges in disciplinary proceedings–that aren’t courts? I’d be surprised. I suspect that this is a highly arguable point.</p>
<p>But I don’t feel obligated to accept this approach as reasonable even if the Supreme Court did say something like that. In my opinion, the preponderance of the evidence standard is only appropriate in cases of civil disputes between parties, and not in cases involving personal punishments. I just don’t think it constitutes due process when serious punishments are possible.</p>
<p>To add a specific reason: in cases which turn entirely on the credibility of the accuser and the accused, if you use a preponderance of the evidence standard, members of disfavored groups will lose if the other party is a member of a favored group. This is one of the things that due process is intended to prevent.</p>
<p>Arguable when one see the college action as “court” and veers from the misconduct issue, as stated in the colleges’ Codes of Conduct, no? The word repeatedly used is “hearing.” </p>
<p>The colleges don’t jail. They impose sanctions- which can range up to the demand to leave their community, yes.</p>
<p>I haven’t researched the cases, but I suspect that the Supreme Court has said that preponderance of evidence has to be used in employment cases. I’m imagining cases where a woman says that her employer failed to take action when she was harassed at work, and the Court said that the employer had to use preponderance to determine whether the alleged harassment occurred. But, as I said, I haven’t researched the cases. </p>
<p>I haven’t researched this much either, but here’s an article (from a college paper) in which the expert they interviewed says (as I suspected) that what OCR is referring to is the use of the preponderance standard in civil rights cases in federal court. Obviously, this is not necessarily dispositive on what standard should be used in college disciplinary proceedings.</p>
<p>Let me just emphasize that my main point is that in my opinion, using the preponderance of the evidence standard to adjudicate a case in which proof problems are inherently difficult, bias is highly possible, and the punishments are severe, is a really bad idea. I don’t believe that it is really legally required, but if it is, that’s a bad law that should be changed.</p>
<p>"The colleges don’t jail. They impose sanctions- which can range up to the demand to leave their community, yes. "</p>
<p>Yes, I understand this but they are only doing it in sexual assault cases right? So what about the other assorted felonies? They’re bad, too. Misconduct, I have no real issues with though if people feel the need for such a proceeding.</p>
<p>It turns out that in many cases, the Court has required that schools use the substantial evidence standard in school discipline cases, even when the alleged offense is a felony committed by an adult student. Substantial evidence is a lower standard of proof than preponderance, because there could be substantial evidence that a student is guilty, but even more substantial evidence that he’s innocent, and yet the student could still be disciplined under the substantial evidence standard.</p>
<p>Good article. And it does refer to due process for public schools, my bold: Because public schools are considered state actors under the Fourteenth Amendment, due process is required in disciplinary proceedings if those proceedings threaten to deprive the student of an interest that falls within the meaning of “life, liberty, or property.” And that jives with the Cornell doc earlier linked.</p>
<p>Actually, that’s a note written by a law student, but that doesn’t mean that it’s wrong. It doesn’t say that the Court has required a substantial evidence test–but rather that, in some cases, this has been found to be the minimum standard. But even that’s not clear–and I think it highly unlikely that federal courts would support a standard less than preponderance for sexual misconduct cases.</p>
<p>But I simply disagree with the author in her evaluation of the balancing test as applied to these kinds of cases. I think she underplays the interests of the accused and the risk of an erroneous decision, for reasons I’ve stated above. In my opinion, a proper application of the balancing test she applies would require a standard higher then preponderance of the evidence, because expulsion from college with a “conviction” for rape is, in my opinion, a very serious punishment similar to criminal punishments, and the risk of erroneous decisions is very high if a preponderance of the evidence standard is used.</p>
<p>I know I may seem pigheaded about this, but I am really concerned when I think efforts are being made to circumvent our civil liberties–and the rights of an accused person are very important civil liberties, in my opinion.</p>
<p>Looks to me like due process is always going to be required, because a student has a property right in their education even at a private school, and due process has to be used when depriving someone of property. And that’s the basis of the disciplined students’ lawsuits: that they didn’t get due process. </p>
<p>The accused student has a property right in their education, and the accuser has a Title IX right to have a campus free of their rapist. This is the conflict between due process and Title IX that, for example, Emily Renda is talking about.</p>