<p>There is a conflict in rights here–just as there is when there’s a criminal trial involving an accused and a victim. In a criminal trial, though, we understand that the rights of the accused are so important that we know that in some cases guilty persons will escape punishment. We do this even though obviously the right not to be raped or murdered is tremendously important.</p>
<p>I just think it’s a bad idea to try to rebalance those interests by shifting them to a supposedly civil setting, but still imposing serious criminal-like punishments. Obviously, being expelled is not nearly as bad as being incarcerated, so I don’t have a problem with the process being somewhat less–but, in my opinion, using the preponderance standard is well below the minimum that ought to be in place for this magnitude of punishment. The Claremont article notes, by the way, that an accused in a disciplinary proceeding in a college using preponderance actually has less procedural protection than a defendant in a civil suit in court–there’s no trained judge, there’s no pre-trial discovery, often there’s no right to cross-examine opposing witnesses, and there’ isn’t a jury.</p>
<p>It’s an intractable problem, because of the inherent proof problems, as I’ve noted before.</p>
<p>Looking forward said “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.”</p>
<p>Community means different things … There are LACs that are barely bigger than where my kids went to high school and then you have schools the size of small cities. How does a university with 35k - 40k students, most living off campus in the actual city community, become both investigators and prosecutors of an alleged crime occuring in some bedroom in an off-campus apartment?</p>
<p>I don’t agree that expelling a student is a criminal-like punishment. Criminal-like punishments involve jail or probation. Expelling or suspending a student is a civil-like punishment. People can be subject to large monetary judgements on the basis of preponderance.</p>
<p>Fang, I think the diff is who brings the action and the DP is required when it’s state or fed- that’s the 14th Amendment thing. A pubic school- eg, UVa or UC or a public k-12- is a state entity.</p>
<p>Adding:
T9 highly discourages the accused cross-examining the accuser. Questions may be given to the Chair to ask. The Chair reviews them.</p>
<p>I also don’t agree expelling is criminal-like. </p>
Obviously, this is a matter of opinion–and a matter of degree. As it stands now, a person in danger of a $100 fine in criminal court is entitled to greater protections than a person who could be expelled from college with documentation labeling him as a rapist.</p>
<p>I don’t recall if the letter requires an opportunity to cross-examine. If it does, that’s a good thing.</p>
<p>The only way out without some major shifts through another Dear Colleague Letter would be if colleges and universities would handle these cases similar to business and industry with regard to a student personal record short of the grades and credit hours. Few if any employers will share their personnel files with anyone short of a subpoena. And the new employer’s chances of getting a subpoena for your personnel file are slim. If colleges and universities are going to continue to adjudicate and prosecute criminal activities without the rights and due process afforded the individual in criminal court I do not think the colleges and universities should be able to release information regarding those tribunals. e.g. expelling or suspension of a student is very similar to suspension of firing of an employee and employers rarely if ever under fear of lawsuit release that information to the employee’s new employer. Adopting this stance would also cut way back on the lawsuits from students who want their records cleared of what society considers criminal behavior.</p>
<p>I suspect that fairly often what actually happens is that a student is expelled, and, after threatening to sue the college, a deal is worked out permitting him to withdraw permanently without anything on his record. I don’t know if that’s a good thing or not.</p>
<p>I agree with you, Hunt, that the problem of balancing the right of the accuser and the right of the accused is difficult. But I think you are underestimating the cost to the school and to the accuser of letting the accused student go unpunished when the student is guilty. Not only does erroneously leaving her attacker on campus put a heavy burden on the accuser, but also it puts a burden on other students who know that they are not being protected from attackers when students that the college believes are attackers are allowed to remain on campus.</p>
<p>It’s not just being expelled, you know, it is a permanent record of being expelled and the reason why.</p>
<p>IF the college does not have to remain confidential.</p>
<p>Like the public school district I went to, who knew full well that the guy who was transferring from a neighboring school district, both under the same county superintendent, was a pedophile. It was his privacy, as a guy in his 40s who knocked up a HS student, that was more important than protecting us, the student body, from a pedophile.</p>
<p>The protection of employees from HR notifying new employers of reasons for someone’s dismissal is sacrosanct due to huge civil suits. Not so for the general public.</p>
<p>I don’t either, Hunt. We know from the Dartmouth link that some kids voluntarily withdrew and that was that. </p>
<p>I think everyone responds to sexual assault talk differently than cheating or stealing or alcohol found in one’s room, and more- which can lead to expulsion. But the focus on the unfairness of expulsion in the case of sexual assault, that it denies rights, may be excessive, etc, hides the fact the colleges may indeed expel for various reasons. I mean, if people are so worked about a kid getting expelled, shouldn’t they also attack its use, ever?</p>
<p>Was T9 in effect when you went to hs, RH?</p>
<p>Does the college make a permanent rape notation on the records? Even Clery doesn’t require names.</p>
<p>I tend to agree with you Hunt - that probably occurs more often than we think. In many cases I would suspect the college does not think the accuser is a threat and just wants to get everything settled as expeditiously as possible. </p>
<p>Lookingforward, if I understand it correctly when a student leaves the college due to expulsion or even if the student is suspended for a semester that is sent along to any other college on their transcript. I’m proposing that they not do that, similar to when you go to a new job. Your former employer generally will verify when you started working and when you left their employ and some will verify salary…but pretty much no one will share confidential notes in your personnel file. My attitude is if the charge is not serious enough to press criminal charges it is not serious enough and supposedly confidential to be shared with anyone outside the campus but it might be serious enough (say on a small campus where they can’t separate kids) that one of the two needs to leave the campus.</p>
<p>Mom3, I don;t know if it specifically goes on the transcript, but my look-see does seem to show Ferpa would allows its disclosure. (A disciplinary decision where the accused was at fault are one of the exceptions to Ferpa.) </p>
<p>Exactly and that is bothersome to me. I suspect that the cases that are currently underway where the plaintiff claims discrimination, while probably somewhat true and i agree with Hunt on most of it, are weaker than the cases where the lawyers combed through step by step and basing the case on lack of due process. However the point of Title iX is to remove discrimination, not create discrimination. The schools must be very, very careful how they administrate these cases that have very real and punitive damages that extend past the boundaries and scope of a 4 year education. Again I think colleges and universities have to weigh heavily the fact that the supposed criminal act is not being tried in a criminal setting and weigh the potential threat to the community of the college. The accuser also has the ability to obtain a restraining order, but we rarely hear about that as a potential remedy so perhaps the the majority of options “act” in lieu of a restraining order. Suspensions and expulsions in the case of criminal behavior which has it’s own system of justice should be reserved for the most grievous violations that impact the entire college community. </p>
<p>I think there is a very real difference in cheating or plagiarism and something that meets the criteria for a felony. Absolutely think there is a difference. </p>
<p>I helped a young woman obtain a restraining order. I’d been through the process before with several clients and can say that never have I seen a restraining order granted more quickly or easily, and since the harrassment was proven from other states, the Feds got involved immediately. It was quick and done. Permanent. Mandated to anger management classes, etc.</p>
<p>These two were students on the same campus and the school did nothing. Said girl eventually had to call the local police and have them come onto the campus to get this enforced. The school was unbelievably unresponsive to this stalker/death threat situation.</p>
<p>If that is not a title IX violation? What is?</p>
<p>In the end, the schools have a lot to answer for and a lot of work to do. </p>
<p>I’m not talking about rape in this case. I’m just talking about the fact that they simply don’t want to deal with the fact that they have criminals on campus. And they need to.</p>
<p>Do you believe a girl who received threats strong enough to prompt a federal restraining order should have had to walk around a campus with her stalker? They did.</p>
<p>The DCL dances around “must” and “should” forbidding or insisting on some actions, recommending or discouraging others. Considering the stakes of tangling with the OCR, I would imagine that colleges take “strongly discourages” as a pretty clear don’t do it message.</p>
<p>At some colleges, the accused – or his attorney if he has one and if the attorney is allowed to speak – may be allowed to relay questions to the accuser through the panel, though I don’t think the procedure is specifically spelled out in the DCL</p>
<p>The problem with that second-hand questioning that it cripples the effectiveness of cross-examination, i.e., immediately asking another question that follows up on the first question, further probing the first answer. </p>
It seems to me that this is essentially the same as the cost to any community of providing procedural protections for accused persons. If somebody is acquitted of a criminal charge, he gets to walk around free and unpunished–even if he really did it. This is one of the costs of liberty. Civil liberties are sometimes highly inconvenient–they allow guilty people to walk free, they allow the Westboro Baptist Church to say horrible things, they allow parents to indoctrinate their children into crazy religions, and more. Again, the cost of liberty. College students need to be taught more about that, I guess.</p>
<p>Regarding post #3555:
“If that is not a title IX violation? What is?”</p>
<p>So, what about a student of mine, female, who was being stalked, harassed, and threatened by her female roommate? Is that somehow covered under Title IX?</p>
<p>She was actually beaten up and thrown around by her roommate, a drug user who also stole her clothes and food. </p>
<p>She went outside of the college system, despite it being on campus, and got a restraining order and forced the college to move her to a different room.</p>
<p>As far as I know, the aggressor was NOT charged with any crime and continues to attend the college.</p>