All UVa frats on suspension

[Cardinal_Fang]

Personally, although I very much disagree with the direction the OCR went in, I can’t argue with the big picture - a solid kick in the pants was required and delivered. I really wish they would have exercised their leadership more thoughtfully. It’s hard to reverse the bad policy aspects once there’s a lot of momentum.

Other than the standard of evidence, what bad policies do you object to from the OCR letter?

[Cardinal_Fang]

From the [Inside Higher Ed letter](https://www.insidehighered.com/views/2011/10/28/essay-ocr-guidelines-sexual-assault-hurt-colleges-and-students) al2simon linked to:

A woman, in speaking with her resident adviser, revealed that she had had sex with another student several days earlier. They had both been drinking. He invited her to his room and she went, enticed by the promise of more alcohol. Once there, he proceeded to kiss her, then do more, while she, according to her written report, “felt uncomfortable.” Twice he stopped what he was doing and left her on the bed, once to turn on some music and once to get a condom. He also took a phone call in the middle of everything. She remained on his bed, thinking, “This is not really something that I want to do.” She acquiesced to his request that she assume a certain position, that she do certain things to him. “But I really didn’t want to.” When he was done, he offered to walk her back to her dorm, and he did, saying goodnight to her and promising to see her the next morning at breakfast (which he did).

A week after she filed her report with us, beginning the process of charging him with sexual assault (she was, after all, drunk, and never verbally consented to any of his requests), a friend of hers came to us with a very similar report. Almost identical, in fact.

This is why California is going to a standard of positive consent for campus sex. Regardless of whether you think this male student raped either of these two women, everyone would be better off if he had tried to get explicit consent first. Does he really want two different women in one week to think he raped them? I kinda think that if I looked at all the details I’d conclude that the women weren’t raped, but if that were my son I’d be full of shame. Having sexual intercourse that the other person doesn’t want is disgusting and despicable even if it’s technically legal.

[alh]

^yes. leaving aside the definition of rape, this is not how we want our sons to behave. And if we teach them this is unacceptable, that boys don’t get to touch till girls say “no,” I really think we can change accepted societal standards of behavior.

I think we should be teaching the second graders: No kissing without permission. We do our sons a huge disservice when we act like this is cute behavior. FeministMom talked about male aggression. We do our sons a huge disservice to let them grow up believing male aggression is acceptable.
imho

[al2simon]

I like this comment! Are you aware of current instances of faculty misconduct?

alh - In my former role I had a lot of power on paper, but one downside is that everyone is very careful and deliberate in their interactions with you. No one would confide something like that to me. As a senior executive, I’m very well aware of how hard it is to get accurate knowledge about what’s going on in the guts of an organization. I will confess that occasionally I took a group of undergraduates out for beers so that I could check some of the administration’s claims (not about sexual misconduct though). Don’t worry, they were all over 21

Agree that the norms are better now. But there are also a lot more women graduate students around to harass. I know that a female doctoral student who files a sexual harassment claim is probably completely trashing her academic career. If you believe that faculty predators intentionally prey on the most vulnerable then they would be targeted and we’d probably never know.

[marie1234]

I’m aware of some but it doesn’t involve any women and when I asked why no-one said anything the response was that the people involved like the benefits and no-one else wants to devote their college career and possibly longer to this issue and they probably figure it would be a losing battle, anyway. Keeping quiet and rolling their eyes occasionally is easier. And, that’s all I have to say about that. too.

[al2simon]

Other than the standard of evidence, what bad policies do you object to from the OCR letter?

CF - I think I’ve said most of what I think but it’s probably scattered across the thread. Maybe one day I’ll write a consolidated list of all the policies I would enact if I were king. I just need to get 60,000,000 registered voters to agree to elect me. I’m still working on getting vote number 2

[alh]

al2simon: I agree it is impossible to know. It’s just interesting to me because I see acceptable standards for faculty conduct as having changed dramatically during the last few decades, while acceptable standards of fraternity conduct changed hardly at all. And then I have to wonder what the difference is?

Well, marie, I wish you would elaborate. Are you saying the cases you know of involve male graduate students being harassed or assaulted?

[marie1234]

No, but pressured and rewarded is probably accurate.

[Cardinal_Fang]

al2simon-- Because you almost always say things I agree with, I wanted to know your insider’s opinion of the Dear Colleague letter. I looked back to some of your previous posts. Here, in a reply to me, you wrote:

@al2simon

Colleges have an independent responsibility to ensure a safe environment for their students, so I agree there should be some process for removing dangerous students from campus even if a criminal conviction can’t be obtained.

What I think is a bad idea is to not give accused students basic due process – access to legal advice, ability to review & challenge evidence, even examine their accuser, as painful as that might be. If we couple the absence of these basic protections with a low “more probable than not” standard and add in the fact that colleges have no expertise in trying cases, then we are bound to get a complete mess.

The other problem I have is that in most cases the penalty is suspension for a year. It’s rarely expulsion. If a student raped another student, I’d want them in jail and certainly not back on campus in a year. Something seems really wrong here – it’s as if the colleges don’t believe their own findings.

What I’m seeing here, and what I remember from other of your posts, is that you’re objecting to what is NOT in the Dear Colleague rather than what IS in the Dear Colleague letter. That is, other than the preponderance of the evidence issue, you’d prefer that the colleges were required to offer more due process to accusers and accused. What I remember from everything you’ve said is that the Dear Colleague letter doesn’t forbid the process you’d like, but doesn’t require it either.

[alh]

responding to marie: #4407

I don’t know any professors who would find it acceptable to be in any kind of sexual relationship with a graduate student taking their courses or under their direction. If colleagues knew, it might be social (if not professional) suicide. I can’t remember the last time any professor I knew was in a relationship with a student. Those students are married to those professors and they have grandchildren. I know a lot of professors.

I don’t know everything. That is for sure.

How many cases like this do you know of, marie?

[sevmom]

Two of my roommates married professors. One marriage was short lived, the other has lasted for decades (he was 11 years older than her). She was on some kind of work study in his department, I think helping with his research but honestly can’t remember all the details.

[al2simon]

CF - Here’s a few more things I wrote about what troubles me (sorry for the length and the duplication. Not all of it is directly responsive to your question - probably only the 3rd one is, but it’s easier just to cut and paste). Mainly I don’t subscribe to the view that the OCR is as hands off as they pretend to be when it comes to what the schools’ actual policies are. They don’t claim the authority to dictate because they don’t have it. But they did put 55+ schools under investigation and I’m looking at the results that came out.

I stress the due process problems. I think the lack of attention to due process was a big mistake. It’s a legitimate and important criticism. It’s taken what could have been an opportunity to build consensus and turned it into a divisive issue, losing the full support of many good and reasonable people. I would call this a failure of leadership, and not a small one. I think almost every organization instinctively knows that if 55% of the people have to drag 45% of the people in a certain direction then they’re asking for big problems. Our government doesn’t seem to understand this.

Bluntly, I think it’s clear that they want a higher disciplinary rate. That might be the right result but if we can’t do it fairly it’s hard to have on your conscience. I suspect that if we were to add in what I consider to be basic due process protections then our knuckles would get rapped hard. No one really knows how to measure levels of intoxication way after the fact and asking colleges to do this feels like asking the impossible. I sometimes feel like the marginal changes serve to punish the fundamentally OK guy who’s made a mistake while not doing much to get rid of the true pigs.

Thus, I focus on the convictions that would be obtained under a 50.1% standard that would not have been obtained under the “clear and convincing” standard. To me, these are precisely the most ambiguous and hardest to decide cases, where weak due process is most likely to be a big problem.

But the problem isn’t that the president of Harvard is too dumb to understand the concerns that her own law school faculty has raised. The problem is that in order for the Title IX investigations to be dropped, the OCR has mandated that new sexual assault procedures be instituted, and they’ve strongly intimated that these procedures should substantially lean towards making it easier to obtain convictions.

In theory Harvard could just run a hypothetical new policy by the OCR, but there’s lots of indirect evidence that that would not be productive. Schools like Harvard engage former DOJ insiders/their spouses/close relatives to advise them on what is likely to be well received. Also, the due process concerns are not exactly a secret. There are literally hundreds of articles raising objections. A reasonable person could infer that the OCR has already frowned upon prior proposals which had stronger due process protections.

Here’s one public example of the kind of logic the OCR has used - In their Dear Colleague letter of 2011 they require that schools use the preponderance of evidence standard. To support this this extension of their own authority, they cite court decisions that have mandated this standard for civil litigation under Title VII. Even if you grant this analogy, just think about it for a second. These court decisions did mandate the preponderance standard, but only in the context of court proceedings where both sides had the right to an attorney and there was a full discovery process, right to confront and cross examine witnesses, public proceedings, not to mention trial by jury (in at least one case), an independent judge, and the right of appeal to a different court. The OCR chose to pluck out ONE of these facts and impose them on schools’ procedures, completely ignoring the other protections that are also part of courts’ procedures. If the OCR is going to claim that procedures of civil litigation are binding then they should take ALL of them. To me, it’s completely flawed logic and clearly results oriented.

[Cardinal_Fang]

Thanks very much, al2simon. Is it fair, then, to say that you object to

• the preponderance of the evidence standard: you think it was put in expressly to get more convictions in murky cases where convictions really shouldn't be gotten?
• the missed opportunity to gather a consensus that more due process ought to be required, and to require more process?
• the behind the scenes iron fist, that you believe militates against stronger due process even though the text of the OCR letter seems to allow more due process?

I wonder about the financial cost of strict due process requirements for all schools. Brown and Harvard are sloshing in money, and can easily hire private investigators to investigate claims, hire lawyers to represent each side, pay for training, dedicate employees to the task of shepherding this due process through the system, etc. But what about some little LAC with 1000 students and not much money? Is it possible that while elite schools are in favor of more required processes, little struggling colleges are privately saying “Please don’t require this, we don’t think we need it and we can’t afford it”?

[al2simon]

CF - not exactly my opinions. Here’s what I would say

1. I think the preponderance of the evidence standard was put in expressly to get more convictions. I’m not saying that the motives were to obtain “convictions that really shouldn’t be gotten.” But that ends up being an effect. As king, I would have first focused on dropping the hammer down in cases where there was clear evidence of serious offenses. This is my #1 thing. Schools were way too reluctant to expel. I think that would have been more effective at changing campus culture and would have been supported.

2. Building in more due process rights into their procedures would have made this a much less divisive issue and would have marginalized some extremists who now have a voice

3. The behind the scenes iron fist, that you believe militates against stronger due process even though the text of the OCR letter seems to allow more due process - yes, more or less. Trust me, if the OCR had written one or two sample policies with best practices as far as balancing rights goes, the schools would have been all over it. General counsels throughout the land would have rejoiced. Nothing would have made them happier than to have a model they could copy without getting in trouble.

Costs issues for the small LAC are a concern. It’s not the school profile I’m familiar with but I can’t argue with your point. However, they are paying for training already and are hiring and dedicating employees already. I’d only ask that attorney representation be always allowed, not paid for by the school, at least for cases where suspension / expulsion is on the table. And I know you can hire retired state/federal judges to hear cases for a few hundred an hour. Maybe it’s cheaper than losing the money on the back end in law suits though? This isn’t the area to be pinching pennies. Something they could think about.

Also, in Yale’s case with 5000+ undergraduates I think they only have a few suspensions /expulsions every year. A lot of the increased spending is only required for these kind of cases. I’d want to think this through better.

[momofthreeboys]

I don’t understand why colleges didn’t categorize sexual misconduct into first, degree, second degree, third degree etc. like many states. If they assigned categories with well defined descriptions and published damages it would probably make the whole process go smoother. Perhaps only one category of sexual misconduct involves expulsion, it has a higher standard of evidence and lawyers can be involved etc.

[Cardinal_Fang]

I’d point out that there are a lot more struggling LACs than there are schools of the caliber of Harvard and Brown. My son, in his checkered college career, was briefly at a little LAC. Great little place in many ways, but it was obvious that they needed to stretch every nickel five ways. And his school is a lot more representative of all schools than an Ivy. I’m by no means saying that more process shouldn’t be required. All I’m saying is, OCR should consider the needs and resources of all schools, not just Ivies.

And I also have concerns about allowing but not providing attorney representation. That in some cases leads to the situation that has already been complained of in some media coverage: Worthington W. Worthington III rapes Maria FirstGen at his frat. She reports. Worthington’s dad flies in on his private jet with his high-powered flimflamming lawyer. Maria’s single mom can’t take off from her job as a grocery clerk, and there’s no money for a lawyer, so that slimy Worthington gets away with his assault. Lawyers for both, or lawyers for neither, I say.

[sevmom]

These kinds of allegations would surely effect middle class families ( of either males or females) as well in terms of attorney representation. A guy may not qualify for a free legal defense and may not have parents who can afford it either. A young woman could have wealthy parents or qualify for free counsel or have an advocate help with costs. There are numerous scenarios out there. I would not be surprised if "Jackie’s " family has not had to pay hefty legal fees to deal with the fallout from the Rolling Stone article but not sure .

[TV4caster]

@momofthreeboys

I don’t understand why colleges didn’t categorize sexual misconduct into first, degree, second degree, third degree etc. like many states. If they assigned categories with well defined descriptions and published damages it would probably make the whole process go smoother. Perhaps only one category of sexual misconduct involves expulsion, it has a higher standard of evidence and lawyers can be involved etc.

In general I think I agree with this on an initial intellectual level. But…(you just knew there was a but, didn’t you) what someone thinks is one category of misconduct is very likely a different category to a victim.

For example: differentiating between digital and penile penetration; which orifice constitutes what category; etc
Personally, I agree with the expanded definition of all orifices and all objects constituting rape.

I agree there should be a difference between rape (or felony sexual assault) and more minor sexual misconduct.

As one final aside: I don’t see the case of the girl who went along with sex, despite being uncomfortable (but not saying no) as being a definite case of rape. It obviously depends on how much coercion was involved (and how drunk the girl was). From the sound of it it sounds more like regret sex. Even in “yes means yes” states there is a provision for something like “or in lieu of affirmative actions”. I would say being sober and not saying that she was uncomfortable, while getting undressed or performing actions (whatever it was) is probably affirmative action.

I certainly hope my son wouldn’t act like that (or my D’s BFs) but I find a case like this different than a case where someone is incapacitated and unable to say yes.

[sevmom]

I would also wonder about cases that were deemed even " first degree", and the accused got some punishment , maybe admitted to some inappropriate behavior , but did not have legal representation. It seems it could open up pursuing further criminal or civil charges if the complainant was not happy with the outcome. I think we’ve already discussed examples where someone was not happy with the results of the college proceedings.

[bearpanther]

Re the case referred to by TV4Caster and linked by Al2simon, I was struck by the way it was presented by the writer.

By one reading, this man could be a serial rapist with an MO of luring his victims by offering alcohol, a walk home and breakfast the next day.

By another, these female students may have colluded in their accusations (the stories being nearly “identical”) in order to get extra time from professors to complete their coursework.

I would be interested in knowing how this all ended.

Personally, if taking what the writer reported as “truth”, it is difficult for me not to see a man expected to be a mind reader (the accuser “thinks” and “feels” but does not “say” anything, and responds affirmatively to requests from the male) and a woman who had multiple times where she could have ended the encounter due to feeling uncomfortable and yet did not, for no apparent reason.

I realize none of the above matters in a college setting, as she was drunk. Or maybe it would, as she does not claim incapacitation, and in fact details her participation.

I would be surprised if this would hold up as a crime in a court of law.