@JHS, I thought you meant at the sentencing phase…after the verdict was reached.
We have often tried to move these discussions forward by attempting to discuss how the college tribunal system procedures could be “tweaked” to provide more transparency and fairness. But those discussions are always short lived. We end up back arguing about their very existence and why they were instituted in the first place.
Some people don’t believe in tweaking.
If Apple never tweaked, Apple wouldn’t exist. 
To @al2simon 's points,
If, for example, the woman in this case claimed the man gagged her with a sock, restrained her, and had unlubricated anal sex without her consent, and two other women previously had described the same situation, but the board had not acted because it was just “he said-she said” on the question of consent to all of the unpleasant elements, by the third time the same pattern of behavior is alleged, I think the board could well consider the prior accusations as evidence of the pattern and as making it more likely that this woman, as well as the previous women, were telling the truth. And even more so if at the time of the second accusation he admitted the conduct and was sanctioned for it with probation. Of course, I have no basis to know anything like that happened here, except it would make the whole story much more reasonable from the college’s point of view.
Furthermore, even if the board did not consider previous or subsequent accusations in determining whether this particular woman was telling the truth about this particular incident, there is no question that it could – and should – have considered other accusations in determining the appropriate sanction, provided it had an adequate basis to believe the other accusations.
I agree that (a) a single investigator process is problematic, and (b) a preponderance of the evidence standard is not sufficient to support a serious disciplinary sanction. But it’s also possible that the investigator’s report in this case was a model of completeness and included all exculpatory evidence, and that any reasonable trier of fact would have considered the evidence of guilt clear and convincing, if not overwhelming. Maybe so, maybe no. We just can’t tell without more information. So I’m happy to question the process, but I don’t leap to the conclusion that this particular student was treated unfairly.
I believe in tweaking.
The problem is that the last “tweak” was done by the OCR over the objection of hudnreds of schools and the people who have live and breath these cases. It’s made the system worse.
The problem is that the OCR has scared the crap out of these schools and so the current process is almost frozen in its current bad state.
The problem is that no school is going to do any “tweaking” and risk the OCR’s wrath. The OCR has made it clear that no dissent will be tolerated.
If you believe in tweaking, then the current state of affairs is horrible.
al2simon, I believe in tweaking continuously.
I can exaggerate too.
Isn’t this an exaggeration?
OCR has written the rules in precise detail so there can be no deviation?
[ quote]The problem is that the last “tweak” was done by the OCR over the objection of hudnreds of schools and the people who have live and breath these cases. It’s made the system worse.
[/quote]
Hundreds of schools did a … job before the government stepped in.
While we’re on the subject of the OCR’s rules, can someone explain to me why mediation is verboten?
As posted in the Owen Labrie thread, now it’s Sidwell Friends–you know, the school the Obama daughters and Chelsea Clinton (and her husband) attend/attended. https://www.washingtonpost.com/local/public-safety/dc-police-investigating-report-of-rape-at-sidwell-friends-school/2016/03/17/9b524470-ec93-11e5-bc08-3e03a5b41910_story.html?hpid=hp_hp-cards_hp-card-local%3Ahomepage%2Fcard Again, there was prior consensual sex between the parties.
Yes and no. The lawyers at ED aren’t that stupid. But once a school has finally settled a Title IX investigation by the OCR, they aren’t going to be revising their policies for a long time.
I think the theory is that schools might use mediation to wear down women and “force” them to “settle” their valid complaints without getting effective resolution or punishing genuine rapists. The presumption is that schools have a conflict of interest … they would rather sweep things under the rug than deal with and report rapes on campus.
Mediation is forbidden because the goal of mediation is always to reconcile the parties, and OCR doesn’t believe rape victims should be forced or encouraged to reconcile with their rapists. It wants colleges to maintain a disciplinary system that communicates to students that rape won’t be tolerated. Mediation is not likely to accomplish that.
The goal of mediation in divorce is not to reconcile the parties, it’s to find a compromise both can live with. In the current case, couldn’t a compromise be reached that the male party never contact the female party? Yale’s a big place, they could never meet. A compromise could be that the male leaves the school until this female graduates, or that he only attends in the summer. Still sends the message that ‘rape won’t be tolerated’ or could send the message that each party is correct (he felt there was consent, she knew there wasn’t) and both parties can still be students at the school. A compromise.
As you said, it is not a criminal matter when the school handles it, and mediation is appropriate in civil matters. If the accuser wants criminal-like remedies, that student needs to pursue criminal forums. Mediation is appropriate for civil matters.
I am not entirely sure that it is the OCR that is responsible for the lack of “tweaking” in the current procedures. For instance the Dear Colleague letter does provide for the presentation of witnesses. Some colleges have decided to limit that:
Further the OCR does not prohibit attorneys from participating in the process:
Colleges have more leeway than they are taking advantage of.
Also, this is the OCR’s justification for the preponderance of evidence standard:
At Yale, a student can ask for an informal investigation, a formal investigation, or a student can decide to use the criminal justice system.
I thought I would post this…
Looks like mediation is available.
Sorry cross posted with @dstark.
I also think many schools work around the “no mediation” rule by having both an informal and a formal complaint process. If the complainant pursues the informal route, s/he knows ahead of time that there will be no hearing and that the sanctions will not include expulsion or suspension. So there is an avenue at some schools to resolve the matter informally.
I also read an agreement between OCR and Yale.
I didn’t see anything about Yale having to use a single investigator to handle cases.
I know that on paper Dear Colleague Letter (DCL) allows for more flexibility. But if you look I believe you will see that (private) colleges are mostly following a handful of templates when they craft their policies. They aren’t blazing new ground in crafting their polices.
In the real world, when an institution is under federal investigation this what they do - they contact one of 3 or 4 law firms that have an established practice in Title IX investigations. Coincidentally, many of the law firms with the top practices in these areas have hired former OCR officials or their spouses as highly paid partners :). They give you a pretty good idea of what’s going to fly with the agency (that’s why you’re paying them - if what’s on paper is all that matters, then of course any lawyer can read DCL). Mostly, there are 3 or 4 templates that the OCR has blessed in the past when other colleges have been investigated. The college picks one to use, the law firm customizes it some and then submits it as part of their settlement proposal to the OCR. The hope is that since the OCR has already blessed this policy with another college, it’s one that they will approve again. But you shouldn’t fool yourself - unless you want to go nuclear, you’re at their mercy as to whether or not they accept your settlement proposal.
You stray outside of this path at your own risk.
The “single investigator” model is one of the templates that’s been blessed by the OCR. That’s the one that Yale picked.
Remember that many of the well-known (private) colleges have had these policies essentially imposed via settlement with the OCR to conclude an investigation. It wasn’t like they were able to craft the policy that they thought was best at their leisure.
For example, I think it’s fair to say that there’s a reasonable consensus by many posters on this and similar threads that “clear and convincing” is a better standard to use when dealing with expulsion cases. Many (private) schools believe this too. The OCR will absolutely not allow this.
For the issues of presentation of witnesses and attorney participation, it is hard for me to believe that the OCR would move against a school for including those things when the right to do so comes from their office. Those 2 things alone would add substance to the proceedings. And some school’s already allow presentation of witnesses.
@al2simon, I appreciate the real world analysis.
Yale expels something like one student a year for sexual assault. It’s not like Yale is kicking out students left or right.
Yale wants to keep its 99% graduation rate or whatever it is. 
I read Yale’s reports. There aren’t that many cases pending. Maybe, instead of 1 student getting expelled a year, with a preponderance of evidence standard, it will be 2 or 3 students expelled a year. And maybe the students who are expelled are guilty. Not in court though. We are not talking about criminal courts.
OCR explained why the preponderance standard should be used. Post 191. You don’t like that explanation?
No, I don’t. Here’s why I think their logic if flawed -
In their Dear Colleague letter of 2011 they require that schools use the preponderance of evidence standard. To support 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.
Do you have a rebuttal to my analysis?
Yes, I agree with you. But I have no objections to expelling rapists. They should expel every single one. Seems like the problem is that they might be expelling too few. That’s not right either. But let’s make sure we’re punishing the right guys, and let’s make sure we’ve got good procedures.
However, that’s not the point you raised previously. The questions are 1) did the “tweak” that resulted in the current system create a better or worse system than the old systems? 2) does the current system allow for colleges to steadily “tweak” their system to be more effective? I think the answers are “Worse” and “No”.
Perhaps you know different, but I’ve never heard anyone claim that the current system has resulted in fewer sexual assaults occurring.
Honestly, I think the under-reporting problem is the biggest problem.
I thought the OCR was talking about their administrative hearings not civil litigation in their explanation of the standard of proof. What am I missing?
Added: the OCR Case Processing Manual at quick glance appears to pertain to internal hearings they are conducting.