@al2simon, I see what you are saying regarding the OCR’s justification for the preponderance of evidence standard.
It seems to me though that they are simply illustrating that this is the standard consistently applied to violations of civil rights law - both administratively and judicially. They used those 3 cases to draw a parallel between Title VII and Title IX claims. I assume they did so because both are based on sex discrimination.
I agree with you that the court’s validation of that standard was made in the context of civil litigation with all the due process protections. But I do not believe you can litigate Title VII cases until you have exhausted your remedies under the EEOC’s administrative hearing process. Only then will they give you a “right to sue” letter. So those 3 cases originated and were unresolved in an EEOC administrative hearing first, where the PPE standard is also applied. The OCR interprets the court’s holding as confirmation of the use of that standard in the prior administrative hearing, and contends that the standard has to be consistently applied to hearings under Title IX.
I struggle with the standard but do wonder how much difference a somewhat higher standard would actually make in those cases that a decision was reached to expel.
I think the EEOC hearings are relatively informal and an attorney is certainly allowed but not required - you can choose to appear pro se. And yes, I think one is entitled to conduct discovery, present evidence and witnesses. But with the exception of direct cross examination of witnesses and of the parties by each other, the Dear Colleague Letter does address those things.
While the universities are permitted to allow attorneys to participate in the hearings, I certainly understand their decision to refrain from doing so. It presents all sorts of issues relating to cost and the inequities that would result for those students who could not afford representation. But that decision does put a damper on things like formal discovery and presentation of witnesses. That doesn’t mean that those things don’t occur at all, they are most likely just really informal. I concur that this is an area that needs some work, and one that the OCR should be receptive to given the language in their letter.
If the Yale Report of Complaints is any indication of what is transpiring elsewhere, the schools appear to be successfully resolving a large volume of complaints without incident. And doing so with few actual expulsions. So while there is certainly room for improvement, I am reluctant to label the current state of affairs as “horrible.” On this forum we tend to discuss the outliers that garner all the press, so the failings that exist are amplified.
1)yep, there are parallels between Title IX (pre dear colleague letter) and Title VII. Courts frequently analogize between the two.
2)The difference between the preponderance standard in an EEOC hearing and in a tribunal is that the EEOC hearing does not directly apply a sanction. I think that is a big difference, especially as I have said before, with regard to suspension or expulsion.
3)I think the clear and convincing standard would make a huge difference. I assume everyone involved agrees, since so much effort has been made both by the colleges (primarily Harvard and Princeton) to protect the clear and convincing standard and OCR and their hundreds of investigations to enforce the preponderance standard.
4)You are kinda right about EEOC (and OCR employment) hearings. They are fairly informal, a lawyer can represent you and interact directly with the investigator. But, there is no right to discovery at the initial stages (seeking a finding of potential discrimination/right to sue) and there frequently is no real hearing. Sometimes the investigator comes out to interview individuals, sometimes they ask for narrative summaries. Honestly, EEOC investigations look much like what we see called out in the rules of many of the tribunals. Single investigator models, very broad discretion. But again, no actual sanction is on the table at that stage with the EEOC or OCR.
5)The problem with allowing lawyers, discovery and cross examination in to the process is that you can not get a little bit pregnant. Allowing the participation of counsel means the rules are going to have to be rewritten everywhere. These hearings will take much longer and be more contentious. In the immortal words of Warren Zevon; “Send lawyers, guns and money. The blank has hit the fan.”
6)I think you raise a good point about the cases getting disposed of in the informal process, and agree that should be encouraged. The problem facing OCR though is similar to the problems facing the administration with Obama Care. Because of the way the policy change was effected (by letter rather than through the rule making process in this case) the OCR is hamstrung in trying to enforce “tweaks”, because if they go ahead and start trying to make specific rules, everything they have done to date will be on the table, since administratively and legally, there is really a blank slate here.
@HarvestMoon1@Ohiodad51 - Thanks for the background on EEOC / OCR employment hearings. Sounds like the level of due process is between that of college hearings and civil litigation (but closer to the informal side). The hearings may be informal, but I think the key point is the one that @Ohiodad51 made - no actual sanction is on the table. This is an enormous difference - really, no one would care about how much due process college hearings provided if no actual punishment could be imposed.
Because of this, I still think it’s clear that OCR engaged in procedural cherry picking when mandating the preponderance standard.
I think it’s a vital issue. I’m sure many expulsions occur when there is a clear cut case. I don’t have any problem with those.
But that isn’t the question. The question is - did the change from the clear and convincing standard to preponderance of the evidence make things better or worse. And by definition, the cases punished under the new standard that wouldn’t have been punished under the old standard are those where the panel assesses the odds that the guy is guilty as being less than 75% (the clear and convincing standard, roughly).
It is almost tautological that these are cases where there is reasonable evidence that the guy is actually not guilty. And I think this is part of the reason why in recent years we’ve been seeing many more cases where it appears that guys were unfairly expelled.
Honestly, I’m completely flummoxed by this. How on earth is this a success? If the problem of rapes on campus is as bad as many people think, why should anyone view “resolving a large volume of complaints without incident” or “few actual expulsions” as a success? If anything, it’s a sign of failure. The only way I could see someone viewing this as a “success” is if either 1) they think the processes are horrible at finding the truth, so they don’t want to see harsh punishments given very often, or 2) they think most rapes on campus are in some kind of gray zone where mixed messages about consent were given.
To me, the two important measures of success are:
Having fewer sexual assaults occur - particularly serious ones
Having a process that effectively determines the truth so that we can appropriately punish those who do commit sexual assaults - in particular, expelling any guy who rapes someone.
Back to the mediation issue for a moment: When I said the goal of mediation was to reconcile the parties, I obviously didn’t mean that literally in the case of divorce mediation. But the goal of divorce mediation is to assist the couple in resolving issues of property division, child custody, and support, and to have them reach an agreement that is more or less satisfactory to both of them. Mediation will not address questions of fault (unless fault affects the parties’ economic rights, so they have to bargain around that). Mediation does nothing to deter people from divorcing; in fact, it probably (very marginally) makes divorce more likely by making it more palatable and less expensive. It’s almost axiomatic for mediation that no one gets labeled the good guy or the bad guy.
That’s not what OCR wants from university sexual assault policies. It wants malefactors punished. It wants to deter sexual assault. It doesn’t want pressure put on victims to agree to some satisfactory deal with sexual predators.
@dstark, Yale offers mediation, but it is required by the OCR to also offer an adjudicatory process, which is assumedly @JHS’ point. FWIW, I agree that the premise of forcing mediation in situations of actual assault, rather than misundertstanding or hurt feelings, is wrong.
However, the obvious conundrum faced in trying to argue that Yale’s policy is really more reasonable than it appears by reference to the incidents handled through the mediation process and the fact that they don’t throw out a lot of guys is that either 1)there are far fewer than one in five women actually being assaulted on campuses, or 2)the tribunal system is ineffective and you should be arguing for even more draconian measures. You gotta pick your poison.
So expelling someone because someone else has a grievance is acceptable? If the accuser doesn’t deem it criminal then yes, it is a grievance and if expulsion is on the table, the university has an obligation to be way more than 50.1% certain that the accused has done something so egregious, so alienating of the entire campus that the college must break their contract with that student. It should not and never should be a “kinder, gentler” way for students to get retribution. As someone somewhere pointed out, technically in this case, the incidence where the accuser woke the accused up from oral sex, the accuser could be deemed in violation of the very rules that she brought to bear on the accused - non-consent…unless males somehow have a way to consent when they are sound alseep and remember this was in a statement that was confirming the few facts that both parties agreed to. That alone, if there were no other facts agreed to by both parties would smell a tad like discrimination against the male. Her only excuse would be “well he seemed to enjoy it and he didn’t tell me to stop or push me away once he woke up.” Yuck.
“Sexual assault” is now being used to describe everything from an unwanted fondling on the dance floor to so-called “forcible rape.” I would suggest that many of those episodes might be resolved better by mediation. And by “better” I mean better for both: the accuser gets to tell the accused exactly how the actions made him/her feel, and the accused is educated about the human consequences of actions that they might not have thought were a big deal. An apology and acknowledgement of harm would likely go a long way in some of these cases. Terms can be agreed upon, including responsibility to avoid meeting, confidentiality, and so on.
When I say “mediation,” I am thinking of something that incorporates a restorative justice model.
In no way suggesting that mediation is appropriate for violent crimes. Although restorative justice could be part of it if the victim wishes.
And, if way back when–or even now–someone penetrated me without my consent I wouldn’t want to mediate.
The ONLY reason anyone know why Montague left Yale is because his father told the media, his teammate demonstrated by wearing special warm up shirts and another friend went to the media.
Hopefully you would have had enough sense to have called the police Jonri. Yale has classified it as “sexual assault” and that is a crime. I have to wonder how they got to assault from they were together then apart then got back together for the night in question to assault that she did nothing about for a year and horrendous enough that they felt he was a danger to the campus and expelled. It won’t add up I guess til the facts and evidence are on the table. The discovery depositions ought to be interesting reading for the legal teams if the Montague’s go forward with this.
@momofthreeboys, I also wrote about a murder victim’s family. They didn’t want to go to trial. Human nature. We all don’t think like you. React like you.
The murderer got 6 years in a plea bargain. If my mother was killed, I think I would want to go to trial, but who knows?
You sound like my mother. Rigid. There is one way of doing things and that’s it.
@dstark
Can you make your points without using passive aggressive zingers to the person you disagree with? You have called people insane, threatened to stalk, told a woman you don’t think she should have the right to vote, and are now telling above that she is rigid like your mother … this is sounding like sexual harrassment…