I know this is a bit off topic but have others read this BBC article? I just cannot believe a lawyer can go on record saying these things anywhere. Just unbelievable!
“Colleges are in the unique position of having students live, work and play within their boundaries and thus creates different responsibilities.”
If you think about it, this really isn’t true.
Take the Jameis Winston case for example. Guy and gal who don’t know each other meet in a public bar. Don’t know that the other is a student. Don’t meet through a class or some other college activity. They take a cab to a privately owned apartment complex where the incident happens. The university really has nothing to do with (or control over) the incident. It is completely coincidental that the guy and gal are enrolled in the same XL-sized school.
At most colleges, only a minority of the students live in dorms on campus. Students live, work, play, party etc. on and off campus in a wide variety of public and privately owned places. They mix with lots of non-students in their daily lives. We don’t we impose this type of responsibility on people who operate the hotels, restaurants or apartment buildings that students frequent, even though those places are often where these incidents occur. We also don’t impose this type of responsibility on the towns in which these schools are located.
Although the courts bought the argument years ago, it is a real stretch to think that title ix was ever supposed to apply to sexual assault at all. Certainly not intended to apply in the way that OCR thinks it does.
@momofthreeboys thanks for the explanation.
And, going back to the original topic, has there been any update about this innocent young man who, unfortunately, resembled the rapist but found out to be unrelated?
You make an interesting point NWy, at least as it applies to very large colleges. Yet the counter arguments are many. First, campus sexual assault is not just at a problem at XL colleges but at little schools where most live on campus. It also does not reflect well on a school if its athletes are behaving badly, even at off campus bars and even if they are not convicted of rape. Freshman are most likely to live on campus and, according to research, more likely to be assaulted. The bar, while not on campus, was a college hang out. Colleges also require kids to adhere to rules that the real world does not, particularly in the area of behavior.
Hotels certainly have a responsibility to protect their guests, but do not have special rules and would call the cops.
Title IX may apply if a school creates an atmosphere in which women feel harassed and unsafe due to inaction on the part of the college to the extent that it interferes with their education. The way the OCR letter is requiring it to be implemented seems to go way beyond that in some cases. Again, all we know if what we read and it may be as said above, that most schools are actually do it correctly.
@northwesty: Title IX means that students/faculty/staff are entitled to surroundings that are free from sexual discrimination and harassment. If sexual assaults are simply swept under the rug, that runs afoul of that requirement.
@AlapinVariation, rather than choosing between “beyond a reasonable doubt” and “preponderance of the evidence,” in previous related threads a lot of posters promoted the “substantial and convincing evidence” standard of proof. It’s more demanding than preponderance, but less demanding than beyond a reasonable doubt.
@cardinalfang: I think the process in court of law with a judge, jury and two lawyer is substantially different from a the process of a college sexual assault committee. The judge gives the jury specific instructions and restricts certain evidence if it’s unlawful or biased. The jury is vetted for prejudice. Both sides’ lawyers can cross examine and call their own witnesses. The defendant would be assured of his due process rights and the verdict would not use a preponderance of evidence standard.
Am I just cherry-picking cases that fit my viewpoint? Maybe, but until we can get our arms around the statistics – how many felony level sexual assault complaints are being lodged with the colleges, who’s lodging them, what decisions are – I think it’s important to use these actual cases as examples of the weak points in the OCR mandated procedures.
@dstark, I agree that there’s a lot to criticize in the FSU’s and Tallahassee police’s handling of the Winston case. I can’t make it any clearer that I’m NOT condoning their behavior. I agree that Erica Kinsman was treated badly.
But a the same time, I’m not sure that I agree that Judge Harding deserves the degree of criticism that he’s received even if we don’t like his decision. He was a former Chief Justice of the FL Supreme Court, appointed by a popular Democratic governor. He came into the picture in September 2014, almost two years after the alleged rape incident and wasn’t responsible for the bungling up to that point.
I think his statement explaining his reason for not finding Winston responsible is sincere and thoughtful. According to FSU’s president, Harding “reviewed more than 1,000 pages of documents and took testimony from Mr. Winston, Ms. Kinsman and 10 witnesses before ruling there was not a preponderance of evidence to support her allegations.” We’ll hear more about this as Erica Kinsman’s case against FSU unfolds, but for right now I’m withholding judgment on Harding.
@Hannah, I’m not sure that I agree that the 94 colleges that the OCR is investigating is “heavily weighted toward well-known, highly selective schools and flagship public universities.” It seems to me that list covers the gamut of size, prestige and selectivity. I wish the OCR would be more transparent about the reason for the investigation, whether due to a complaint or generated by the OCR itself. Also, the decision to pursue a complaint lies with the OCR. All complaints are not taken up, but we don’t know which are and why.
http://www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-institutions-open-title-ix-sexual-violence-investigations
We are just now seeing the impact of the OCR’s earliest investigations, which did, indeed, focus on some high profile schools – e.g., Harvard, Penn. Consequently the schools were forced to revise their procedures to comply with OCR regulations, most notably in shifting to the preponderance of evidence standard, but also in other accuser-friendly areas. I would think this would mean that we’ll see more cases in which the accused is found responsible, but it’s too early to tell which way the wind is blowing.
@dfbdfb, Would you happen to know if your college’s sexual misconduct board (the people who adjudicate violations) are the same people who provide counseling and advocacy to alleged victims? I don’t doubt their good intentions, but to me, this is a form of inherent bias. I don’t think anyone wants sexual assault cases to be “swept under the rug.” My position (shared I believe by several other posters) is that college’s should not be adjudicating felony rape. The folks at Penn’s Law School lay out the reasons:
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/19/open-letter-from-16-penn-law-school-professors-about-title-ix-and-sexual-assault-complaints/
This was in today’s Cavalier Daily. Obviously from opinions I’ve made earlier I’m in favor of mandatory reporting for felony assaults. I do think the college can provide confidential counseling for students that do not want to press any charges or have their charges adjudicated for punishment, because I do not think there should be two avenues for punishment of crimes. Crimes should be handled by colleges in lockstep with criminal investigation and prosecution. It’s good for the colleges and universities and it’s good for the students to have crimes investigated and prosecuted and it’s good for the greater community.
Momrath, you wrote this…
Then the preponderance of evidence standard may be good enough. That 50.1 percent is not that easy to achieve in he said she said cases. If cases are decided in a similar fashion as the FSU case, the guys have nothing to worry about.
I have written many times the guys are going to win the 50/50 cases.
If evidence is destroyed, a case with a preponderance of evidence or more can end up a 50/50 case. If Witnesses don’t testify, a case which which would have a preponderance of evidence or more can end up a 50/50 case.
In 50/50 cases, the accused wins.
A prospective law…
Here’s another way of stating my concern about the standard of proof: No matter what standard of proof you use, there will sometimes be a miscarriage of justice and an innocent person will be punished. When you move from “beyond a reasonable doubt” to “preponderance of the evidence” you are insuring that a larger percentage of the people you punish will be innocent. It is inevitable. That is unacceptable to me when the potential punishment is serious as (in my judgment) expulsion from college for rape is.
Hunt, do you want 90 percent in favor of the accuser now before you kick somebody off campus?
“@northwesty: Title IX means that students/faculty/staff are entitled to surroundings that are free from sexual discrimination and harassment. If sexual assaults are simply swept under the rug, that runs afoul of that requirement.”
DFB – I’m going with Harvard Law School Professor Elizabeth Bartholet (as quoted in the WSJ) on this:
OCR’s policy is not required or consistent with title ix.
OCR’s policy, in hindsight, will ultimately be looked at as a “time of madness.”
Harvard, in time, will be deeply ashamed of itself for having gone along with what OCR has mandated, which is clearly wrong.
I think that pretty much sums up my thoughts.
There are 21 million college students in the US. Looking at the Clery reports from colleges where we’ve got data, we’re seeing that even medium-sized colleges like Yale have a few sexual assault reports year. But let’s be really conservative, and say that colleges average one sexual assault report per 20,000 students per year. Over five years, that’s ~5000 assaults reported. You can conclude nothing whatever from cherrypicking 12 or so cases from the (conservatively estimated) 5000 cases reported over five years. Cherrypicked cases aren’t examples of anything but how to cherrypick.
Yes, Hunt I agree with you - the fact that expulsion and a record that could preclude someone from furthering their education is serious enough that it warrants presumption of innocent. I have no problem with the one/thousandth of a percent and honor code juries for honor code violations with punitive action less one semester suspension commencing at the beginning of the next full semester. Even in other honor code violations related to academics, I think colleges better be darn sure of what they doing and to whom. A flip of the coin is not really enough except for the smallest of transgressions.
I’m not sure what you mean, exactly. I think I’ve said before that I don’t necessarily think that colleges should have to find guilt beyond a reasonable doubt before taking even serious disciplinary action, but there’s quite a distance between that standard and a preponderance of the evidence. Indeed, a lot of colleges use something more like “clear and convincing,” which is an intermediate standard. How many innocent people are you willing to expel in order to increase the number of guilty people expelled? This is really the decision you are making when you change the standard of proof.
Hunt, Not many…
You skipped over the clear and convincing standard in post 511. If you use the clear and convincing standard instead of reasonable doubt, you are going to expel more innocent people, right?
Right. But I recognize that expelling somebody from college is not as serious a sanction as putting somebody in prison, so I have less problem with that standard. What I think is essential, though, is an understanding that a proceeding to punish a person is different from a civil dispute between two people, and thus needs a standard that guards against potential bias and protects the innocent.
Ok…I don’t necessarily disagree with you.
The standard is preponderance of evidence and there is a case. It is tried. Not only is the preponderance evidence standard met, but the case is clear and convincing.
Are you ok with expelling?
If there is a preponderance of evidence standard, and the accused loses, this doesn’t mean the accused lost by 50.1 to 49.9%. It could be 100% to 0%.
Should there be different punishments depending on how sure the judge is about the case?
That’s a good question, and it is probably how it really works in the real world. However, recall how upset people were at the revelation that U.Va. hadn’t expelled anybody for sexual assault. People want more expulsions. How to get them? The cheap and easy way to get them is to make it easier to convict the accused, and to increase the punishments. But is that the right way? And is getting more expulsions an effective way to get less sexual assault on campus?