“most competent civil lawyers who have some experience in administrative law can look at the hearing models used by the colleges and point out the weird stuff.”
It’s through the looking glass. You won’t believe it if you see it.
@HarvestMoon1: I don’t mean to suggest that every school used Clear and Convincing and switched on anticipation of the DCL. My point, and I think Ohiodad51’s point, is just that looking at a snapshot of standards the same year but before the DCL, and thereafter, won’t tell you much. You don’t know whether the DCL was just piling on a trend or whether schools acted in anticipation. Either way I’m not sure that it makes a difference. I look forward to your later response.
@JHS: There’s a middle ground in emergency protective orders. They’re usually issued by police on receipt of a complaint and require the accused to keep away from the accuser. They’re nonpunitive and just meant to keep the status quo–and everyone safe–until the courts get around to it. If a person is claiming sexual assault there’s nothing stopping the police from issuing an EPO, except for someone telling them they need to.
I think it might make sense if a higher standard were applied when expulsion is considered. But there would still be complaints about those sitting in judgment. And it’s still tricky in that there often aren’t first hand witnesses, a problem for both sides.
JHS makes s good point about the results of levels of standard, though I’m not sure we know lowering would lead to more accused found guilty and expelled. There are many intermediate actions.
There’s a difference between what I am proposing and an emergency protective order. (Which, by the way, in many places still requires a judge to issue it.) The emergency protective order is in place only unless and until challenged. Although as a practical matter they are rarely challenged – and rarely even acknowledged by the person subject to the order – in theory they are temporary, and would be relatively easy to challenge on evidentiary grounds. They are also notoriously hard to enforce.
Colleges issue the equivalent of emergency protective orders all the time while a complaint is being processed. We aren’t talking about that here. I believe it’s common, however, to make such protective orders permanent as part of resolution of a complaint if the accused isn’t suspended or expelled. It’s much easier for colleges to enforce restraining orders than it is for police to do it, because the colleges have the option of suspension or expulsion.
As for majors/courses and dorms next door: I think it’s within reason to kick a kid out of university housing and university dining halls as part of a remedy, and it’s certainly within reason to move him into different university housing. If course conflicts are too much of a problem, suspension may be necessary, but it certainly ought to be possible to deal with course conflicts without suspension in many, many cases.
I think it’s within reason to tell him that if he finds himself inadvertently in violation of the restrictions he must prostrate himself on the ground and not move until the complainant has left, however long that takes. It’s within reason to tell him that there are certain places he can’t go for any reason without an escort and advance notice to the complainant. And it’s absolutely within reason to suspend or to expel someone for deliberate violations of a restraining order, or even for a pattern of supposedly innocent violations of an order that could reasonably have been complied with. It will be much easier to develop clear and convincing evidence of restraining order violations than of lack of consent to sex.
T IX includes changing housing, if needed. And iirc, expects the college to willingly support course changes or adjustments, if needed, to avoid contact.
I agree with @Demosthenes49. I don’t know what his or her experience is, but have extensive experience in litigation involving administrative rule making and cases under the regs themselves, both on the government and industry side. In the usual case, industry knows where the government is heading at least a couple years out. The idea is to get out ahead of it because the first round of investigations/violations is always, always draconian to make an example. It is just the way it is. As I said up the thread, this situation is different because there was no rule making, just the advisory letters, but I would bet a fair amount that s whole lot of policies changed in the year or two before the first DCL.
Think about it this way, if the preponderance standard was the norm, why not go through the rule making process? It makes no sense. And FWIW, there have been dozens of DCLs issued, it is one of the supposed functions of each agency to provide guidance as to the rules that exist. It just so happens that we only talk about the few which cover this area, because they are outside the normal process.
@Hanna, if what we read about is in any way the norm, no doubt.
@JHS: I see no reason the EPO couldn’t be disclosed to the university to ensure compliance. I’m not aware of any jurisdiction that requires a judge to issue an EPO, rather than a TRO, but I’ll take your word for it as my knowledge is hardly encyclopedic.
As for talking about it, I understood your concern to be accusers feeling unsafe because the accused was walking around campus. How is an EPO not responsive to that? Unless you’re talking about pre-determination punishment–kicking students out on just the word of another–or hiring them full-time bodyguards, I don’t see another way to do it. Of course this would be temporary, until the adjudication. Afterwards the judge can issue a No Contact Order, fairly common at least in CA, upon a finding of guilty. Nothing should happen on a finding of not guilty.
The remedy for finding yourself in the same place as someone subject to a restraining order is that the subjected person has to leave. They do not have to prostrate themselves. That is ridiculous.
I don’t disagree with no-contact rules. It would probably solve a huge amount of these communications issues. My only disagreement would be about how they might be implemented…it might be easier to move the accuser or move the accuser’s schedule around depending on what year they are, where they live or where they are in their major - doesn’t really matter, I do think a college or university can effectively rearrange kids that “don’t get along” while they determine what is really going on. It might take a few days and any financial ramifications should be on the uni. If I had to move a kid off campus within a short amount of time, I’d want pro-rated reimbursement for expenses to date, plus hotel costs until an apartment could be located and that sort of thing or if they had to take an extra semester because they were shut-out of a senior level class due to the accuser, I would not want to pay tuition and housing costs for an additional semester based on an unproven situation.
If an accuser is truly needs to avoid seeing the person being accused they should be willing to go along with whatever remedy works best for both students until an investigation and due process runs it’s course. If it’s SO BAD then the accuser needs to go to the police, needs to get a “real” restraining order etc. needs to make a case for jail and expulsion from society (and the uni)… otherwise in my mind it’s on the university to be fair to both students financially and contractually. Innocent until proven guilty and all that nonsense. I think colleges and unis are perfectly capable of managing these sorts of housing, academic scheduling and bursar office issues.
Colleges and universities are just screwing it up like so many things these days.
It’s a really common complaint by women that men ordered not to have contact with them nonetheless seem to pop up all the time in public places where they are, and are either slow to leave – and of course the women do not want to talk to them to tell them to leave – or leave but the women don’t know where they have gone and worry that they may be hanging around. So, yes, I proposed something ridiculous and humiliating, with the idea that it would induce men to be more careful about strict compliance.
My bigger point is that there’s a lot of difference between occasional humiliation and expulsion. Humiliation is not a life-wrecker.
Unless he’s innocent and being unjustly accused, prosecuted, and found guilty for something he didn’t do that’s now a part of his permanent record spirals him into a depressive state. You can only readmit a boy if he’s still alive after the suspension period ends.
“It’s a really common complaint”
Yep. Humans are just a fallible bunch. I have a client whose accuser got a school-level no-contact order, and then he kept discovering her in his apartment with his roommates, forcing him to leave his own space. Another client was expelled in large part for violating a no-contact order by liking a social media picture of a large student organization (his accuser was in the picture). We don’t always make the smart choice.
No-contact orders work a lot better at Ohio State than they do at Swarthmore. LACs with one dining hall are tough.
@Demosthenes49 – I was thinking that the number of school’s using PPE prior to the DCL would matter in view of our previous discussions on the APA — in the context of whether the DCL is considered guidance or new regulation. But in thinking more about it I also conclude that it doesn’t really matter what the time frame was, so long as they were already using PPE when the April 11’ DCL was issued.
But regardless the DOE was on record as early as 1995 as stating that the PPE was the required standard for resolution of Title IX complaints. It was the standard schools were being held to. If a school was not using it the DOE would put them on notice - usually in the course of an investigation. Here are 2 such notifications/settlement agreements after investigations indicated the wrong standard being applied:
Georgetown’s in 2003 is pretty straightforward and Evergreen’s in 1995 is incorporated into a settlement agreement (pg.12).
http://www2.ed.gov/policy/gen/leg/foia/misc-docs/ed_ehd_1995.pdf
If my daughter were sexually assaulted, we would go straight to the police. Sorry, but I would never trust the math teacher and the head cook - with their insufficient Title IX training - to handle the matter satisfactorily.
I would love to see a breakdown of what this level of Title IX compliance costs, including challenges and appeals, and how that translates into the ever-increasing tuition students pay.
She could report to the police and to the Title IX office at the university – depending on the facts and evidence surrounding the hypothetical assault she might see results coming from only one of those reports.
That’s fine, as long as you understand that if your daughter were sexually assaulted in the circumstances that apply to most sexual assaults by college students, the police would handle the matter with a cursory investigation and the responsible prosecutor would decline to prosecute. Victims tend to go to Title IX officers because they have a much greater chance at vindication there, with procedures that are much more comfortable and convenient for them.
Which creates a huge potential problem. A male subject of a criminal investigation is unlikely to cooperate with a college tribunal, a fact which will be held against him by the college. We have seen several reports of cases like that, I am sure @hanna knows of dozens of others.
Maybe that is because “most sexual assaults by college students” aren’t actually sexual assaults. Maybe both parties should be responsible for drunk sex. Maybe regret sex is not the guy’s “fault”. Shocking concept perhaps, but worth some thought.
And this is the issue. The college tribunal system is not set up to punish criminal conduct or really to deter assault as that term has been defined for the last several hundred years. It is designed to help people, predominately women, who feel victimized or powerless. Not saying that this is necessarily a bad thing, but unless you understand that fundamental point none of this makes even the remotest bit of sense.
@HarvestMoon1, you continue to try and argue that the DCL is rule makinig. It simply isn’t. Even OCR admits this. There are very clear rules to follow in the rule making process, none of which were followed in this instance. And to say that nothing has changed in the OCR’s focus on this issue since the 1980s is contradicted by every fact we have available, from the number of schools under investigation to the statements by the OCR iteself.
I would prefer to say that most sexual assaults in the world, including college, would be difficult to prove beyond a reasonable doubt to a jury under U.S. criminal trial procedures. You can quite reasonably say “then they aren’t sexual assaults,” but that’s a little circular. I am sure there are plenty of events that could be considered sexual assaults if all of the relevant facts were known and provable, but in any particular situation only a small portion of the relevant facts are known, admissible, and proved. And prosecutors don’t like putting their careers and reputations on the line for cases they may lose, unless it’s a huge cause celebre.
“I am sure @hanna knows of dozens of others”
Several, not dozens, but you’re right about the problem. Prompt resolution of the criminal investigation is the reason why fewer accused students are in this catch-22 where they can’t defend themselves in the college tribunal. Most of the time, if there is a complaint to law enforcement about a campus assault, the police will do some investigation and then drop the matter because there’s no hope of finding proof beyond a reasonable doubt.
All that said, I encourage every accuser to go to the police immediately and at least give it a shot. The record of the complaint stays there even if it doesn’t move forward.
Speaking of circular . . .
My point is that many of the reported incidents do not fit in to any known legal definition of sexual assault. Does that mean that sexual assault do not happen? No. Does that mean that sexual assualt is not difficult to prove? No. It means what I said. That women should be responsible for decisions they make when drinking, and that finding out you regret having had sex with a person is not the same as saying you were assaulted.
And I continue to object strongly to the intimation that police and prosecutors don’t care about sex crimes. I know many of those people. The people who prosecute and investigate rapes and sexual assaults want to put rapists in jail. It is what they do. This idea that the police and the prosecutor are bad actors because they don’t act like some of these tribunals and randomly punish guys so the alleged victim feels better is flat out nuts.
I think what we’re seeing trending in the past four years is a more vigorous defense for accused. Unfortunately not every family can back financially a vigorous defense with the university or the complainant so I have no doubt there are still accused students taking an expulsion on the chin and then trying to figure out a way back into college when there may not have been a vigorous investigation or even a complaint that reaches the level where the expelled is a threat to the campus deserving of expulsion and that bothers me. There are reasons in our society where people need to be removed from the society and the judicial system is set up to handle this. There is civil court for individuals and companies and classes of people who have a beef with each and the punitive damages are set up to reflect the situation. Expulsion should be a mighty high bar for universities to consider and not something done on a 30% certainty.
I think that claimants and accused need to understand the severity of the situation and while male college students are getting the message, I’m not always convinced that the claimants understand the seriousness of the chain of events that they may be instigating. I’m sure the woman in the Yale suit never thought she’d be deposed, never thought she’d be a part of an ongoing court case that will take years. And you know she’s an integral piece of the lawsuit even though she’s not a defendant and never instigated the claim on her own. Imagine the cases where the person actually filed the original claim and those potential legal implications. I don’t think this Title IX business is good for our young women or our young men (although I tend to argue the accused side) because it does not really explain the potential legal issues of going down that path as a young person. I, as a woman, personally would hate to put a young woman in that position but I would absolutely use every avenue available to assist one of my sons should I feel the claim was lacking in validity and I wonder sometimes if those potential outcomes are ever articulated to the claimants. So kinder, gentler, more comfortable, more convenient? I question people who defend Title IX on that foundation.