Harvestmoon this is from your linked article and I think they are points well taken
“Some victims’ advocates, however, worry that turning a campus hearing into a courtroom could replicate the same perceived pitfalls of the legal system that have led many victims of sexual assault to turn to Title IX in the first place.”
“Laura Dunn, executive director of SurvJustice, a victims’ advocacy group, said that that the involvement of legal professionals in Title IX hearings is a good thing, but that lawyers should not participate in the actual hearing. They should remain in an advisory role, said Dunn, who is herself a lawyer who attends campus hearings on behalf of victims.”
Collegedad13, they can also start with attempting to get an injunction even before an appeal. There have been some colleges who have not allowed an appeal (bad move) and some that the appeal is so perfunctory it’s nothing but a “sorry no” despite additional evidence. It’s a highly flawed system. As far as lawyers, of course advocates don’t want lawyers…that seems self evident. Why would they want someone keeping tabs on the legalities :-).
@HarvestMoon1: As many stories posted on this board attest, it is not true that outside investigators are always used. I’m actually not too concerned about that. Police are often partial and there’s no real reason they shouldn’t be. It’s not their job to judge cases, it’s their job to determine whether there’s a triable case to hand off to the DA (though in this instance they may be the same person).
@prospect1 you are correct that most criminal and PI cases are settled. I think the number is around 95 per cent. However the cases that are tried are almost always tried by a jury. I would point out that there is a lot of dislike among consumers regarding mandatory arbitration and what is referred to as class action waivers. Think of this in the employment setting . If a worker was repeatedly asked for oral sex and said no until they gave in or quit would that be actionable? It very well could be. It depends on some of the other facts
@collegedad13: A person’s relationship with their employer is precisely nothing like their relationship with a boyfriend.It is ridiculous to think there can be a meaningful comparison between the two.
momofthreeboys I think you are confusing a few things. There is the administrative hearing at the college. Then some colleges have appellate tribunals for their administrative decision. Then there is an absolute right to have a judicial review of the administrative decision. Hanna I am sure is very familiar with the process and could speak volumes on this. Finally I would point out that many courts will not review administrative decisions until there is an exhaustion of administrative remedies.
@collegedad13 - that’s a lot of litigation. Exhausting all of those layers of administrative remedies only to start over in the real court system if one is unhappy with the result (on either side).
$$$$$$
Meanwhile, the vast vast vast majority of women are not currently enrolled in college. They get stuck with the criminal justice system when they are assaulted. Wouldn’t it be better to spend all that money, all those resources, beefing up the system for ALL women, not just the tiny percentage, the very privileged few, attending college?
There isn’t anything remotely like an absolute right to have judicial review of a college’s administrative disciplinary decisions. Lawyers have been creative in establishing a right to go to court if the college procedures were contrary to legitimate expectations or fundamentally unfair. But that’s very limited review, and nothing like actually reviewing the facts and legal judgments made to be certain the correct result was reached consistent with other cases. If colleges are careful with their procedures, their decisions are practically unchallengeable.
@Demosthenes49 we are looking at relationships in different environments. A relationship in the workplace can cause a whole host of problems for which relief may be needed by the victim. For example say a woman is harassed by her boyfriend at work. The question is always what did the employer do in regards to the harassment and when did the employer know about it
A colleague begging a woman for oral sex in the workplace is actionable.
A boyfriend begging his girlfriend for oral sex is annoying but should not be actionable, if the begging was all verbal and involved no physical force.
These two examples are apples and oranges.
Again, do you see the woman in @hanna’s example as a “victim” of a sexual assault, if the facts related by Hanna are accurate?
@Demosthenes49 no not all schools but many do --Brown which is the school involved in the case this thread addresses utilizes an outside investigator. They conduct the initial investigation, interview the witnesses and present the report to the hearing panel and both parties before the actual hearing takes place.
I know at least one school has the outside investigator - who is a lawyer - make a recommendation to the panel. Not sure how many schools use that model.
A school’s procedure manual will tell you if they use an outside investigator. I have certainly not done a tally but have seen many policies that have that model.
@prospect1 there is not enough information to tell to what extent the woman was a victim. One would need to review the entire file. What exactly was said, how it was said, where it was said, etc. There is probably a lot more to it if it went to an administrative hearing.
@HarvestMoon1 what the courts will generally tell you is they review the applicable law applied “De Novo” and they review the factual determination for “an abuse of discretion” That appears to be what Judge Smith is saying
Yes @Demosthenes49, I agree with you. I do think there is a place for a quasi administrative process on campuses to address conduct that is not generally unlawful. But I believe we agree that is not the system we currently purportedly have.
@harvestmoon1, generally when people structure their argument around statements like “your argument is” I assume they are attempting to frame the issue. That is not an uncommon position. As to the substance of your critique of what you perceive my position to be, I will say that I have posted repeatedly what I think a fair hearing would look like. I believe in a professional investigator, an arbitration style panel (although I would accept a professional mediator), fair time limits for both sides, the right to call and question witnesses and the right to present evidence. I also think the preponderance standard is ok up to anything less than a suspension, but for a suspension or greater the standard should be clear and convincing.
Next, I disagree that “we don’t get to define sexual harassment”. Of course we do. How do you think laws are written, except with the input of interested, knowledgeable parties? In fact, that is precisely what the administrative rule making process is designed to do. The lack of such a process here has contributed greatly to the muddled definitions and lack of clarity in the process.
Lastly, I am sorry to speak frankly, but you clearly do not understand the rule making process. To the best of my knowledge, every lawyer who has posted on these many threads has explained that the DCL is not authorized rule making. The OCR itself has said repeatedly that it is not. I don’t know what else can productively be said on that point.
@collegedad13, I don’t think @Hanna practices, but I have tried dozens of tort cases in a wide variety of states. No court with which I am familiar operates in any way shape or form similar to what we see reported. That is the acknowledged purpose of this tribunal system.
There is no automatic right to appeal a decision made by a college disciplinary tribunal to a court. What do you all think the last five years of litigation have been about?
@Ohiodad51 my point is that Title IX has already defined it by including both in the definition of the discrimination that the statue prohibits:
As far as I know all schools have adopted this definition and it is included in their student conduct codes and manuals. I also believe the DOE views sexual assault as included in the broader term of sexual harassment.
I have never claimed to be an expert on rule making – I have never encountered it in my practice. In fact it was you who explained it to me in a post a few months back. My own recollection in a nutshell is that your objection was that the provisions of the 2011 DCL were never put out for pubic comment and thus were just imposed on the schools. It is my understanding that there actually was a period of public comment way before 2011 that dealt with many of the provisions of how hearings should be conducted. I don’t know what form that took but will dig a little deeper. And it may be that you are right - I may just be incorrect – no shame in that as far as I am concerned. YMMV.
And I honestly do not recall you ever taking the position that you would support college tribunals but perhaps I missed those posts. I am on and off the forum like everyone else.
To add to all of ohiodad51s excellent point is the problem that you can’t reform what you can’t see and unfortunately colleges and universities are very secretive about their tribunals. The only light of day that these complaints and processes ever see is if they get into a court of law or one side or the other invites media attention.