@HarvestMoon1, I think I am missing your point re sexual harassment. I don’t think I ever said that Title IX doesn’t cover sexual harassment. What I am saying is that the tribunal system is far better positioned to deal with claims of harassment, as that term is commonly understood, than it is criminal or quasi criminal conduct like assault. I think part of the problem is the conflation of the two.
But @Ohiodad51 we have to deal with the terms as the law and schools define them at the moment. I have no idea what it would take to go back and start re-defining the definition of what constitutes discrimination under Title IX. You want to remove sexual assault from coverage under Title IX- am I right?
Really OhioDad5’s feelings that suspension and expulsion require a stricter clear and convincing adjudication bar than 50.1% (or 30% if you believe the potential math at some universities) should be mandatory. Mandatory reporting and working in cooperation with local police on assaults that meet the criminal standard would add transparency AND supoena power and eyes-on that are not affiliated with the college and university. I don’t think this conflicts at all with the intent of Title IX. I could have confidence in colleges and universities handling no-contact orders, mediation, counseling and education among other remedies for couples with relationship issues that don’t meet a criminal standard.
The lawsuits tend to center on poor procedural processes that infringe on contractual obligations as well as the the low standards involved in adjudication. I agree with FIRE that neither accusers nor the accused are well served if Title IX continues to be interpreted to force colleges to investigate and adjudicate these crimes themselves. That system has failed. It absolutely behooves us as a nation to wrap our mind around definitions like harassment, sexual assault and rape. Most people shape that based on criminal law which is accepted. This isn’t about whether the intent of Title IX is good or not…the problem is in implementation by the universities and the general lack of understanding of what behaviors constitute behaviors egregious enough to warrant expulsions and suspensions IN THE ABSENCE of criminal investigation. I also think that universities have taken some liberties with Title IX and are operating on the presumption that it is for the protection of women, leaving men standing on a teetering precipice and presumed to be the “one” responsible for the dynamics of a sexual relationship. Clear and convincing for violations of conduct that are egregious enough to have expulsion or suspension on the table and police investigation along with fair and equitable processes that are equal for both parties and don’t break contractual obligations will go a long way to bringing clarity to that situation.
If universities and colleges can’t get their on their own, then the courts and state legislaters will continue to nudge them in those directions. My feeling is the DOE and the OCR got the colleges and unis into the jam and time will tell if their actions will be upheld or modified. There will be no losers even if the the guidance to colleges and universities changes as it has brought issues to the forefront through the media stories and dialogue.
Well, that is a complicated question. I don’t think you can or should remove sexual assault from the scope of Title IX. But I do think that the burden placed on schools to “do something” about sexual assault is too high.
Agree.
No, that’s not what Judge Smith is saying at all, in the passage quoted above. That would be a traditional standard for appellate review. He’s more or less specifically rejecting that role: It’s not deferential review of fact-finding, it’s no consideration of facts at all. It’s not review of the the Title IX law, it’s interpretation of the explicit and implicit contract terms between the university and its students. The court is limited to determining whether the disciplinary procedure provided was within reasonable expectations at the time of the incident. That’s nothing like an appellate review of the disciplinary decision itself. Which is what “This Court is not a super-appeals court for sexual misconduct cases” means.
“Then there is an absolute right to have a judicial review of the administrative decision.”
To reiterate, the facts I recited were undisputed. The accuser did not allege any physical force or threats, just repeated requests.
“There is probably a lot more to it if it went to an administrative hearing.”
You asked if I’d practiced in this area. Have you? If the accuser wants a hearing, there’s going to be one.
@HarvestMoon1: Some schools may use outside investigators. As I said, that actually isn’t the part that concerns me. So long as the investigator has the training it doesn’t really matter who employs them. The adjudicator is an entirely different story. That person needs to be independent to avoid the pressure on the schools imposed both politically and by the DOE. The use of panels of school administrators, even with some minimal training,
@collegedad13: Under writs brought pursuant to CCP 1094.5, the court is limited to substantial evidence review. The court is also limited to the administrative record, except in extreme cases, so any limits on bringing in evidence stick around. You’re right that this is, in some senses, a review of a college’s tribunal, but it’s far from the kind you’d get in an at
"You asked if I’d practiced in this area. Have you? If the accuser wants a hearing, there’s going to be one. "
That is not what I asked. What I asked is below
"I assume you are not a tort lawyer nor have you ever tried a PI case in front of a jury. Please correct me if I am wrong "
No I have not practiced in the area of Title 9. I believe you when you say that if the accuser wants a hearing they get one… That is no different than if some one wants a hearing on a domestic restraining order they get one.
I have tried a number of cases in front of a jury. The problem is if the University does nothing and something happens they will be sued if they were put on notice.
Also I am sure that the facts are more than a couple lines. As an advocate you need to take a side and be a strong in your convictions which you are doing. But one needs to see the complete file in order to make an informed decision
I love to read arguments among lawyers. I don’t understand any of it, but the word duels are very entertaining.
@Hanna – can you elaborate on this because that is not my understanding either. At least with some schools I thought there was a “stop gap” where the accuser’s complaint is reviewed first before a hearing is authorized to proceed. I am in the process of reviewing the policies of the 8 schools that have found their way on to my own son’s final college application list. I tackled NYU last evening and it did have a review process before a complaint could proceed to a hearing:
After an initial assessment by the Title IX coordinator an investigation takes place first using an external investigator:
Since everything including a pat on the arm appears to be a potential violation I’m hard pressed to understand what they wouldn’t pass through to the tribunals. Look at Hanna’s example. They had a relationship she agreed to something and later called it coercion. Good lord not to be cruel, but she could have bit him and stopped it if she wanted to. Coercion requires threat or force by definition. If it were truly coercion she could have taken care of the situation pretty easily. Now he’s looking for another place to go to college.
There ought to be a very narrow window to file these Title IX complaints - a month at the very longest in my mind. And there needs to be a very real threshold to NOT adjudicate e.g. could the complainant have reasonably avoided whatever happened. That would take care of a bunch of this nonsense.
“I have tried a number of cases in front of a jury”
And you’d take a case where the sole allegation was that the plaintiff said yes to oral sex because of repeated requests from a boyfriend? In what state and under what theory? Where have you seen a plaintiff collect on facts like that?
You keep falling back on the idea that there have to be other ugly allegations in the file. Nope. You might notice that I use my real name and picture here, so my livelihood is at stake if I’m making things up.
“can you elaborate on this because that is not my understanding either.”
Sure, there’s usually a layer of review before a hearing written into the rules. But – even assuming the school follows its own procedures – when the evidence is “he said, she said,” how often can the investigator conclude that no reasonable fact-finder could believe one party over the other? That’s the “beyond a reasonable doubt” standard. I guess you could meet it if you had proof that the complainant was out of town at the time of the alleged attack or something.
I went back and took a second look at NYU’s model and it actually is a very interesting one. I think that a model like this could dispose of claims that simply cannot be supported. It might make sense for other schools to take a look at it.
In NYU’s model the investigator actually completes the full investigation before it is allowed to progress to a hearing. So the investigator meets with the parties, gathers evidence and interviews the witnesses with the dual intent of clearing it to proceed and preparing a report for the panel if does proceed.
So I can think of circumstances where every witness interviewed does not support the complainant’s version of events - perhaps she came back to the dorm loudly proclaiming “she just had the best sex of her life” and more than a few people confirm those comments. If the investigator is unable to locate any witness or evidence that there was harassment/assault how are they going to meet the standard of " a reasonable fact-finder could determine there is sufficient evidence to support a finding?" With that standard I don’t think they can.
Making that initial determination outside of a hearing with a preponderance of the evidence standard could be helpful in the sifting of these complaints.
I think the standard should be based on more than a preponderance of evidence. It’s too easy for an ex- to get back at a boy with our current system.
“I think the standard should be based on more than a preponderance of evidence. It’s too easy for an ex- to get back at a boy with our current system”
This post has a lot of victim blaming going on it. Wow. The Brock Turners of the college world need to be removed before they can do more harm
Wasn’t Brock Turner tried in front of a court and not a college tribunal, and didn’t that court use clear and convincing as the standard?
“And you’d take a case where the sole allegation was that the plaintiff said yes to oral sex because of repeated requests from a boyfriend? In what state and under what theory? Where have you seen a plaintiff collect on facts like that?”
Before you take a case you need to talk to the client for a lengthy period of time. You may need to interview witnesses. In my experience it is never three simple requests. Was the boy drunk? Was he high? What was the context of the statements. Did the Victim feel threatened in her own mind?
Before you take a case you also have to evaluate damages. In the work setting the type of behavior you describe may result in actual damages. The woman may have to change jobs. I am not sure what the damages would be in the college setting. You also have to evaluate collectability of damages. Even if there are damages in the college setting they may not be collectable from an unemployed male student. Not all victims have civil monetary remedies.
“Wasn’t Brock Turner tried in front of a court and not a college tribunal, and didn’t that court use clear and convincing as the standard?”
He had a criminal trial and he was expelled from Stanford. Criminal trials in California use beyond a reasonable doubt standard
I have attached a copy of the victims statement
Beyond a reasonable doubt standard, eh? So that standard has no problem keeping the Brock Turners of the world away from colleges.
So why use a preponderance of evidence in college tribunals, if keeping out the Brock Turners of the world is the goal?