Men have the same rights under Title IX. There was a woman recently expelled for sexually assaulting a man who lived on the same floor in her dorm. Yes, it goes both ways.
HarvestMoon, Actually, Brock Turner was just used as an example by Collegedad13 as to why we need a preponderance of evidence standard in college tribunals. But, it is quite clear that we do not need a preponderance of evidence standard to keep away the Brock Turners; beyond reasonable doubt works just as well. Each complaint is indeed different, and the ones that really rise to the level of criminal sexual assault (like Brock Turner) can easily be handled by the courts (and in fact SHOULD be handled by the courts so that the punishment fits the crime). The courts will use the beyond reasonable doubt standard, and that works well as evidenced by the case of Brock Turner.
The others are the ones the college tribunals are trying to catch, and for those you have to use a lower standard as the criminal justice system won’t recognize them as criminal acts, just like you said earlier, because they are not. For example, consider two 25 year olds who are out of college both getting drunk and having sex, and then one of them making a complaint of rape. It wouldn’t stand a chance in any court of law, not in front of any jury.
So why not openly say that? That college tribunals are there to catch acts that are not criminal but are still unsavory, and that’s why we need a preponderance of evidence standard?
Under criminal law those acts are indeed criminal – your example is an alleged rape. Problems of proof and prosecutorial discretion get in the way. Prosecutors want to take cases they think they have a good chance of winning-- their win/loss record is important. Not saying they don’t have good intentions or don’t care -that is just the reality.
I am sure you have seen the stats on how few cases are prosecuted.
Alleged rape is just that, alleged. It’s not a crime unless a court of law decrees that way. I disagree that it is a case of lack of proof and prosecutorial discretion. Even if there is 100% proof with multiple credible witnesses that are unchallenged by the accused, that these two hypothetical 25 year olds out of college both got drunk together, had consensual sex (though legally unable to give consent), and then one person regretted it and alleged rape, I do not believe any court of law would decree that it is a case of rape. Please tell me if you disagree. Hence, I would say that the act which was alleged to be rape is not actually rape, and hence not criminal. Prosecutors won’t bring such a case, and they are doing the right thing, as precedence has just as much if not more value as the law as it is written. So why blame them?
Now, colleges want to catch such cases. I get that. That’s why they use the preponderance of evidence standard. I get that too. But please, let’s not call it a crime when it clearly isn’t. Badgering a girlfriend of oral sex is not a crime either. But you may claim, and I would agree if you do, that it is bad form to badger or have sex with a drunk person, and I would have no problem if folks guilty of such acts both male and female are kicked out of college.
Well you are kind of appointing yourself judge and jury there and then drawing a conclusion.
The way you define what behavior is criminal is to look at how criminal law defines it. Whether the allegation is proven or not is something different - but certainly an allegation of rape becomes a criminal matter if the individual decides to report. How far the complaint proceeds is another issue all together.
I am not entirely sure how I would classify badgering – I also am not sure whether any school’s policy would consider that actionable. I think “coercion” is the applicable term under most policies. I have mixed feelings about “coercion” as well and am still thinking about that one.
“Well your kind of appointing yourself judge and jury there and then drawing a conclusion.”
Isn’t that the beauty of pontificating on the internet? 
"The way you define what behavior is criminal is to look at how criminal law defines it. "
I wouldn’t argue this point, as I am sure you know this already, but laws in the books are not the be all and end all. How they have been interpreted by the courts in the past is far more important. Please tell me, would any of the two 25 year olds in my example be ever be convicted of rape in your opinion, though technically they both raped each other? I would really like to know what you think here.
To me, it seems that a majority of the cases that go in front of college tribunals, even if backed by 100% proof that is admissible in a court of law, would not result in a criminal penalty. There is a bunch of drunk sex and regret sex, with or without coercion. I am sure that makes kids (mostly the female ones) feel horrible. I am OK with the colleges kicking out the counterparty (typically male) when there is a case of coercion, kicking out both if they were both drunk, but I would throw out the cases of regret sex without coercion or intoxication involved. (Yes, I am again playing judge and jury on the internet.)
But I wouldn’t call them criminal acts. I believe no court would ever find them to be criminal acts. YMMV.
“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””
Funny you mention that. I’ve got an expelled student who was able to prove a same-night text exchange between the accuser and her friend: “How was he?” “Really good!”
But it’s not that simple. She said months later that on the night of, she wasn’t ready to process what had happened, she was embarrassed to have been assaulted, she wanted to impress her friend, etc., so she didn’t mean it when she said it was good. So not only was this proven statement insufficient to avert a hearing, it was insufficient to prevent a finding of responsibility and an expulsion.
Since there’s no subpoena power in these college tribunals, my client only got that evidence because the accuser’s friend voluntarily provided it. It wasn’t enough to save his career at that college, but it may help him in other contexts. Who knows what evidence – exculpatory or damning – is missing from other hearings?
That, lack of investigation, along with the apparent acceptance of re-framing of a situation after months and years, and inequity of some of these proceedings are two reasons I cannot support the lower standards for suspension and expulsion in college tribunals.
Just remember, T9 is about the college response, as a community drawing young people (and for education.) Victims are still able to choose to report to police. Even if a student bypasses the college, once informed (in whatever manner,) the school has obligations.
Yes, it may lead to expulsion. Or suspension. Or not. But it’s that ‘community.’
If anyone hasn’t read Title IX or the Dear Colleague letters, they lay out many of the points usually argued. Not a hard read at all.
+1 on actually reading the Dear Colleague Letter. It would help put to rest many of the misconceptions about how these hearings are supposed to be structured and what the goals are. Agree that it is not a tough read:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
The problem is two fold in my mind…the implementation of the mandates which is questionable and now being challenged plus the inability of some colleges and universities to follow their own procedures which is also under pressure in the courts. The Dear Colleague Letter is what it is for the time being, but the college reactions, implementation and the outcomes have reasonable questions of legality. It behooves all parents of college age kids to understand the ramifications of this, the good, the bad and the ugly and how it pertains to their particular kiddo’s campus. No one wants their kid caught in this. No one hopes their kid will be caught in this.
@HarvestMoon1: I took a look at that data in your post #13 when you posted it, and have looked again now. I see that in the latest report, in most cases Yale found sufficient evidence, that Yale imposed immediate no-contact orders, and that those no-contact orders continued even if the complaint was withdrawn. Contrast this with the earlier years in which Yale did not impose no-contact orders for withdrawn complaints. I read that as Yale coming under pressure. Do you have a different interpretation?
@lookingforward: I’ve ready the DCL. In some senses, what it actually says doesn’t matter because the concern is how it’s being carried out. In another sense, the DCL is itself the issue, so saying that it discusses some of the points we also discuss doesn’t help any. It’s the DCL being argued against.
Thus, ‘the beauty of the law.’ And the frustration.
But for lurkers or concerned parents, the different perspectives argued here should not substitute for reading the documents themselves.
I honestly don’t think reading the DCL would help lurkers or concerned parents. The DCL is a suite of options from which schools can pick. Or not. Any concerned person needs to read the respective school’s procedure. That doesn’t mean the school will in fact follow that procedure, but it’s as close as anyone can get beforehand.
Yes Demosthenes49 - reading the DCL does nothing to help parents understand what is happening on their particular kiddo’s campus. Students (and parents) need to understand HOW the college or university is implementing the regulations. That and understanding the Cleary data should be required reading.
I “watch” our two flagship universities and this is something MSU just released. I would suspect many colleges and universities are publishing documents that would be of interest to parents. This campus as around 40,000 students and there were 461 complaints, double the previous year. I have not seen a report yet from UofM come through in my google alerts.
http://titleix.msu.edu/_files/documents/msu-title-ix-report-print-layout.pdf
If you read Title IX or the 2011 DCL and find them clear or “not a tough read” then speaking frankly you are doing it wrong.
Plus, from a technical point of view clarity is not the only problem. Specificity is. For example, what does “must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation” actually mean? How about the requirement that there must be “grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints”? The DCL says that “adequate, reliable and impartial investigation of complaints” is one of the “factors” OCR will weigh in determining compliance. But no where does it say how heavily it will be weighed, or how OCR will balance the six listed factors, or whether other unnamed factors will carry equal weight. It states that investigators and hearing officers should have training, but with the sole exception of forensics, doesn’t say how much or if what type. Not only is the guidance laughingly vague, but all of this is being done in so far as possible in the shadows, so there are very limited opportunities to test and refine these standards to help ensure fairness.
Using another unrelated example, the First Amendment says the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”. Pretty simple read, but several hundred years of jurisprudence have been devoted to teasing out what it means.
@Demosthenes49 – my purpose in posting the Yale data was to try and bring some balance to the constant implication that men are being expelled/ suspended right and left for sexual assault on college campuses. My impression is that this is not accurate. Also I think the data helps address your issue that the schools feel pressure to respond in a certain way.
In the data I posted for the last 3 reporting periods I focused on the formal complaints since they are the only ones where an expulsion/suspension is an available remedy. I see 2 expulsions for sexual assault and 1 expulsion for voyeurism. There is also 1 suspension. I also see 1 suspension for stalking and 1 suspension of a faculty member for harassment of a postdoctoral student who was threatened with retaliation if he or she filed a complaint. There are many more “findings of insufficient evidence” than there are expulsions and suspensions. So the PPE standard is not opening the floodgates from what I can see.
On the “no contact order” cases you will note that there is no “finding” which means there was no hearing. The complaint however was withdrawn – it appears to me it was done so in exchange for the continuation of the “no contact” order. Depending on the facts I do not think that is a bad resolution.
These may be helpful to some of the readers
https://www.aclu.org/know-your-rights/title-ix-and-sexual-assault This is from the ACLU
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf This is from the DOE Office of Civil Rights
I’m not sure anyone has postulated that men are being expelled right and left. I do think people, including me, have pointed out that in the cases that are exposed through media and through the lawsuits that colleges lose (like the UofM Sterrett case) that some colleges and universities have not done a great job at adjudication. Expulsion and suspension are very, very serious things and colleges and universities should not do so without a strong evidentiary case against the kid. I have also postulated that perhaps young college women are not understanding exactly what Title IX is intended to do which is adjudicate campus misconduct and that sanctions can be within a range of outcomes and that the adjudication needs to be procedurally fair and equitable.
It is easy to see in MSU’s document also that many claims results in findings of insufficient evidence. We all pay through tuition the costs of supporting this enlarged Title IX activitiy…it costs the same to staff to investigate a claim that ends in insufficient evidence as it does to investigate a claim that goes through the tribunals. At MSU, as an example, it is 22 staff positions.
Remember collegedad13 the DOE is “guidance”…colleges and universities must set up their OWN processes and procedures which may or may not totally mirror the guidance. This thread is an illustration of one lawsuit that is about the university not following it’s own procedures.
Also the ACLU link is good but geared more toward someone accusing someone else. This link would be a good primer for parents of someone who has been accused. I post it not to scare parents but we don’t seem to think it’s scary to talk to our daughters about what can happen so it’s only fair to talk to our sons about Title IX and what can happen to them. For same sex relationships just pick the link that applies - accuser/accused.
https://www.facecampusequality.org/advice-from-a-parent-1.html