If I missed the existing discussion on this, sorry, please direct me to it.
The Department of Education is about to come out with new college sexual misconduct guidelines. If they are as the NYTimes reports, there are some good changes and some awful changes.
First the good: colleges would be allowed to use either the “preponderance of evidence” or the more stringent “clear and convincing evidence” standard of proof.
Now the bad:
Accused rapists would be allowed to cross-examine their alleged victims.
Sexual harassment wouldn’t be an offense unless it was so severe it drove the victim entirely out of her/his program. The Times reports:
Specifically, “a private damages action may lie against a school board under Title IX in cases of student-on-student harassment, but only where the funding recipient acts with deliberate indifference and the harassment is so severe that it effectively bars the victim’s access to an educational opportunity or benefit.” I think it is reasonable for there to be a different definition of sexual harassment for purposes of college sexual misconduct guidelines than for bringing a damages suit against a school board for failing to stop the harassment.
If you’re claiming there should be a different legal standard for suing K-12 school systems in sexual harassment cases vs universities, that doesn’t appear to be the case in existing precedent nor does the text of title ix itself seem to make that distinction nor is it obvious that would even make sense as a matter of public policy.
This is a bit of a digression, but in Davis v Monroe the minority (Kennedy, Rehnquist, Scalia and Thomas) thought that the conduct described in the lawsuit, a 5th grade boy repeatedly, over a period of months, attempting to touch a 5th grade girl’s breasts and genitals, and making unwelcome comments like “I want to get into bed with you” and “I want to feel your boobs” and rubbing himself against her, was not so bad that the school district was responsible for acting to stop it. The boy plead guilty to sexual battery for his misconduct, but that, according to the four, was not sufficiently bad.
They didn’t dispute the conduct-- they couldn’t, because the Supreme Court has to accept the facts as found by the lower court-- they just thought the facts as described weren’t bad enough to warrant a response.
I was wondering when some of this was going to surface. If this sticks this is positive also:
I’m not sure how you can make a case or conversely defend yourself if you don’t even know what the other party is putting forth. I’m fine with the definition also as the new laws appear to allow mediation which I’ve always thought should be an option in many of the GF/BF he said, she said two drunk kids stuff . I also like that they appear to be going to require a formal complaint to the responsible administrators which seems to take care of the “third party accuser” scenario. I’m not sure about the “cross examination” piece of it although on surface that seems fair and if both parties have access to ALL the evidence obtained this should be fairly straightforward. I still think sexual assaults should be reported to the police, but really that is probably a state or jurisdictional type action, not federal. About time…only took five or six years to clean up the mess that occurred.
If you think that “denying equal access” ought to be the standard, then we agree. However, I can’t see how anyone could reasonably claim that any access at all to a thing is the same as equal access to the thing. What if I can use a certain state park any day, and you can use it on March 3 only? You have access and I have access, but surely we don’t have equal access.
Similarly, suppose you and I are both grad students in a lab. You can just work in the lab, but in order for me to work in the lab, I have to endure another student propositioning me in lewd terms every day. I put up with this because I want my graduate degree, but you and I don’t have equal access. I have to put up with all the crap, and you don’t.
I’m not clear what “allow mediation” means here. Who is being allowed? If the guidelines are allowing mediation providing the disputing parties agree, that seems fine to me, but if colleges are allowed to require unwilling disputants to undergo mediation, then I’m a firm NO. A woman should not have to undergo mediation with her rapist, no matter how convenient that is for her college.
I wasn’t arguing about what the standard should be, but only about the standard is, as defined by the Supreme Court. The Supreme Court omitted the word “equal” in the key part of the opinion, so they clearly viewed the equal modifier as superfluous.
I’m not a lawyer. Are you? The part of the decision where they say “Held:” and then go through the legal reasoning of the case has the “equal access” wording, and the part of the decision where they go through the facts of the case has the “access” wording. I don’t know which of those is thought to be more important, and which is thought to be “key.”
I would have guessed that if one part of a decision has a more expansive definition of an offense, and another part of a decision has a less expansive definition, the more expansive definition would apply, but I don’t know.
Right. But the keyword is “access.” Not whether it is strictly equal by example of hours or days. I believe equal here is qualitative, not quantitative. Seems to me, this favors a host of reasons the complainant may feel denied her (or his) opportunity to pursue the education as others can.
“Now the bad:
Accused rapists would be allowed to cross-examine their alleged victims.”
Why is it bad that the accused is allowed to cross-examine the accuser? An accused right to confront his or her accuser is a cornerstone of due process that dates back hundreds of years in Western jurisprudence. Without that right, there is no due process.
^^^^ Exactly. Having a child that went through a false/exaggerated accusation last year (ultimately found not “not guilty”) our biggest concern was having the ability to cross examine the accuser and any witnesses, which we were denied. Ultimately it worked out in our case but doing research into these situations around the country tells me we were the exception and hopefully the ability to question the accuser, rather than accepting one side’s story as absolute fact will prevent many from being unfairly accused and punished.