You use the term rape very loosely Fang. Much of what previously fell under college jurisdiction is pretty gray with regard to rape. If an accuser wants someone else to cross-examine them other than the person they accused them they can use the judicial system for a rape accusation and let lawyers handle it. I suspect the majority of the country thinks “rape” ought to be handled in court anyway. The previous guidance was rife for abuse by everyone involved and clearly no one was happy…not accusers and not the accused and not the universities. Tightening up the process is long overdue and a step in the right direction.
Look, we go round and round on these threads, with individuals’ ideas of what’s better or best. But the issue isn’t a free for all on opinions.
The original point was guidelines for the colleges’ handling of these cases, NOT a rewrite of public law. This aspect of Title IX was about access to higher education. Nothing precludes an accuser of going to local police and possibly seeing this in the court system.
Many worry so much about federal funding at holistic colleges that include diversity in their choices. Why is it so difficult to understand federal support under TIX was in jeopardy if a college did not adhere to its role in managing a rape or other sexual assault accusation?
One last thing, the Sixth Circuit Court of Appeals ruled last year that when there are credibility issues in public university sexual assault cases (which there usually are), the accused must be afforded the opportunity to cross examine the alleged victim at the disciplinary hearing, and the failure to do so violates the accused’s due process rights (Doe v University of Cincinnati, 872 F3d 393 [2017]). So the new guidelines are in accord with current federal case law, at least with respect to public universities.
The new guidelines are only proposed, at this point. I find the linked article informative.
Even The Atlantic last year recognized just how dangerous the Obama administration’s 2011 “Dear Colleague” guidance was:
The article is long, but surprisingly even-handed. Let’s wait to see the actual language of the proposed Trump DOE regulations, before jumping to any conclusions. Was the public afforded any notice or comment period before the “Dear Colleague” guidance back in 2011?
@momofthreeboys, there are students accused of raping other students. Some of those students did rape their accusers; others did not. So if accused students are permitted to question their accusers, then, necessarily, guilty accused students will be allowed to directly question the people they raped. And that should not be allowed. Accusers should be allowed to get their questions answered (provided they are allowable questions) but they should not get to question directly.
@“Cardinal Fang” I would agree that having an intermediary cross examine the accuser is acceptable, the problem is in the current set up that doesn’t happen. In most cases the accused can have an attorney present but they can not speak. Questions can be submitted to the investigator but that person is under no obligation to ask the questions and the accused is not entitled to know what was asked, answered, etc. This is the bias that needs to be removed and in my opinion the way to remove it is to have the questions asked (by someone) with the accused or their representative present. This seems to be the goal of the proposed change, bring the concept of due process back to these investigations.
This, “equal,” was either a bad edit by the law clerks or negotiated ambiguity. Although, equal first appears as part of an example and talks about access to “resources” i.e; facilities. Either way, it’s poorly written.
You won’t have equal access if kids are told in loco parentis to stay away from each other. Each may have access but it may not be perceived as equal by one or the other…especially on small campuses where there may not be a wide variety of sections or cafeterias and so on. The word access is fine with me.
These cases should be handed back to the criminal courts where they belong. Then the accusers can be cross examined by lawyers, just as the accused would be.
I don’t think anyone serious ever considered O’Connor a particularly strong thinker or writer.
The most important aspect of any decision is the holding in view of the specific fact pattern presented. Here, a recipient of Title IX funding failed to prevent an individual from denying access to an appropriate education to individual, after it had been made aware of the harassment deemed discriminatory under Title IX.
I don’t see how “equal” is particularly relevant, as we are not talking about a policy decision, for instance, that somehow created two unequal classes of students. This could have been a girl-girl or boy-boy situation and had the same outcome, reinforcing the idea that we are really taking about simple access rather than “equal” access on these facts.
It’s messy, but that’s what you get when judges dodge and weave over a series of cases in order to read into laws that which isn’t there either in the text or in the legislative history. The dissent is a little tighter intellectually.
Does anyone know what happened after the case? I’m assuming it was settled before trial on remand, but couldn’t find any info on a very quick search.
There is a point where these matters have to be moved to courts that are set up and have rules about cross examinations, who can question who, and what questions can be asked. The college ‘hearings’ have no rules, and no one knows what is fair or what is coming next, and often the hearing officers are not knowledgeable about the rules of criminal procedure. The accuser has control. If he/she doesn’t want to be questioned by he accused, go to court and questioning will be done by the DA and/or the defense attorney.
One thing I think is good in the proposed rules is that the school will take care of things on campus, but things off campus are not going to be investigated by the school or punished by the school. One of the cases around here was of a girl accusing a boy of something (I don’t think it was rape but inappropriate touching or assault) that took place at a party off campus. No investigation immediately, no physical examination of the property or interviewing of witnesses at the time of the incident. It is totally unfair to anyone accused, perhaps months later, who has no control over the investigation or if an investigation is even conducted They are being accused of crimes like rape and assault, but receive no protections.
“Accusers should be questioned, but not by their accused assaulters”
Actually in criminal cases an accused would have the right to act as their own attorney and thus to question the accuser.
^^ and a judge would be there controlling the questioning, and IMO doing a better job than whoever is the running the hearing on campus. Rules make a difference, as would the physical distance between a witness and questioner in a typical courtroom.
We would be creating a policy that created two different classes of student if we allowed the kind of harassment alleged in Davis v. Monroe: the class of not-harassed students and the class of harassed students. Clearly the harassed girl wasn’t denied access to an education; she stayed in school during the period of harassment. She had access, but she didn’t have equal access because she had to put up with pervasive harassment, whereas the other students didn’t.
It is unfortunate that this has become very political. This is moving back to the right now, and in two years there is a good chance it is going back left. I feel like there should be people who aren’t partisans trying to evolve the process to get to a better process based on what does and doesn’t work well, instead of just shifting based on which party won the last election.
Unfortunately, I don’t think that is happening.
The notice and comment period and the fact that it will become law should shift the existing guidance more toward mainstream thinking since presumption of innocence is neither a left or right political position and the police and judicial system are available to all. If unis hadn’t gone rouge the original guidance would have probably stood.
Note that Davis v. Monroe explicitly rejects the idea that the justice system is adequate to deal with sexual misconduct in schools. In the case at issue, the boy eventually explicitly pleaded guilty to sexual battery, a crime. Nevertheless, the school was to be held liable for doing nothing to stop the crime when they were made aware of it.
Schools (and other organizations) are not equipped to deal with legal issues. Thus allegations of sexual assault should be referred to and handled by the justice system. The school would need to find an accommodation during the proceedings – investigation to trial. Trying to be quasi judicial just messes things up.
Nothing stops a student from going to civil authorities.
It’s the nature of the crime, the close living, and more, that makes many unwilling to do so. And of course a college has obligations to its students in its environment.