New sexual misconduct guidelines from Department of Education

Yes I think the key here is both serious and systemic and total lack of intervention by the school. That is very different from a uni doing something but just not what an accuser wants or a uni not allowing a just process for one instance of claimed harassment. Serious, systemic and ongoing are well seated in law and there is nothing in the proposed regulations that seem to prohibit a uni from acting in a case of serious and ongoing harassment on a campus but like a business can take action against an employee who engages in ongoing harassment but may put an employer on notice only for one random action.

The school in the Monroe case lost because they did nothing at all which is at minimum morally wrong and clearly was legally wrong. But it is interesting that the legal system did what it is supposed to by charging the kid which only bolsters the percent of the population that feels that (the legal system) is where this stuff belongs and educational institutions should not be handling it at all. I am a proponent of the language around repeated and pervasive with regard to businesses and educational institutions which was why I was so vehemently opposed to Columbia’s blind eye toward mattress girls harassment of a student which absolutely was repeated and pervasive.

Did you look at Davis v. Monroe? It exactly rejects that idea. The justice system DID act, and the school was held liable for not acting.

“things off campus are not going to be investigated by the school or punished by the school.”

This is a part I DON’T agree with. At many public schools, officially sanctioned student life happens off campus at apartments and Greek houses that function as student space. It doesn’t make sense to me that one student attacking another during the school term at a student social event would be outside the university’s purview. This case at Kansas State is a good example:

http://themercury.com/news/ksu-fraternity-member-found-guilty-of-rape/article_483dd1a3-3ac9-5076-9d67-f17e03331b71.html

I think there’s more of an argument about what universities’ role ought to be when the students are on break and in a different state at the time of the alleged misconduct, as in this case from Stanford (Stanford did investigate and discipline the accused, but the local law enforcement declined to charge him):

http://juneauempire.com/local/2014-06-15/stanford-denies-rape-survivors-appeal

Are you saying there is a middle ground here? If so I agree. There is a difference between an incident at an authorized fraternity at its fraternity house and an incident in at a student’s off-campus apartment or in another state. The university has powers over the fraternity that it does not have over other private organizations and other private venues.

Also, @hanna, yay, a lawyer is here! Do you know/could you explain about how the Davis v. Monroe “access”/“equal access” issue is interpreted? What is “access” usually interpreted to mean in this context? What in your view would be the difference between the current interpretation of Title IX and the proposed guidelines, as to the severity of the conduct that would merit action by the college?

Somewhere in the present Title IX and Dear Colleagues letters, off campus, between 2 students, is covered.

I would like to see off campus things reported to the police first. If an arrest warrant is issued then the college can get involved. The mental support systems in place at colleges don’t discriminate by where a student lives and is tied to the status of being an enrolled student. The quasi judicial stuff the colleges engage in should be limited to the campus. A restraining order if obtained because of an occurrence anywhere would still apply on campus and colleges can’t issue restraining orders anyway. It still feels to me like some want colleges to supplant existing police and legal channels no matter where students are in the world. That is the type of over reach in my mind this codification to law hopes to fix.

So you’re saying that if a student has clear and convincing evidence* that she was raped at a frat house at a school’s authorized fraternity, but the evidence is not beyond a reasonable doubt, the college should do nothing? The college is convinced that the student was raped at a frat house but they should do nothing?

*Be fair here. I’m talking about evidence that would be “clear and convincing” to you.

But the issue of access to education is ON campus and the idea has been that the offense affected the complainant on campus, so the colleges need to respond.

Nothing precludes one from going to the police. Never did.

Put yourself in a young girl’s shoes. Sexual assault is humiliating. Rape is a personal, private, physical violation and many have trouble just getting their anger up enough to go march into a police station and deal with it same as a stolen bike.

Regardless of whether it rejects the idea it doesn’t make them right. And the facts in Davis v Monroe don’t suggest that the school didn’t act. They suggest that the actions taken by the school where not effective and/or reasonable. Law enforcement has more tools to work with than the school does. They where the ones who eventually put the hammer down on the kid.

That’s called mob rule. Clear and convincing isn’t the legal standard. Beyond a reasonable doubt is. And a number of people have to feel that way to get a conviction.

All one has to do is look at the Duke Lacrosse case. They had clear and convincing evidence until it all fell apart during the DNA analysis. It was the rules and adversarial nature of the criminal justice system which brought the truth to light. University systems are not designed to handle it.

Perhaps, @“Cardinal Fang”, in some abstract sense that is true. But only certain classifications are accorded legal scrutiny under the 5th and 14th Amendments and civil rights legislation like Title IX. People are familiar with the most common ones (race, national origin, alienage), accorded the highest levels of scrutiny. Discrimination based on sex is generally accorded only an intermediate level (otherwise, it would be hard to have things like women’s sports, separate bathrooms, etc.)

Anyway, the classification of “harasser” versus “harassed” is not a suspect classification, as it is not even based on sex, and of course not on any of those strict scrutiny triggers. As I mentioned above somewhere, this could have been a boy-boy or girl-girl situation, and would still be within the purview of Title IX (as interpreted) even though no “equal” access claim would be cognizable, at least based on any covered classification.

People often fail to appreciate some of the nuances and practicalities. The school in Davis was under an obligation to provide both the victim and the harasser with an education, and would have had to justify any policy response to harassment under strict scrutiny to the extent that there are different races within the school, as here. Suppose, for instance, the school had a policy of always reporting any alleged harassment to the police immediately upon learning of it. if it turned out that students of one race were being reported more frequently than another, that would be a huge red flag. The same analysis would apply to lesser disciplinary sanctions like suspension, segregation of offenders, or even expulsion. All decisions would need to be justified with the DOE. (Obama’s “Dear Colleague” letter for instance explicitly discouraged escalation of disciplinary matters to the extent feasible because of observed disparate impact.)

In Davis, allegedly after a lengthy delay following actual knowledge of the abuse, the school got the police involved. How long should a school wait; should it be concerned if it is observing differential problems by race; and what intermediate steps should be taken when dealing with ten and eleven year olds prior to suspending, expelling or getting the police involved?

These are just tough questions, and school administrators are not lawyers, judges or policy makers. None of us actually knows the real facts here. This was a summary judgment motion, so the facts were taken to be true, but on remand they would have been subject to an evidentiary exploration to determine exactly what happened. While the fact pattern was likely to have unfolded substantially as described in the case, none of it was proven, absolutely none. That is the essence of a summary judgment motion. The defendant school district argued that even if the facts were exactly as the plaintiff alleged, the plaintiff still would not have had a private damages recovery under Title IX. This argument won in the lower Federal trial and appeals courts (plaintiff’s case was dismissed), and won the backing of 4 of the 9 SCOTUS Justices. While this sounds harsh, people should remember that plaintiff could always have brought suit based on tort against the school administration on any number of theories (negligent failure to supervise being the most obvious).

These issues are very tricky even in the legal context, let alone at the school level. Short of segregating kids by sex at all levels of education, there is no solution that does not involve some balancing and some recognition that human beings, even acting with the best of intentions, are going to act imperfectly. Switching to the college context - for the most part, the kids are legal adults, and I think that serious allegations of abuse should be handled at the adult level through the legal system. Just my two cents.

This is incorrect. Recall that the Supreme Court was deciding whether to send the case back to the lower courts. The lower courts had decided that even if the allegations of the girl’s family were correct, the girl did not have a cause of action. Therefore, the Supreme Court was bound to see if the accusations, if true, would constitute a cause of action. That is, they were to assume the accusations were true, and the determine whether in that case, the girl was entitled to damages from the school district.

So let’s look at what the accusations were, according to the family, as written up in the case.

[quote]
Petitioner alleges that no disciplinary action was taken
in response to G. F.’s behavior toward LaShonda… [P]etitioner alleges, at no point
during the many months of his reported misconduct was
G. F. disciplined for harassment… Nor, according to the complaint, was any effort made to
separate G. F. and LaShonda.[/quote

Yeah. The school didn’t act.

The aggressor in the case pleaded guilty to sexual battery.

Yes, G.F. did plead guilty as an 11 year old, secure in the knowledge that his juvenile record would never be revealed. Probably not worth really going to trial, as there was never a question of real consequences.

I assume it was the school who got the police involved after a lengthy delay. Why didn’t the girl’s parents go to the police sooner??

If the dude pleaded guilty we are entitled to assume that he did what he pleaded to.

@“Cardinal Fang”, could you point me to the charging document or plea agreement that details the facts to which the 11 year old G.F. pleaded? What actions did he in fact plead to? Would your analysis change if in fact he pleaded to one count of sexual battery (note, not “assault”) that occurred the day before the school called the police? (Legally, a “battery” is simply an unwanted touching, and does not usually rise to the level of the trauma alleged here.)

There is actually some evidence in the record that the school acted fairly quickly once G.F. actually touched LaShonda:

One month from alleged touching to charging and perhaps even pleading stages. That is actually very quick for most police departments, which of course must investigate first, and then get the district attorney involved (and the courts) prior to any disposition of the case. This suggests that the school did not wait very long after the actual touching. I haven’t read all the opinions of the lower courts, but can you find any evidence that he actually did anything more than make rude comments to her up until that point? Note this language from the opinion:

Majority opinion here (facts discussed on pp. 2-4): https://www.law.cornell.edu/supct/pdf/97-843P.ZO

“The dude keeps yelling sexual things and trying to grab my boobs, and I have to sit next to him all day, but he hasn’t succeeding in grabbing my boobs yet so everything’s OK,” is NOT what a woman undergoing that experience is going to say. Let alone a little girl.

^ That’s what was never proven. And that does not describe sexual battery.

It was never proven, but that is the conduct the Supreme Court decision was based on. IF the accusations were correct, then the girl was entitled to damages; that’s the decision.

I bet the school district settled out of court.