New sexual misconduct guidelines from Department of Education

If I hired a lawyer and they told me “act in a reasonable way” they’d be flying out the door so fast they’d shoot past birds. Oh, gosh, how helpful, “act in a reasonable way.” And here I was, all set to be unreasonable.

Right. All this was meant to be proactively ready and clear. Ready for a process. Responsible staff identified and educated to the parameters.

I hire a lawyer to tell me what the process and the parameters are, not to say “be reasonable.” And, by the way, what are the processes and the parameters I should be ready to implement?

Another well written balanced article by the Atlantic and Emily Yoffe. If you haven’t followed closely the last 5 years or so you would never believe a lot of what has happened on campuses.

Well, they were all covered in the prior T9 and Dear Colleague letters, Fang. Seems to me the college attorney would be involved up front, in interpreting requirements and helping set up the response process at that college. You don’t go to him or her wide eyed when Mary complains, asking, “What do we do?”

“Act in a reasonable way” may mean appropriate to the accusations, but it’s not off the top of your head.

And I did not find the Atlantic article “balanced.” I felt, at various points, it’s clear he’s not a fan.

“The civil law is designed around the idea that rational people will act in a reasonable way.” I have given that advice thousands of times. Never once been fired for it.

Emily Yoffe is a woman.

Okie. Missed that.

The gender isn’t that important and a male reporter filed essentially a similar pros and cons article for Slate.

@Ohiodad51, If I were a college president and I hired you to advise me on how my college should implement these new guidelines, and your entire advice were “Be reasonable,” I’d fire you. I already would have intended my college to be reasonable, so you wouldn’t have been advising me to do something I already wasn’t going to do. But even colleges that have intended to be reasonable have gotten into trouble.

@“Cardinal Fang” You seem to be looking for some detailed manual of what to do in every situation. It doesn’t exist because every situation is different. They are all knuckle balls – all different. Best you can do is set up guidelines. Take complaint, investigate, pass to somebody, etc. But at the end of the day you’ll be judged by the reasonableness of the actions taken. When in doubt, bounce it off legal counsel.

Oh come now, @yourmomma. Colleges had to set up a system in response to the Dear Colleague letter. Now they have to do… something else. What? It’s going to involve hiring and/or firing people, setting up different systems, publicizing different campus rules. “Be reasonable” doesn’t tell me what to do. A college president can’t just respond to events. They have to prepare for events.

Once this is law as opposed to guidance added to all the previous 5 years of lawsuit determinations it should not be blind to unis what student communication needs to change and what process and procedures need to change if any. Millions of people navigate life without the benefit of the added support structure of a college setting. Millions of people on and off campuses can and do make reasonable decisions about conduct everyday. There is no reason to expect less ability from college administration to absorb and adjust to legal clarity.

These new guidelines are going to be put out for comment. In order to comment, we need to know what they mean. We can’t wait until they are enacted to find out what they mean.

We can argue that regulation X is ambiguous and, if misinterpreted, likely to cause unintended consequence Y. That would be a pretty typical comment.

Most often lawyers are hired to write the implementation guidelines or to review guidelines drafted by some committee. If a lawyer was asked ‘What do you think?’ the response would be “I think you need a manual, a procedure. Would you like me to write it? It will cost $$$$” A lawyer can’t know every situation that will come up, but should be able to say “If XXX comes up, this is what needs to happen.” We need to involve local law enforcement, we need to have a hearing, we need to immediately expel both students.

I dont think, over pages and pages of posts on multiple threads, anyone else wants a college to “immediately expel both students.” The whole point (past T9 and DC letters) is procedure.

Lawyers at major university law schools have been giving viewpoints for years. All this is doing is taking an executive order that well intended but mismanaged by unis and students and bringing it to law with equal rights and closer to existing laws. The interesting thing that may or not make it through the comment process seemed to be the implication that whatever level of clear and convincing or preponderance or whatever a uni chooses needs to be the same for all university misconduct hearings if I read correctly. That would impact all kinds of hearings. Makes sense and if I read correctly is interesting. I don’t know what unis use for plagiarism, vandalism, alcohol offenses etc.

The new proposed regulations have now been released:
https://www.washingtonpost.com/local/education/betsy-devos-releases-sexual-assault-rules-she-hails-as-balancing-rights-of-victims-accused/2018/11/16/4aa136d4-e962-11e8-a939-9469f1166f9d_story.html?utm_term=.1fee62af5cd6

As described by the Washington Post, they seem pretty reasonable.

Accusers can be questioned by a representative of the accused student, but not by the accused student him/herself. “Rape shield protections” limit the type of questions that may be asked.

Liability is limited to incidents that “occurred within a school’s own programs or activities. That could include off-campus incidents if it were, for instance, in a building owned by the school, or at an event that the school funded, sponsored, promoted or endorsed.”

The actual proposal is here: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf