“The school can act based on law enforcement results.”
One of the big issues with this is that law enforcement typically takes a long time – months or years – to even determine charges. So if the school has reason to think that someone is dangerous, do they just leave them on campus for months or years? Conversely, do they just suspend someone for months or years without doing any investigation themselves, waiting for the police to decide whether to act?
If it’s taking months or years to charge someone then there isn’t a very strong case. And there is a big difference between a violent serial rapist and consent gone bad. The school can take measures to keep individuals seperate while the case works its way thru the legal system. Asking a school to adjudicate a criminal matter isn’t a good idea.
There’s also the matter of standard of proof. The justice system, rightly, demands that a jury find a person guilty beyond a reasonable doubt before convicting them, which in the case of sexual assault proves to be difficult. A college can’t put a student in prison, so their standard is lower, clear and convincing evidence (or preponderance of doubt if they go that route which I think they shouldn’t.)
But @yourmomma, @momofthreeboys and @roethlisburger are saying that a college that has or could obtain clear and convincing evidence that one student raped another student off campus should not expel that rapist. This seems to me to be unnecessarily friendly to sexual assaulters.
I myself would be less flippant about the standard of proof. It’s that standard that makes our legal system the best one out there. When you lower the standard of proof, sure you get more guilty parties, but at the expense of getting some innocent parties as well. It’s the innocents we should be concerned about – see Duke Lacrosse. So I am not so willing to call somebody “convicted” on “clear and convincing” evidence in a school’s kangaroo court a sexual assaulter. If the action meets the legal definition of sexual assault and the perp is arrested/charged, the school can take remedial action until the case is complete.
@“Cardinal Fang”
No, I’m saying a college shouldn’t be investigating an alleged sexual assault on property not under the control of the school. If the college doesn’t investigate, you never make it to the clear and convincing evidence stage.
@roethlisburger: I’m not sure I entirely understand your reasoning. We use territorial jurisdiction systems all the time in this country, but we usually have a specific reason for it. We also don’t usually apply them to private actors, which many colleges are. What is the theory behind applying one with respect to school discipline surrounding sexual assault/harassment?
I view a college as a business like Starbucks and the students as the customers. If you rape someone in the Starbucks bathroom, you can rightfully be expected to banned from Starbucks and the police to be called. If you harass the other customers, you might be banned from Starbucks, although the conduct may not rise to the level of a prosecutable offense. However, it would be rather strange and bizarre to expect Starbucks to investigate whether one customer raped another at their home.
There was not “clear and convincing” proof that the Duke kids were guilty, because they weren’t. This is not a good example for you.
I’ve recently read some indictments that took months to make and that came down on the defendant like a ton of bricks, so I cannot agree with this.
@roethlisburger: Thanks for the explanation. Unfortunately, that only increases my confusion, not decreases it. A private business can generally stop doing business with anyone for any not unlawful reason. It is irrelevant whether they are found guilty of a crime, accused of a crime, or having nothing to do with a crime at all. In that sense, what has sexual assault/harassment guidance got to do with anything?
Conversely, we do expect private businesses to take into account sexual harassment between employees even when it occurs outside of the physical boundaries of work. Generally private entities can be liable whenever the harassing activity is related to the work relationship. So why wouldn’t the same rules apply when the private entity in question is a school? Please note, those rules already do apply to schools with respect to employees, the question is just whether they should extend to students too.
A college is a community. Not an in and out business. And the purpose of Title IX us still to ensure equal access to education, etc.
And if a current student assaults another off campus, they return to that educational environment, no? And can still impact the other’s “access.” Depending on particulars.
There are legal questions about Title IX, would Davis v Monroe be decided the same way with today’s SCOTUS, and I doubt it would be, and there are public policy questions. On the public policy question, I view a college as like Starbucks, and view it as odd we would expect colleges to be concerned with what happens off campus.
These rules apply to K-12 schools, not just colleges. It’s arguable whether we should regard a college as a business like Starbucks, but surely nobody thinks a middle school is a business like Starbucks.
I’ve never, ever said that I don’t believe in expulsion. I don’t believe in expulsion without some pretty strong evidence. And I like that the proposed regulations say that if expulsion is a possible outcome then the evidentiary standard applied to all conduct violations that can end in expulsion should be the same. I also think that what happens between two students may not create a risk to an entire campus so I’m “for” allowing mediation along with all the other options for keeping students separated while finishing their educations.
My issue with the idea that Starbucks can ban a potential customer and a college expelling a student is twofold… in my mind there is absolutely an implied contract between the college and the student and because of that each has implied responsibilities and legal responsibilities. Secondly, if the concept is such that like a Starbucks a customer can go get coffee at another coffee shop, then disciplinary actions should not be on a student record so that they, too, can go find another college should they choose to un-enroll or be asked to leave.
But in general I agree with colleges not inserting themselves into issues that occur off campus or on vacations and fall under the jurisdiction of the local police.The proposed regulations say students are still entitled to all the supports, etc. available even if they won’t and I presume “can’t” file a claim for what is claimed to be a sexual conduct violation.
Is anyone bothered by the representation for cross examination? I think obviously that claimants must show up…there have been hearings where the claimant hasn’t even shown up for the hearing and the accused was expelled by the college and that seems ludicrous and not believable in the United States. A couple of those were overturned in courts. But what if the accuser is poor or her parents don’t support her and she can’t afford an attorney and the person she’s accusing has an attorney or vice versa? I’m alittle stuck on that because I absolutely think it’s wrong to not be able to cross examine or have evidence presented and colleges and universities did a bad job of picking and choosing what was included in the hearings so they need controlling regulations for that aspect but I can’t imagine another scenario. Unis with law schools have a ready supply of lawyers and want to be lawyers, but the small colleges??
It the accuser wants to be represented, she/he should go to the DA and have the matter decided in court. We pay the DA’s to represent the victims/accusers in court, but we don’t provide that for non-criminal cases or for decisions in non-criminal courts.
Law schools don’t have students just lined up waiting for a case. If the school has a clinic, there are certain cases the students can take and they have to be supervised. Students have their own work to do and would expect credit or payment if they had to put in hours and hours to prepare for a hearing.
I tend to agree in theory that it is primarily a criminal matter but I fear we are stuck with this parallel justice system so therefore it must be reasonable and non discriminatory and afford the same protections of law if colleges are going to allow students to call other students rapists which they have done and allowed to happen.