Yes plus the number of complaints that got filed with the OCR. When both sides are complaining it isn’t a stretch to see the system as it is doesn’t work optimally.
If you look at DeVos’ recent comments, she has indicated pretty directly that they will send regulations on this issue through the adminstrative rule making process, which will provide quite a bit of time for people to be heard and a variety of ideas to be vetted. It will hopefully result in more balanced requirements and guidance from the OCR, which I think is in everyone’s interest.
While I agree with much of the article, and also agree that it was reasonably balanced, I note that almost all of its power derives from its presentation of the fact of the case with which the article begins. And we have no way of knowing how balanced that is. It reads like it was written by the accused’s lawyer; it’s deeply frightening if the accuser is as clueless as the article makes her out to be.
Yet many will accept that account as gospel, conclude every case follows that pattern and proceed from there.
Rather than focusing on anecdotal evidence one way or another, I think it’s helpful to step back and look at the entire disciplinary process, which leaves a lot to be desired for both the accused and accuser. FIRE recently issued a report about the procedural protections (or lack thereof) given to students accused of serious misconduct (not just sexual assault) in college disciplinary proceedings.The report doesn’t look anecdotally at individual cases but rather at the specific official policies in place. https://www.thefire.org/due-process-report-2017/. In analyzing each set of disciplinary procedures, FIRE looked for 10 critically important procedural safeguards. No school got an A, some schools got B’s, but most got C, D or F.
The rated safeguards are as follows:
- A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.
- Adequate written notice of the allegations. Adequate notice should include the time and place of alleged policy violations, a specific statement of which policies were allegedly violated and by what actions, and a list of people allegedly involved in and affected by those actions.
- Adequate time to prepare for all phases of the disciplinary process, including notice of the hearing date at least seven business days in advance, and access to all evidence to be considered at the hearing five business days in advance. If the accused student is required to respond to the allegations before the hearing, he or she must receive notice at least five business days in advance.
- A prohibition on conflicts of interest that could compromise the integrity of the process (i.e., advocates cannot serve as investigators or fact-finders, and fact-finders must not hear the appeal).
- The right to impartial fact-finders, including the right to challenge fact-finders’ impartiality.
- Access to and the right to present all relevant inculpatory and exculpatory evidence at hearing.
- The ability to pose relevant questions to witnesses, including the complainant, in real time, and respond to another party’s version of events. If questions are relayed through a panel or chairperson, there must be clear guidelines setting forth when questions will be rejected, and the reason for refusing to pose any rejected question should be documented.
- The active participation of an advisor of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.
- The meaningful right of the accused to appeal a finding or sanction. Grounds for appeal must include (1) new information, (2) procedural errors, and (3) findings not supported by the record. Appeals must not be decided by the investigator or original fact-finding panel.
- Unanimity of panel must be required for expulsion.
Step away for a moment from the highly charged issue of sexual assault on campus, and ask yourself: if I or my child were accused of serious misconduct and facing expulsion – including possibly some lifelong notation on the college transcript – wouldn’t I want and expect to have these procedural safeguards?
I thought FIRE’s proposal was entirely acceptable but I am one of those that think sexual assault should be reported to the police when criminally applicable and I am one who also thinks expulsion should require unanimity in response to a hearing in the absence of criminal prosecution.
It’s easy to react with horror to stories such as the one in the article, to pick apart phony statistics good only for advocacy, and to cluck about procedural protections. It’s much harder to do all that and to acknowledge that, one way or another, thousands and thousands of women (and some men) have been traumatized and bullied out of educational opportunities by aggressive sexual predators. In raw mathematical terms, “procedural protections” means victims – not just phony victims, but real victims – lose. At the level of constitutional law, when the issue is imprisoning someone, the constitution says “tough nougies” to the victims (although they are allowed to sue for damages with considerably fewer procedural hurdles to overcome).
The current regime instituted by the Dear Colleague letter is an overreaction to that, something of a Reign of Terror or Cultural Revolution. I also agree with the author that sitting behind a lot of it is a notion that any heterosexual sex that is less than perfect sex – which is to say, any heterosexual sex – is rape of the female involved. There are people who believe that in good faith. But not a whole lot of them, even in universities.
I heard a story on NPR about some experiments with a more “restorative justice” approach to complaints of campus assaults. Obviously it’s not for every case, but seems worthy of consideration in certain situations. http://www.npr.org/2017/07/25/539334346/restorative-justice-an-alternative-to-the-process-campuses-use-for-sexual-assaul. Note that the NPR article says that the DCL has made some colleges fearful of exploring the possibility of restorative justice.
I think we all would want the procedural safeguards listed in #24 if we or our children were facing expulsion. But under current law we should not have that expectation. The courts have already defined what “process is due” in administrative hearings. You can look up the cases and be as surprised as I was at what standards have been established by the courts – they are bare bones for administrative proceedings. I think you will find that the DCL goes beyond what is actually required by that case law. The bottom line is that the courts draw a sharp distinction between proceedings where incarceration is a possibility and those where it is not. Many contend that the stakes are similar but the courts have not yet taken that view.
I think an idea similar to “restorative justice” is already in play on campuses – some schools have gotten around the DCL’s “no mediation” rule by setting up two tracks for complaints – an informal one and a formal one. There is no possibility of a hearing with the informal track and other measures which satisfy both parties are undertaken to resolve the complaint. I think this approach is very useful in the cases that involve excessive amounts of alcohol on both sides.
Such standards can change and not all courts are in agreement with each other. Does anyone know the outcome of the case where Columbia lost the motion to dismiss before the 2nd circuit?
Sure standards can change but we haven’t seen the legal standards change relative to due process in administrative hearings in many years. The courts pretty much are in agreement and the requirements set forth in the DCL do not seem to run afoul of any of those decisions. When you compare the DCL to the case law you can see quite clearly that the attorneys who drafted that letter quite purposefully hit every requirement articulated in those cases.
Perhaps the root of the problem is that any third party (police, courts, university administration) attempt to figure out what actually happened in an accusation of sexual assault with poor quality (if any) evidence, poor quality (e.g. drunk at the time) or no witnesses, and poor quality (e.g. drunk at the time) memories and testimony from the involved parties is likely to make errors (in either direction).
The problem I have is applying the rules of an administrative hearing to what amounts to a criminal charge. IMO universities are stepping into an arena that should be governed by law enforcement and courts.
@Proudpatriot colleges apply the rules of administrative hearings to criminal matters every day when they adjudicate drug offenses, regular assault, vandalism and every other breach of their conduct code which often involves criminal behavior. Why should sexual harassment or assault be any different? Why single out one segment of the population (mostly women) and tell them they have no right to file a complaint with their school? And what about campus safety, does that matter?
The criminal justice system exercises it’s discretion and does not prosecute campus rape in the majority of cases. Schools have an obligation to at least investigate theses complaints under Title IX to ensure equal access to education. A very different goal than that of the criminal justice system. And when they find enough to justify a hearing they conduct one. Focus on improving that system not attacking Title IX which gives students the right to file these complaints.
Let’s be clear: The vast majority of what we’re calling “sexual assault” on campus does not come close to what a prosecutor would want to prosecute a rape case. The criminal justice system is terrible in most respects: It does a terrible job of keeping innocent defendants out of prison, it does a terrible job of convicting guilty defendants if there are any ambiguities in the facts, it does a terrible job of punishing and rehabilitating those convicted of crimes, and it does a terrible job of respecting and protecting victims and witnesses.
Why anyone would want to turn the problem of sexual assault on campus over to the criminal justice system escapes me. Criminalizing the whole thing would mean no effective remedy for victims in almost every situation, and real disincentives to report assaults. It would mean rich violators would have something close to impunity and occasional poor violators would be punished harshly.
And when the criminal justice system declines to prosecute a case the public at large, who are not generally aware of why that usually happens, conclude that the woman made the whole thing up. I understand why women are reluctant to go down that road absent obvious physical injuries, a witness or video. They most likely are going to come up empty handed when they report and then their credibility is attacked.
“It’s much harder to do all that and to acknowledge that, one way or another, thousands and thousands of women (and some men) have been traumatized and bullied out of educational opportunities by aggressive sexual predators.”
Yes. I began working with two new students this week who left school after being victimized. One was actually punished under Title IX for a sexual encounter they experienced as an assault on THEM by a sober offender. The other left quasi-voluntarily after the institution failed to respond to repeated complaints that they were being sexually harassed.
I cannot share which is which, but one of the new students is a woman and the other a man.
For pursuing the matter of a sexual assault accusation on campus, going through the police/courts and the university administration are not mutually exclusive. This is analogous to other types of actions that may be both illegal and against university student conduct codes (e.g. theft, vandalism).
Now, whether the police/courts and/or university administration tend to make lots of errors in how they determine guilt or innocence is a different story. It appears that, for sexual assault accusations, both perform poorly.
Yes, but that fact does not seem to stop people from claiming that sexual assault should be handled by the judicial system and police. It does make you wonder if they are just not thinking through the process clearly or they are simply OK with the fact that most of these cases absent physical injury or a witness will not be prosecuted or even investigated to any great extent.
If it were me or one of my own I would advise filing both with the college and with law enforcement. When law enforcement declines to prosecute we would just have to live with the fact that our credibility is now going to be challenged. But complainants get the credibility issue every which way – many posters here have questioned their credibility when they don’t report.
There is a difference between saying that it should be handled by the judicial system and police, versus saying that it should be handled only by the judicial system and police.