@QuantMech I am not going to lose all that much sleep if they change the burden of proof to clear and convincing. Just don’t think it will make all that much difference in the outcomes of most of these cases. But unless they change to clear and convincing for all disciplinary hearings on college campuses, I do think you will see litigation. Don’t forget almost all schools also use the preponderance standard for regular assault, drug and alcohol offenses and every other offense they adjudicate. To single out one segment of the population, mostly women, and impose a higher burden to prove sexual harassment seems discriminatory on it’s face.
One thing for sure though, no matter what the changes are you will still have students suspended for sexual offenses. And as soon as the first one hits the press you will have the same folks pulling their hair out and blaming the system . And if at that point we are utilizing a clear and convincing standard they will be howling for beyond a reasonable doubt.
“schools also use the preponderance standard for regular assault, drug and alcohol offenses and every other offense they adjudicate”
Speaking as someone who helps all these kids try to transfer and get into grad school, the Title IX record is in a class by itself in terms of the burden on the student’s future education and career. I’ve got kids expelled for drug trafficking, for cheating on exams, even kids who went to jail for DUI. The Title IX kid will have the hardest time, even if the alleged actions fall well short of rape. I don’t see that it’s facially discriminatory to have a higher standard of proof when the potential consequence is greater. Men experience sexual harassment and assault, too.
While I agree that anything that is covered by state or federal criminal laws should be handled by the courts, there is often overlap. Did what happened violate school policies? Did it happen on campus, or at a campus sponsored event? Whether what happened rises to the level of a criminal matter, sanctions within the campus setting may still be appropriate, and investigation should happen BOTH on and off campus. Perhaps rather than focusing on innocence or guilt, colleges should focus on finding a ways to allow both students to coexist on campus, allowing the outside authorities to deal with the investigation, unless it is a situation where it appears other students may be at risk.
Maybe the Title IX students do have a harder time @Hanna, personally I can’t say one way or another as I haven’t followed their progression into the workforce or into other schools after being expelled. I suppose a lot would depend on the nature of the offense, the notation on their transcript and how successful they are in getting accepted to another school where they can exhibit a cleaner record.
I do think the issue will be litigated and the courts will make a determination.
@CTScoutmom I dont disagree with your points but I maintain that schools cannot investigate these events beyond fact finding. They arent equipped and they arent following standard criminal procedure. Yes they should fact find and eventually discipline /sanction but it should only be AFTER law enforcement has treated it like a potential criminal matter and investigated/concluded/
@ucbalumnus assault and battery is a criminal offense. Theft is criminal. Anything criminal should be turned over tp the police. Innocent until proven guilty.
The important difference is that college is not putting anyone in jail or prison for student conduct violations, whether or not such violations are also illegal generally. The college only has power over its relationships with the student.
An actual example: Within two weeks of Brock Turner’s arrest at Stanford, Stanford banned him from setting foot on campus. Obviously, this was quicker than the prosecution that ultimately found Turner guilty of illegal sexual penetration over a year later. Do you think that Stanford’s action was inappropriate, and that it should have allowed Turner to remain a student and on the swim team until Turner’s conviction?
I think the reality of how damaging any title ix finding is as stated in #61 and at least true of the multiple cases reported in the press is one of the reasons why the “we’re just a university dealing with internal matters” is losing in the courts and to come extent with the public.
To my knowledge, there’s never been a US Supreme Court case involving a college student expelled for criminal misconduct. So the case law at the highest levels seems more ambiguous than you’re implying.
@center of course, businesses, volunteer groups, and all sorts of other organizations are permitted (and really, almost required due to liability issues) in many cases, to act outside of legal system as waiting for legal sanction can knowingly put students/employees/coworkers/volunteers in danger and put the org. in liability danger.
I wonder if, in some ways, what you are suggesting could be more onerous on accused students because in order to protect themselves from liability and other students from danger, a school could decide it must put a student on some sort of adminstrative leave until a case is completed in the legal system, which, of course, can take years.
The reality of the judicial system is it is understaffed and too slow for these situations. What would stop a school from deciding that to protect themselves and the students they need to put any accused student on adminstrative leave until the courts resolve the case - the way police departments sequester cops under investigation or a school might suspend a teacher with pay so as not to put other students at risk (and the school in financial risk)?
Probably some of the more legally saavy folks out there would know, if a school allows an accused student - accused of anything, by the way - to remain in the student population and they repeat their offense while the criminal justice system investigates, what is the school’s liability.
i just want to know what the legal definition of sexual assault really is…my gut still tells me that is the key. Every single media article uses the word assault. You don’t toss someone off campus who isn’t a threat to others unless there is behavior that would be potentially risky to others. But quite a few of these cases do not involve what feels like assault to me that would represent risk to other students. Personally I think they need to unpack this stuff to get back confidence. So no I don’t think any student accused of anything should be suspended. I think it should be a very conservatively made decision. It is those “out there” decisions that have garnered the attention and not just the cases that were blantant mistakes by unis…and it is because of colleges making those seemingly random decisions that we have come to this point. There will always be social theories that are not operational.
Sometimes, there are oddities, such as California having a narrower definition of “rape” than most, but also having a different crime of illegal sexual penetration that covers the other situations ordinarily considered as types of “rape” by most, and has similar penalties. Brock Turner was convicted of the latter crime.
There are, of course, lesser forms of sexual crimes like sexual battery that may be defined in state laws.
University student conduct rules on sexual activity may be different as well.
This interpretation d’jour IMO is a big part of the problem. I don’t think it is right to label people with a criminal label or treat them like a criminal without a conviction. That is, in and of itself, marginally illegal at best and unethical at the least. And yet we see it happen time and again on campuses, in their college news sources etc.
The real problem here is trying to protect the purported victim, while at the same time not trampling the rights of the accused. If the school lets outside authorities handle the situation, is it reasonable for them the exclude the accused from campus activities until any investigation is concluded? Does it depend on the severity of the charges? What happens if the victim obtains a protective order against the accused? The advantage to an on-campus “investigation” is the speed at which it can happen. Maybe the accused should be asked to serve a leave of absence, with the option to appeal - and if he or she chooses to appeal, then there can be a hearing. The victim could choose to forgo the hearing and allow the accused back on campus, with some sort of mediation. Such a system should be able to “call the bluff” if either the victim or the accused are lying. Most victims don’t necessarily want the accused kicked off campus, but they do want someone to acknowledge what happened to them, even if it doesn’t rise to the level of a criminal offense.
While there have been some much publicized cases of what appears to be lack of due process (although when you look at some of the details, like the USC case DeVos mentioned, it becomes pretty murky) the issue of leaving an student (of any gender) accused of assault or sexual assault (on a student of any gender) in the student population while awaiting trial.
Teachers are removed from schools all the time to protect the students while their cases are investigated and tried - as they should be. What is the responsibility of the schools to protect the other students at this point?
From a legal stand point, what is their liability?
In the past, from Baylor to Kansas State to the Ivy Leagues there has been a large institutional inertia and reluctence to aggressively pursue sexual assault accusation - which are, at the very least, violation of the code of conduct. What effect would the current policy have on, for instance, the Alec R. Cook case at UW-Madison. (or, for that matter, Alec Shiva. Not to pick on UW, just happen to be aware of those.) Would either of them have been allowed to stay on campus - Cook for the past year+ while awaiting trial under the DeVos recinding, despite the fact the prosecutors are going forward with the case and there are large number of alleged victims and patterns of intimidation and stalking? Should he be allowed to continue on campus until his trial (which is only now getting underway for actions from 2015 and 2016.)
@roethlisburger – the last time I looked which was last summer the state of the case law looked something like this:
Supreme Court decided that there was a property interest in an education – at least for public high school students. Lower Federal Courts then extended that to public universities and colleges. Then a subsequent Supreme Court decision set forth a 3 pronged test to evaluate the adequacy of due process in administrative hearings but also set the precedent that due process is a flexible standard and does not mandate uniform procedures. Notice of the charges and a “fair opportunity to be heard” were articulated in that case.
The U.S. Court of Appeals for the Fifth Circuit specifically addressed college disciplinary hearings in the Dixon case. It is this case that is most cited in connection with due process issues in college Title IX hearings. The minimum requirements articulated were notice of the charges, the specific grounds for those charges in the school’s disciplinary code and a hearing embodying a basic adversarial process. But the case also articulated that disciplinary hearings need not have the procedural formalities of a criminal trial.
On this forum the cross examination of witnesses seems to get the most discussion and this link provides a short synopsis of some of the case law in that regard:
I am not contending that new case law cannot be made with future challenges to the process, but that’s my understanding of where we stood as of last summer.
Agree it is apples and oranges…kids are deprived of their education while in the workforce it is generally suspension with pay. And yes I said a few years ago I would if accused in a murky situation of first calling an attorney then getting a restraining order against the accuser second and go from there. Protecting an accuser often comes off as bullying an accused but hopefully things will change and the unis will cease taking the bully position and treat the two adversaries equally in cases that don’t immediately require police intervention.