I also agree with the points brought up by Lord Feldon and Little Nemo.
I am an attorney working in Higher Ed, and have been very active in efforts in my state’s public universities when it comes to bringing everyone along to the ‘new’ Title IX standard. Please bear in mind, this is not an Obama issue, as the first DoJ letters about the issue were issued in 2001. With a reminder in 2011, and then a reminder about the reminder last year into early this year. So, fundamentally, this is an issue Higher Ed should always been on top of, but due to things like Penn State, it is now suddenly topical.
I talk to school administrations that are just getting themselves in compliance, and many of the same concerns from the OP pop up. So here is my standard speech.
Two students that are in your Chem I class (gender does not matter) go to a party over the weekend. They come back Monday, and one of them holds the sincere belief that they were sexually assaulted by the other. Do you believe that they should be forced to share that classroom for the rest of the semester? Without Title IX enforcement, there is really nothing the University can do without opening itself up to litigation. If you think they should be forced to continue on together, do you think they are likely to be successful? I contend that they are not.
If you agree to that we should do ‘something’ to assist people in being educationally successful in the face of these issues, you support the sort of processes mandated by law. After that, we are just quibbling over details.
The Harvard protocol on sexual complaints is (surprise, surprise) about as illiberal a document as could be produced, weighted so heavily against men as to kill any rational male’s desire to make whoopee with a female Harvard student. The next logical step is to segregate the sexes. Back to the Victorian era where the weaker sex must be hedged round with as many defenses as possible. The strong, confident women of the 60s and 70s would have kicked this crap out of the window. What they demanded was an equal playing field, not loaded against women or men.
Unless that student is willing to involve law enforcement, with or without the involvement of the school, I’m not sure the school should be doing anything at all.
Does anyone else find it bizarre that one of the Harvard Law School professors’ complaints is that faculty weren’t consulted about the new policy? What fucking business is it of theirs? I find this especially ironic in light of the posts in this thread about how on-campus sexual assault shouldn’t be a university matter anyway.
I note, parenthetically, that that is a ridiculous argument itself. “We’re going to expel this kid for stealing computers from the campus labs.”
“You can’t do that! He wasn’t convicted of stealing in a court of law!”
“He is carrying one across the quad right now. Look, it’s got our security barcode on it.”
“But… but…”
If one has a “sincere belief” they were sexually assaulted by another, why should this not be handed over the the courts? Sexual assault is a serious crime - or at least, it ought to be.
Our society has created this elaborate system for dealing with claims of this sort - which involves collecting evidence, sifting it in court, and convicting those found guilty.
There are reasons for this elaboration - one of which was to avoid a rush to judgment.
Your posted example seems to epitomize the type of rush to judgment in the absence of considering evidence that having legal process is designed to prevent.
“I was carrying the computer across the campus quad in broad daylight to a new lab location because Professor X wanted it moved, and asked me to assist”.
And while the courts are handling it, what do we do about the students? If they share a class, if they share a residence hall? Ignore the issue? Isn’t ignoring the issue effectively taking a side? I think the idea that the courts will sort it out…eventually…does not take the realities into consideration.
Also bear in mind that the standard of evidence employed is the standard for civil cases. So we have not simply decided to try the criminal case with a heavier burden on the accused.
People are afraid of some of the punitive measures available, and of course those are the things that make the headlines. But honestly, the biggest effect these new standards have is empowering schools to take remedial action even when there is not enough evidence to show fault on the part of one party or another. Changing class schedules, shifting residence hall assignments, etc.
Do some schools cock it up? Of course they do. It was expected- a rush to employ the new rules, followed by pushback, then equilibrium. Do I find it a better place, on balance, than where we were 20 years ago? By a country mile.
I’m okay with that, for the student claiming to have been assaulted. I’m rather less inclined to force it on the accused until and unless the accuser is willing to involve law enforcement.
Guilt should be a court of law decision. While being adjudicated, there probably should be some decisions made regarding a temporary suspension, alternative housing, shifting of classrooms, etc.
I have only been involved in one case like this, from my undergrad days. One friend accused another friend. The campus had an investigation and determined that it was a mutually drunken misunderstanding and morning-after regret. The accuser made an almost identical accusation that summer, and at that point I ceased associating with them - they had a drinking problem combined with a significantly lowered threshold combined with major issues the next morning.
So we need to protect people from themselves and others, but at the same point we need to be careful that we don’t improperly destroy the life of the accused. A few cases where a student can’t even transfer and finish their education doesn’t sit right with me either.
You are moving the goalposts. The people I referred to are saying the university should have no parallel proceeding at all, not that they shouldn’t rush to judgment.
In any event, the protections are great in the criminal justice system because the consequences are the most severe possible.
There is nothing preventing the university from changing rooming allocations etc. without making a ruling on the relative guilt or innocence of either party. You have raised the spectre of the university being liable - but that would be easy to solve by legislating protections for the university in cases like this.
After all, take your own scenario - one student accuses another of a serious crime (sexual assault). Under the stated process you are defending, the accuser takes it to the university - who then rules that, on the balance of probabilities, the assault did not occur.
Now, play the same concern you have expressed back - do you think these two are going to ‘put it all behind them’ and have an “optimal educational experience” together? After one has accused the other of sexual assault and dragged them in front of a disciplinary panel?
It just seems totally unnecessary (and creates lots of problems) to have the university making rulings on guilt or innocence in matters that would otherwise be criminal.
I don’t see it as forum shopping. The determination of whether a crime occurred should be made by the legal system.
But the decision about expulsion should be made by the university. That’s a issue between the university and the students involved. Obviously if a person is accused and convicted of a serious crime like sexual assault, the university’s decision is easy - the accused person should be expelled as they’re taken off to prison.
But I don’t think it’s appropriate for a university to set a standard that any accusation which does not result in a criminal conviction automatically gets dropped. That’s not how our legal system works. We have an existing system of civil law that works separately from criminal law. And a person can by found not guilty in a criminal court but found responsible for the same act in a civil court.
So I see no reason why a university should not take the same approach. When an accusation is made, it should be turned over to the official legal system - and the university should start its own review. And a university should not be bound to the criminal standard when it’s not a criminal court. Membership at a university is a contractual issue so the university should operate at a civil standard.
There should be a hearing of the accusation and the accuser and the accused should both have an opportunity to present their side. Then the university will have to decide where the preponderance of evidence lies. And, yes, we have to acknowledge that sometimes the evidence won’t be clear and the university may occasionally make the wrong decision.
But trying to preset the outcome is wrong. If you try to take every possible precaution to make sure every criminal is expelled or if you try to take every possible precaution to make sure no innocent person is falsely accused, you’re going to fail in your duties. Because your duty is to protect your students from both crimes and false accusations. And if you go too far in trying to do one, you’ll be failing to do the other.
The forum shopping idea is goofy. If the university believes the accusation is credible it should be informing law enforcement anyway. Indeed, part of the current Title IX investigation is over why some universities weren’t doing that.
Serious accusations require serious considerations of the evidence. True, a university panel does not have the power to imprision - it “just” has the power to expel - but being expelled, combined with the reputational damage of having been publicly branded a serious criminal (for example, “rapist”) requires, I would contend, the full array of legal protections.
Imagine for the moment the actual consequences to someone’s life of being expelled from university and being “convicted” of sexual assault - these would without a doubt be extremely grave. Similarly, the consequences of allowing a rapist to walk free would be grave. Both considerations, it strikes me, demand that criminal justice - and not merely an administrative panel - be involved.
I think I see an issue with these two points - I confess I’m hardly a legal scholar, so quite probably I’m wrong, but so far as civil rights go, aren’t protections against double jeopardy, no right to cross-examine etc. protections from the government specifically?
Yes, it would be very unpleasant if a university panel deems that a student is a rapist.
It would also be extremely unpleasant if an employer deems that an employee assaulted another in the workplace. Do you think employers should keep on employees who rape coworkers unless they are found guilty beyond a reasonable doubt?
This happens all the time. Even in cases where no fault is determined, the University has considerable latitude to pursue remedial action. And prior to this policy directive, there was no regime that allowed for this latitude that did not represent a completely arbitrary decision and even less due process than people are afraid of currently.
That said, the fault determination is important from a public safety point of view and grants the ability to institute educational sanctions, probation, suspension, expulsion, or determining that someone is persona non grata on University property.
Again, prior to federal guidelines, there was no uniform process or even policy governing sexual assault. And some school did their very best to bury accusations. Now, due process is required in a timely manner and a full hearing for parties. No one is talking about a rush to judgment.
And you know what? If an accuser was railroaded, they have options to appeal outside of the school process. Which is also a good thing.
That’s EXACTLY right. Which is the same reason why cries of “freedom of speech” don’t apply every time someone gets fired over something they say. Private employers or institutions are NOT subject to the constitutional restrictions as the federal, state, and local governments.
No, from what I’m hearing from Stonebow, the duty from the POV of the university is something like to ‘prevent disruption of the educational experience’. Making a ruling as to whether or not to expell a student based on guilt or innocence (by whichever standard) is completely orthogonal to that. The ‘educational experience’ is going to be disrupted whether the accused is found ‘guilty’ or ‘innocent’.
I simply see no compelling need to establish a seperate non-judicial system lacking procedural protections to “try” what amount to crimes - while I do see lots of drawbacks and unintended consequences. Having a multiplicity of proceedings dealing with exactly the same issue is never a good idea - every legal system acknowledges that, absent a compelling reason, it should be avoided. This case lacks a compelling reason.
University tribunals are simply not courts. They lack the specialized apparatus and powers of courts (including civil courts) for sifting evidence. They should not be making decisions sucjh as this.
