IIRC, state universities are indistinguishable from government agencies for due process purposes. Private universities are not, but the feds can attach pretty extensive strings to their money.
I would simply require as a matter of Federal law:
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Any crime reported on campus to anyone who is employed by the school or in any way acts as an agent for the school that would be classified as a felony, be handed over to the nearest police agency that is independent of the school.
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Misdemeanors can still be handled by campus police.
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The school can decide through its internal policies how to punish students accused of misdemeanors or school policy violations. For students accused of felonies they are to be limited to a few options:
a) Suspending the student until disposition of the charge
b) Allowing the student to continue attending classes until disposition of the charge
If the student is acquitted, they are to be reinstated to their previous university status and the university is disallowed from using their having been tried for a felony against them in any way. If they are convicted, then the university can decide on punishment at their discretion, but since most felonies result in prison time it will be a moot point in most of those circumstances.
I can’t agree with this. There are some behaviors that might be neither misdemeanors nor felonies but still justify a university’s taking action against a student in an administrative process. A person can be found not guilty of a felony charge in court but still deserve to be punished or kicked out of school.
I disagree because I think for particularly serious charges the university is so wholly unequipped to deal with it that we should protect persons that a court acquits of those charges. But you’re saying two things here. First you say “there are some behaviors that might be neither misdemeanors nor felonies…” and I say nothing to prohibit kicking students out for those. I said that for misdemeanors and violations of university policy then the university should be free to institute whatever discipline is appropriate.
But if they are found not guilty of an act, then the university should be barred from punishing them for the act. Primarily I want to protect students who have survived a rigorous legal challenge and been acquitted from being convicted by a university kangaroo court in which they cannot confront their accusers, cannot question the evidence against them and etc. So universities can kick you out for drinking on campus too much or whatever, but they should not be involved in any way with adjudicating serious offenses, and their only role should be to kick students out who have been convicted of those offenses or possibly suspend them (as I said) during the trial if they have safety reasons to believe doing so is necessary.
No, this is a misapplication of the role of the criminal justice system. When you are found not guilty in a criminal court, all that’s being said is that there wasn’t evidence “beyond a reasonable doubt” that you did a certain very specificly defined set of acts.
It does not mean that the court has said that you have done nothing for which society or an institution like an employer or a university should punish or shun you. That’s not the role of a court.
Here’s where you err. You call it a “rigorous legal challenge,” but the standard of proof for a criminal charge is much higher (“beyond a reasonable doubt”) than we need for a social group or a social/cultural/public institution to punish you or disassociate itself from you.
I don’t need proof beyond a reasonable doubt to kick you out my social group or my company or my educational institution or impose some kind of sanction on you. I don’t even need something that qualifies as a crime for that to happen.
As for the first point, I believe (and Martin Hyde confirms it is his intent) that “behaviors that might be neither misdemeanors nor felonies but still justify a university’s taking action against a student in an administrative process” would not bring the criminal justice system into the process and would continue to be handled entirely administratively just as they already are now – e.g. plagiarism, hostile work environment, etc.
As to the more serious felony charges that are cleared, the University should be able to address if in the process evidence is produced of what in the legal system are called “lesser included offenses” – the student in question may be acquitted of sexual assault, or of battery, or arson, or theft of property valued over $500. But the evidence may point to that in any case s/he clearly DID violate campus rules and codes of conduct regarding underage drinking, depriving others of their right to study peacefully, safekeeping of University property, “honor codes”, etc.
So the institution could still apply disciplinary action, only it may not show up on record as “expelled for serial sexual assault” or “expelled for conspiracy to commit arson” but as, say, “expelled for repeated violations of University rules on possession and consumption of alcohol on campus, student harassment, hate speech, and campus safety”. Surely, now new questions would arise: Would people say that outcome is a whitewash of the record and that the student is getting away with it, not facing the justly deserved consequences; that this is leaving the student free to strike agains somewhere else? Does this mean the University would be under public opinion pressure to *find *a reason to expel no matter what because the student-life environment would become toxic?
Plus of course there is what happens if the case IS a straight up one-said/the-other-said situation…
It isn’t the court saying that, it’s the Federal government. We can regulate State universities because they all need FAFSA and other Federal Aid and that’s how they are largely regulated now. All I’m saying is the Federal government puts in place a protection that the universities cannot expel students for any act that is also a criminal felony unless the student is convicted of said felony in court.
It’s a student protection policy to protect students from system’s that are incapable of dealing with the most complex and difficult legal issues. If it’s an issue like sneaking a girl into your dorm at an ultra-conservative Christian college or a bottle of liquor, I think the colleges are more than capable of dealing with those issues and adjudicating them appropriately. But I don’t think colleges can handle things like rape or other serious crimes.
Rigorous means that the matter has been fully tested in court. Most universities when they have hearings on sexual assault or sex crimes do not allow the student accused to confront his accuser (the schools want to protect the accuser of the stress/difficulty of it), the accused is not typically allowed legal council or etc. By going through the more rigorous legal process we know more correctly if someone deserves punishment for this charge or not, and we shouldn’t subject students to a far less rigorous proceeding if they are acquitted of the crime.
No you don’t, but for things that do qualify as serious crimes (felonies) I simply suggest schools should be regulated. Schools via accepting Federal student loan dollars and in many cases direct Federal subsidies are subject to regulation under threat of those things being revoked, and we’ve used that power regularly to impose Federal regulations on schools.
Private employers are far different.
I simply disagree. The government needs proof beyond a reasonable doubt that you committed sexual assault to put you in prison (or some other criminal punishment). The university should be able to put you on academic probation or expel you entirely just based on the fact that they believe your accuser that you engaged in bad behavior (as defined by university policy) with someone while attending the university.
That bad behavior can be anything from groping, bullying, hazing, repeated sexual-harrasment-type behavior, or full on sexual assault. Just because a court didn’t find evidence beyond a reasonable doubt to put you in prison for it doesn’t mean the university can’t kick you out if the administrative tribunal believes that you did do it.
Well, it’s school regulation so disagreements are possible–there’s no right or wrong answer. But I have read too many stories of people being expelled from school after university disciplinary hearings that provide virtually no protections for the accused over sexual harassment/assault accusations that make me feel we need a balancing act here. By forcing all of these cases into the criminal justice system I feel we both protect the accused, and also remove the ability of the university to exert control over the police (which will happen when they are part of the university) to protect important students (see: Jameis Winston and the FSU police, although FSU’s influence is such that there’s evidence the actual city police in Tallahassee were compromised as well, suggesting we may need to turn it over to higher authorities.)
Like I said, for non-felonies I’m fine with the university doing that. A lot of things you described would be misdemeanors or even in the case of bullying perhaps non-criminal policy violations. For those I’m fine with the university policing its self as it sees fit. For more serious crimes, I’m not, on either side of it (meaning I’m not okay with them punishing students for serious crimes administratively or being involved in the criminal investigation.)
Then we’re basically at an impasse. For me, a not guilty verdict in court should mean only that the government can’t put you in prison for it. I believe that the university administration should still be free to find you culpable and sanction you for what you’re accused of at a standard of proof lower than “beyond a reasonable doubt.”
True. But then you’ll have to deal with how this may turn into trial of *both *the student *and *the university administration in the Court of Public Opinion, which will likely demand tough penalties if there was even mere probable cause, or even if it all fell through at the probable cause hearing, but the complainant is sympathetic. Of course, that’s when the administrators should put their long pants on and say “this is our decision and our basis and we’ll take what heat may come from all sides”. OTOH, for decades the colleges used to routinely sweep these things under the rug, now the counterswing of the pendulum is smacking them in the face.
Would you say that for you, the purpose or necessity to prove something “beyond a reasonable doubt” is entirely or almost entirely tied up in the harshness of the punishment if found guilty? That is to say, that it should be required for trying criminal acts because being guilty would mean prison time (or worse), but because being found guilty by a university body would at most mean expulsion that it’s not necessary?
For those concerned with the dichotomy f state law/criminal prosecution and university sanctions, how do you feel about civil suits? One can be found not guilty of murder and then still be found liable for a wrongful death. Or, more on point, be found not guilty of assault and battery, but still be found liable for either or both in a civil proceeding.
In civil cases, preponderance of the evidence (51%) is all that is needed for monetary awards. Assuming that the rights of both parties are respected in the process, why is it an issue that Universities are forced into the same track for cases like these, rather than independently deciding a hodge-podge of rules that may or may not be equally administered?
Factual question: A month and a half into “Yes Means Yes”, has any body been arrested or prosecuted under the new guidelines? I ask because “Law as written” tends to take a back seat to “Law as interpreted by an actual court” and this might in fact be the case now.
Since what the California statute does is require schools to establish policies, by this point the amended policies would barely be getting published. In the case of the Harvard rules nobody would be getting “prosecuted under the new guidelines”, strictly speaking, since they are Harvard rules, not Massachussetts Penal Law. IMO give it 6 months or a complete academic semester with the law and rules in full effect to be able to get a sense of how are the laws and campus rules being applied.
These aren’t bad ideas - that’s why many universities already implement them. My alma mater has kicked two different frats off campus for just those activities.
I don’t think you’ve thought this through at all. You are effectively saying that students who do really serious things should be protected from any institutional consequences. But students who only fuck up a little bit, well drop the hammer on 'em.
And besides that, there might be all kinds of solid evidence to support the conclusion that the accused committed all manner of acts that perhaps didn’t end up showing beyond a reasonable doubt that he or she committed a feeling under XYZ criminal statute but is enough to show that this is not the kind of person we want in this institution.
Agreed. Though, also bear in mind that the law established a common definition (consent) for a policy that was already in effect (what constitutes sexual assault), a definition that some institutions were already using. So, again, we are discussing consistency. I am prepared for the language in CA to be mirrored in the next DC letter, and for it to become the national standard.
Also, to address astorian, those suggestions might cut down on assaults. However, it assumes that 1) young women want the removal of ‘party culture’ and want to be segregated into separate dorms and 2) there is no less restrictive way to ensure fewer rapes. Now, for some women, this is enough of an issue that they can choose colleges where these are fixtures, but an active social scene is a draw, or else colleges would not invest so much money in the creation and marketing of such.
“Thank you for calling the Podunk State institutional rule violation hotline. Your call is important to us. If you know the disciplinary referral code of the rule being violated, press 1. To choose from a list of disciplinary referral codes, press 2.”
<frantically presses buttons>
“You have selected ‘sorororaptio’. If you know the name of the sorority girl being raped, press 1…”