It reads to me like they through in a bunch of good stuff to be able to sneak in the bad stuff, because that definition of “sexual harassment” is not a good one, and obviously the point of contention.
Interfering with education and preventing equal access neither one have anything to do with what sexual harassment is. You can harass someone without them being unequal, since you can just harass both men and women. And education is arguably not impacted if the students can both still go to school. And any person could say it’s not 'grossly offensive" despite it being something that a reasonable person would agree should not happen.
Sexual harassment is unwanted sexual communication. It is either that which a reasonable person would know is unwanted, or that which has explicitly been declared to be unwanted. Any further restrictions is an attempt to let some harassers get by.
You know, it’s nice that you allowed some sort of due process, although I’d be interested to hear a more comprehensive explanation of how it actually worked.
Unfortunately, there are a lot of universities in the United States that have effectively jettisoned any sort of due process when it comes to sexual harassment and sexual assault accusations. Many lack a presumption of innocence for the accused; many disallow any sort of cross-examination of complainants or witnesses; and many also refuse to allow the student to have a lawyer present, or they allow a lawyer but forbid the lawyer from actually representing the student in any meaningful way. I’ve read about a number of cases where clearly exculpatory evidence was flat out rejected by the Title IX investigators.
The broader problem is that, on many campuses, the people charged with handling Title IX complaints are simply not competent to do so. They’re generally not experienced investigators, and they often work from guidelines that are, at best, vague and nebulous, and that allow massive amounts of discretion in what counts as evidence, and what sort of witness testimony or evidence will be admitted. They often have rather arbitrary standards for assessing guilt, and a very low bar for punishments such as suspension or expulsion.
I had a faculty member (and colleague) on my campus, who was involved with the committee that formulated our campus procedures, tell me that she believed that ANY male student who was subject to a sexual misconduct accusation by a female student should be immediately suspended from the university, before an inquiry even began. Her position was that, if the investigation demonstrated his innocence, his suspension could then be lifted.
There have been a number of court cases where both public and private universities have been ruled by state or federal courts to have violated due process rights and other rights of accused students of Title IX violations. There was one at USC (California Court of Appeals) a couple of years back, and one at the University of Michigan (6th Circuit Court of Appeals) last year. Here in New England, just a couple of months ago, a judge (US District Court, Connecticut) reprimanded the University of Connecticut for its lack of due process expelling an accused student. During the investigation, the university refused to hear testimony from people who could directly rebut some of the assertions made by the accuser. The judge issued a temporary restraining order against the expulsion. There are others; those are just a few off the top of my head.
I think that the Me Too movement has undertaken essential and admirable work on campus and in our society more generally, and I think that taking sexual assault, harassment, and other misconduct seriously was long overdue. But you can’t throw out due process along with it, and there have been too many university administrators and Title IX officers on campus willing to do exactly that.
Okay, but what does that have to do with the rule change–the subject of this thread/ What you are describing seems like it would be bad no matter what the rules say. It’s just universities not doing their job.
Is your argument that the still unstated Obama-Biden rules did not include any provisions to ensure due process? Because, if so, I’d expect that DeVos would be pushing that argument, instead of citing “free speech.”
I also don’t see why the #MeToo movement needs to be brought up at all, since the movement started in 2017, and thus would postdate any “Obama-Biden” rules for obvious reasons.
As is, the rule changes implement common sense changes that I would expect Biden to agree with, and then one change that is horrible, making it sure that some forms of sexual harassment could be proven but the university be unable to do anything about it.
The only thing I could see happening with the universities’ incompetence is that they’d see it as a signal that it’s better to err on the other side, and thus, rather than being unfair towards the accused, they become unfair towards the accusers just to cover their asses.
I can’t find a current statement, but it sure seems to me that a lot of their complaints in 2019 still apply, and I definitely don’t see their proposed changes implemented in the rules.
They want a lawyer in charge of making sure that due process is dealt with, and hate the narrowing definition of sexual assault and the way the rules give them liberty to avoid dealing with the situations at all.
Wasn’t this the law that Republo-scum tailored to specifically get Gym Jordan off the hook for all of the sexual assaults that he knew about happening in Ohio State locker rooms, but didn’t report?
This. Exactly this. Couldn’t Biden acknowledge any of this?
I mean, let me be clear: I would be surprised if DeVos has every detail right on this because she’s never shown signs of being right on much of anything before. She has been a hardcore supporter of vouchers for private schools (even religious schools) and for charter schools, both of which I as the husband of a public school teacher and union member staunchly oppose. She suspended Obama-era rules protecting students who go to predatory for-profit colleges. She watered down regulations for disabled students, which is doubly fucked up for our family because my wife teaches special education and our two youngest children have autism. She even tried to cut funding for Special Olympics! She’s a shitty person.
But that doesn’t mean Biden has to reflexively oppose any move she makes and vow to 100% flip it back to how it was. Why not propose a new third set of guidelines for universities that is better than either what was done in 2011 and what DeVos did now?
Since when is debate not allowed in IMHO? And what in my posting history suggests to you that I want to “avoid debate”?
What I “admitted” would be true if 49% of reported rapes were false accusations! (The actual percentage, per Wikipedia, is 2-10%.) Is that your standard? It’s far too low a bar IMO.
Once again, no cite. I have provided cites for multiple times I absolutely roasted Trump and Republicans in no uncertain terms, and there are plenty more where those came from. Put up or…
:rolleyes: If I don’t march in lockstep on every single issue, but still make it clear that I strongly prefer Democrats because they are in the right 90%+ of the time, that’s the mask slipping off? That kind of purity standard is stifling, sad, frankly kind of disturbing.
Declared to be unwanted, and then the communicator persists? That should be punishable, absolutely. Declared unwanted and then the person making the communication is retroactively punished, even if they did not persist after being made aware that the communication was unwanted? Not so fast. For that and the “reasonable person” bit, too much of this can come down to “if a good-looking, charismatic guy says it, it’s not sexual harassment; but if an unattractive and awkward guy says it, it is.” :dubious:
In any case, FWIW, my issue here is about the investigation and “prosecution” of rape and sexual assault. Not about the sexual harassment portion of the rules, which I have not really looked into.
One of the central arguments in favor of the rule change, made by the Education Department and by supporters, is precisely that it will ensure a much greater level of due process in these cases.
Well, I won’t go so far as to say that it included NO provisions to ensure due process, but it was pretty bad.
For example, it set the standard for finding guilt in Title IX cases as “preponderance of the evidence.” That basically means that if the investigators think that it’s pretty much a coin flip as to whether the alleged conduct happened or not, but they believe that the accuser is 51% likely to be right, then the accused can be found responsible. That makes even he said/she said cases, with nothing but the word of the two parties involved, very likely to result in a findi9ng against the accused.
Here’s the relevant section from the 2011 letter:
For a proceeding which can, and has, expel a student from a university within a few weeks of graduation, causing repercussions that will reverberate throughout the rest of that student’s life, this is a problematic standard of evidence, especially when applied across all types of possible cases.
The new rule does not eliminate use of the “preponderance of the evidence” standard, but it also allows use of the “clear and convincing evidence” standard, which is more robust and far more appropriate for a lot of cases. It requires schools, also, to make clear in its grievance procedure which standard is being used.
This low burden of proof was not, by itself, the end of the world. If you get due process protections, at least you can make a reasonable defense, even in a “preponderance of the evidence” case. But the 2011 letter also limited due process for the accused. For one thing, the letter didn’t require schools to allow lawyers or advisers into the proceedings. Also:
I understand that it can be frightening and intimidating for an accuser to face her alleged assailant and answer questions about the incident, but until a determination has been made about culpability, that’s all he is: an ALLEGED assailant. And if the purpose of the investigation really is to determine what happened, then the accused needs an opportunity to address questions about the incident directly to the accusing party. The new rule requires:
I think that this is a reasonable and equitable procedural requirement.
The Obama-era rule also allowed complainants to appeal if the accused was found “not responsible,” which flies in the face of how justice is supposed to work. Once the accused is exonerated once, that’s supposed to be it.
Now, of course, these aren’t criminal trials, so double jeopardy and other assorted principles don’t officially apply. But I think that these proceedings have to at least have a semblance of what we understand as equal protection and due process, especially when they’re being mandated by the federal government as a condition for universities qualifying for programs like Pell Grants, student loans, etc., etc.
What’s worse is that, in the years after the 2011 letter was released, the Office of Civil Rights came down hard on a bunch of colleges and universities, pushing them towards proceedings that had less and less due process, and that were increasingly weighted against the accused. Title IX coordinators and other investigators on campus increasingly saw themselves not as finders of fact, but as advocates for the accusers. It often, on some campuses, seemed like there was no neutral fact-finder involved in these cases at all.
On some campuses, Title IX investigations have even been conduced in the absence of a complaint from the alleged victim, or when the alleged victim actually says “He didn’t do it.” If you have some time, look up the case of Grant Neal, from the University of Colorado at Pueblo. He gave his girlfriend a hickey, which was noticed by one of the girlfriend’s co-workers on campus. The co-worker filed a complaint against Neal for non-consensual sexual contact, and the university proceeded with an investigation that concluded by effectively expelling Neal from the university (he received multiple, ongoing one-year suspensions). All of this happened despite the fact that the woman with whom he wad the sexual relationship made very clear to the university that the sex was consensual, and that Neal wasn’t a rapist.
Neal sued the university, and in 2017 they reached a settlement. Unfortunately, it contained a confidentiality clause, so we’ll never know what the terms were.
It’s worth noting that Neal is black, and some investigations, including by the Justice Department and by scholars at Harvard University, have revealed that black men are disproportionately targeted by Title IX claims on campus. A few years back, one investigation at Colgate University found that over 40 percent of the campus’s Title IX complaints were made against black male students, despite the fact that they made up less than 5 percent of the campus population.
If the new directive from the Department of Education makes it less likely that we’ll see cases like this, then I think it’s a good thing.
But the definition of sexual harassment that the new rules incorporate is entirely appropriate, your ill-informed caviling notwithstanding. Your discussion of what is unequal and what does and does not affect education in Post #19 is laughably ignorant, and displays a complete lack of familiarity with how the law works in this area, and how Title IX has been enforced on some campuses over the past seven or eight years.
Here’s the complaint (PDF). The plaintiff’s description of the incident and the university’s response starts on page 16.
Obviously, because this is the complaint, it’s told from the point of view of the plaintiff. We’ll never know whether everything in the complaint is completely accurate, or what other information might be lacking, because the case was settled before the merits could be addressed in court. It seems likely to me, though, that the central issues probably happened pretty much as stated.
The original complainant was, according to the lawsuit, someone who only knew about the sexual contact second-hand, and did not witness it herself and did not learn about it until the next day. It seems unlikely that a lawsuit would make a claim like this unless it were true and could be demonstrated in court.
Similarly, it seems unlikely that the suit would claim, unless it were substantially true, all of the other evidence allegedly showing that the sex was consensual, including texts and testimony from the alleged victim of the sexual assault saying that the sex was consensual, and also admitting to having consensual sex with the accused on the day after the complaint was lodged by the third party. This is the sort of evidence that would be incredibly easy to confirm in a trial.
Because a lot of people are morons who are incapable of admitting when they are wrong, and so keep pressing forward because they know their actions will not have an detrimental affect on themselves, and they don’t care about the people they are hurting.
I mean, I’m obviously completely on record as believing these proceedings are kangaroo court show trials to some extent, but I still have a hard time wrapping my mind around their being so Kafkaesque as to move forward against a “rapist” when the woman he is claimed to have raped never once deviates from saying it was consensual.
Kafka does not just live in Colorado; he can also be found in Los Angeles, at the University of Southern California.
The USC football team’s kicker, Matt Boermeester, was removed from the football team and suspended from the university following a complaint made by a third party who never saw the alleged incident, and despite the fact that the alleged victim was Boormeester’s girlfriend, who made clear to the university’s investigators on numerous occasions that nothing untoward had occurred.
Boermeester’s federal case is currently on hold, awaiting the outcome of his state case against USC. The state case was argued in early March, and the opinion is due at the start of June. This blog post, by an academic from the CUNY Graduate School, discusses the case, and notes that the oral arguments seemed to go very well for Boermeester and pretty badly for USC. His post has some snippets of recordings from the oral arguments, and the judges don’t seem very impressed by USC’s arguments.
Cases like this make me either wish I was a lawyer, or glad I’m not a lawyer. I mean, the whole case depends on a grainy video of Boermeester touching his girlfriend’s neck? Despite the fact that the girlfriend swore nothing bad happened? How does this just not get immediately ruled on?
Yeah, I asked for a more comprehensive explanation of the procedures earlier, but he hasn’t been back to the thread yet.
I’m sure that he feels that the procedures were fair and equitable—and they might well have been—but I’ll bet if you asked the Title IX people who ran the investigations that I’ve discussed in this thread, they would probably also swear up and down that they had been fair and impartial in their procedures and their adjudications.
As I say, this is completely stunning to me – and I started this thread!
What I had more in mind in terms of college guys getting railroaded is instances where there is a hookup and the woman thinks it is some kind of love affair, but then the guy treats her like a discarded conquest afterward. Not nice behavior but also something he has the absolute right to do, at the jeopardy only of his social reputation. Or another category would be cases where the woman is not passed out or unaware of her surroundings or what is happening, but the next day has regrets and feels like she would not have slept with the guy if she had not been drunk. (I had a woman in college say this to me once, that she wouldn’t have slept with me if she hadn’t been drunk. My retort? “That makes two of us: I wouldn’t have slept with YOU if I had not had those beer goggles on!“ FWIW although this was 100% true, I never would have said something so mean she had not offended me first. Also FWIW, she was the sexual aggressor and was obviously embarrassed about it because she liked to think she had a “good girl” image.)
Since when is debate not allowed in IMHO? And what in my posting history suggests to you that I want to “avoid debate”?