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Tags aclu , civil liberties , title IX

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Old 27th November 2018, 04:04 PM   #241
xjx388
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If a student reports another student for something that fits the definition of a crime to the University, The University should :

-file a report with the police and let the police do their investigation.
-if the student is arrested, place that student on suspension until the student is 1)not charged with a crime and cleared, 2)charged but acquitted or 3)charged and found guilty.
-if the student is not charged or acquitted, reinstate the student fully.
-if the student is found guilty, expel the student.

Why does it have to be any more difficult than that?

Now, for things that are not crimes but are violations of University Policy, then the University should have some sort of process that guarantees the rights of the violator. I think a Preponderance standard is good enough as long as both sides are guaranteed the right to present their case.
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Old 27th November 2018, 04:25 PM   #242
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Old 27th November 2018, 04:26 PM   #243
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Originally Posted by xjx388 View Post
If a student reports another student for something that fits the definition of a crime to the University, The University should :

-file a report with the police and let the police do their investigation.
-if the student is arrested, place that student on suspension until the student is 1)not charged with a crime and cleared, 2)charged but acquitted or 3)charged and found guilty.
-if the student is not charged or acquitted, reinstate the student fully.
-if the student is found guilty, expel the student.

Why does it have to be any more difficult than that?

Now, for things that are not crimes but are violations of University Policy, then the University should have some sort of process that guarantees the rights of the violator. I think a Preponderance standard is good enough as long as both sides are guaranteed the right to present their case.

Overall I would agree. A small question: the highlighted statement goes against the criminal justice presumption of innocence. But universities are not the criminal justice system and most businesses and other organizations already do the same as you propose: suspend an employee if charged with a crime.

Depending on the nature of the crime, etc. there may be ways of protecting the accuser and other students/staff while still avoiding suspension, which can be better still when possible.
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Old 27th November 2018, 07:40 PM   #244
xjx388
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Originally Posted by Giordano View Post
Overall I would agree. A small question: the highlighted statement goes against the criminal justice presumption of innocence. But universities are not the criminal justice system and most businesses and other organizations already do the same as you propose: suspend an employee if charged with a crime.



Depending on the nature of the crime, etc. there may be ways of protecting the accuser and other students/staff while still avoiding suspension, which can be better still when possible.


I think in an academic setting, it would have to be a suspension. Arrests, court dates, etc would make it hard to keep up. Suspension has a bad connotation but it’s just a pause in enrollment status to allow for the legal process to continue.


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Old 28th November 2018, 12:14 PM   #245
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Originally Posted by xjx388 View Post
If a student reports another student for something that fits the definition of a crime to the University, The University should :

-file a report with the police and let the police do their investigation.
-if the student is arrested, place that student on suspension until the student is 1)not charged with a crime and cleared, 2)charged but acquitted or 3)charged and found guilty.
-if the student is not charged or acquitted, reinstate the student fully.
-if the student is found guilty, expel the student.

Why does it have to be any more difficult than that?

This fundamentally misses the point of what the university needs to accomplish. Many forms of harassment, sexual or otherwise are simply not illegal even when they are so severe they make it impossible for the victim to remain in that environment if they were to continue. It’s not even limited to sexual harassment. Many things that are not illegal are still not acceptable in any work or educational setting, the school still has a responsibility to maintain an environment free of these things by setting and enforcing standards of behavior.


Secondly, your proposed process would put students at risk in situations where the evidence says the accused is probably guilty but for whatever reason law enforcement can’t or wont obtain a criminal conviction. In these cases, someone the evidence says is guilty would simply be put back into the same classes as their victim and other potential victims putting them at risk as well. In no other field would it be considered acceptable to have evidence you are putting people at risk but do it anyway.

The supposed “problem” this is supposed to fix schools giving preference to the victims claim, but I think it’s important to understand this [b] already violates the existing standard supported by the ACLU. The ACLU is endorsing a 50:50 standard which means they look only at the evidence and don’t bias their decision either way “just in case” the way a criminal proceeding would favor the accused or a zero tolerance policy may favor the victims testimony.

Originally Posted by xjx388 View Post

Now, for things that are not crimes but are violations of University Policy, then the University should have some sort of process that guarantees the rights of the violator. I think a Preponderance standard is good enough as long as both sides are guaranteed the right to present their case.
Redundant. The university never does anything other than enforce it’s conduct polices. The school is NOT replacing or substituting for the criminal changes, and they have reason to think a crime has been committed they should be forwarding this to law enforcement regardless.
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Old 29th November 2018, 09:38 AM   #246
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A sports writer assesses the proposed changes:

Quote:
The most squalid reality is that collegiate women are often assaulted or harassed by powerful men whom the university has a vested interest in protecting. Men such as Larry Nassar at Michigan State, a pillar of the medical school and team doctor for Olympic gymnastics. Or Jameis Winston at Florida State, the blue-chip quarterback turned admitted groper.

Yet under the new guidelines it would be more difficult than ever to file a campus complaint against any perpetrator, much less a popular one backed by a vast power structure. The very definition of sexual misconduct would be narrowed to an absurdly high standard: Unless an aggressor’s behavior was “so severe, pervasive and objectively offensive that it effectively denies” a young woman equal access to a classroom, she would have no grounds for complaint. So much for the gymnasts Nassar probed as part of his “medical treatments.”

Any case that a woman didn’t report to the right campus authorities, with the right paperwork filed to the right channels, could be discarded. It would not be enough, for instance, for a Michigan State gymnast to tell her head coach that Nassar was doing things to athletes with his ungloved hands that didn’t seem right. Or for a Baylor female athlete to send word to Briles that five of his football players gang-raped her, only for him to ask, “What was she doing around those guys” in the first place?
https://www.washingtonpost.com/sport...?noredirect=on
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Old 29th November 2018, 10:29 AM   #247
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Originally Posted by Bob001 View Post
A sports writer assesses the proposed changes:


https://www.washingtonpost.com/sport...?noredirect=on
What Nassar did was criminal. It wasn't close to borderline. It would clearly fall well within the new bounds of what schools would be required to investigate if properly reported.

And the failure to stop Nassar had nothing to do with inadequate title ix guidance. And he was reported to the police in 2004, and nothing happened to him. He was reported to the police through another doctor (doctors are mandated reporters under Michigan law, regardless of title IX) again in 2014, and nothing happened to him. And that was while the Obama title IX guidance was in effect.

So the idea that these changes to title IX will open the flood gates for more Nassars is delusional: the failures that led to his continued abuse run far deeper than title IX is capable of addressing. Nor was title IX ever intended to handle such egregious criminal behavior. That has always properly been the role of the criminal justice system, and if you want to stop future Nassars, you need to look to the failures in that system, not title IX, if you want to have any hope of that.
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Old 29th November 2018, 11:14 AM   #248
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Originally Posted by xjx388 View Post
If a student reports another student for something that fits the definition of a crime to the University, The University should :

-file a report with the police and let the police do their investigation.
-if the student is arrested, place that student on suspension until the student is 1)not charged with a crime and cleared, 2)charged but acquitted or 3)charged and found guilty.
-if the student is not charged or acquitted, reinstate the student fully.
-if the student is found guilty, expel the student.

Why does it have to be any more difficult than that?

Now, for things that are not crimes but are violations of University Policy, then the University should have some sort of process that guarantees the rights of the violator. I think a Preponderance standard is good enough as long as both sides are guaranteed the right to present their case.
I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

Let's say someone commits an assault with multiple witnesses and caught on video and confesses, but because of constitutional violations by police is acquitted. That doesn't mean other people have to ignore what happened. If a parent catches a babysitter abusing their child, but the person is acquitted, is that parent expected to rehire the babysitter? Their friends and family and neighbours to do so?

It's quite possible to be rightly acquitted criminally, given the high standard of proof, but still be more likely than not to have done something (e.g. may be not guilty but found liable in a civil suit for damages).

Whatever the standard of proof for a college expelling someone or employer firing someone should be, something less than the criminal standard should be enough to take some action. Of course, there should ideally be a spectrum of actions. Some complainants would be happy if they don't have to be in classes with the accused, for instance, depending upon what happened.

While I tend to think that people should go to the police - to protect others (very frustrating to read about someone with multiple victims, only caught because eventually someone went to the police, other victims could have been prevented if even one person had reported them before) - if someone thinks actions were a one-off that won't be repeated but they want to be protected, I can understand that point of view also.
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Old 29th November 2018, 11:37 AM   #249
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Originally Posted by Ziggurat View Post
What Nassar did was criminal. It wasn't close to borderline. It would clearly fall well within the new bounds of what schools would be required to investigate if properly reported.
....
The point is that those specific examples were obviously serious crimes. And yet university authorities protecting their own interests did nothing about them. The university is even more likely to do everything it can to minimize or ignore misconduct among students that may not rise to the level of a crime, or that even might be criminal if the victim, for her or his (and sometimes it is his) own reasons, chooses not to press criminal charges.

Yeah, the accused should have the right to see the evidence and respond to the allegations. But the university shouldn't have the option of sweeping anything under the rug.
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Old 29th November 2018, 11:49 AM   #250
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Originally Posted by epeeist View Post
I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

Let's say someone commits an assault with multiple witnesses and caught on video and confesses, but because of constitutional violations by police is acquitted. That doesn't mean other people have to ignore what happened. If a parent catches a babysitter abusing their child, but the person is acquitted, is that parent expected to rehire the babysitter? Their friends and family and neighbours to do so?
I think it makes sense for universities to conduct their own inquiry, and impose their own judgement, for exactly this reason.

However, I think it also makes sense that students should be entitled to the same standards of evidence as faculty and staff. I think it also makes sense that students should have the same "due process" entitlements as are commonly understood and expected in similar trials: cross examination, access to evidence, right of rebuttal, etc.

If a university would not fire a teacher for anything less than "preponderance of evidence" then they should not expel a student for anything less than that either. If a university would not dismiss an administrator without giving them a chance to confront their accuser, then they should not expel a student without giving them the same chance.

If universities are going to conduct trials of students at the taxpayer's expense, then those universities should apply the same consistent and equitable standards of justice that taxpayers expect and demand from their government.
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Old 29th November 2018, 11:54 AM   #251
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Originally Posted by Bob001 View Post
The point is that those specific examples were obviously serious crimes. And yet university authorities protecting their own interests did nothing about them. The university is even more likely to do everything it can to minimize or ignore misconduct among students that may not rise to the level of a crime, or that even might be criminal if the victim, for her or his (and sometimes it is his) own reasons, chooses not to press criminal charges.
Sometimes, far from ignoring such things, universities seem eager to acknowledge and address crimes that never actually happened.
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Old 29th November 2018, 12:05 PM   #252
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Originally Posted by Bob001 View Post
The point is that those specific examples were obviously serious crimes. And yet university authorities protecting their own interests did nothing about them. The university is even more likely to do everything it can to minimize or ignore misconduct among students that may not rise to the level of a crime, or that even might be criminal if the victim, for her or his (and sometimes it is his) own reasons, chooses not to press criminal charges.
The university protected Nassar because he was powerful. Students are not powerful. Universities do not have more reason to ignore student misconduct, they have far less. And that's born out by their actual conduct: universities have already demonstrated a propensity not to shield accused students, but to persecute them even when innocent.
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Old 29th November 2018, 12:35 PM   #253
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Originally Posted by epeeist View Post
I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

Let's say...<snip>
This argument is best solved by fixing the criminal justice system itself and not shoring up perceived faults through other, far more open to abuse, systems such as schools acting in a criminal justice manner.



Originally Posted by Bob001 View Post
The point is that those specific examples were obviously serious crimes. And yet university authorities protecting their own interests did nothing about them. The university is even more likely to do everything it can to minimize or ignore misconduct among students that may not rise to the level of a crime, or that even might be criminal if the victim, for her or his (and sometimes it is his) own reasons, chooses not to press criminal charges.

Yeah, the accused should have the right to see the evidence and respond to the allegations. But the university shouldn't have the option of sweeping anything under the rug.
Originally Posted by theprestige View Post
Originally Posted by Ziggurat View Post
The university protected Nassar because he was powerful. Students are not powerful. Universities do not have more reason to ignore student misconduct, they have far less. And that's born out by their actual conduct: universities have already demonstrated a propensity not to shield accused students, but to persecute them even when innocent.
All of these are great support for my earlier statement in this thread: that the schools have skin in this game and are thus not neutral judges which means that it's an inherently biased system and for that reason alone, should not be utilized.
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Old 29th November 2018, 01:54 PM   #254
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Originally Posted by The Norseman View Post
This argument is best solved by fixing the criminal justice system itself and not shoring up perceived faults through other, far more open to abuse, systems such as schools acting in a criminal justice manner.

All of these are great support for my earlier statement in this thread: that the schools have skin in this game and are thus not neutral judges which means that it's an inherently biased system and for that reason alone, should not be utilized.
But as noted, many of these issues are not criminal matters, and even when there is a potential crime a victim might choose not to press charges. The college shouldn't do anything? The victim has no recourse? There's no reason why a university can't develop a fair process to adjudicate violations of its own rules, and there's no reason why it shouldn't be required to do so.
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Old 29th November 2018, 02:44 PM   #255
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Originally Posted by epeeist View Post
I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

Let's say someone commits an assault with multiple witnesses and caught on video and confesses, but because of constitutional violations by police is acquitted. That doesn't mean other people have to ignore what happened. If a parent catches a babysitter abusing their child, but the person is acquitted, is that parent expected to rehire the babysitter? Their friends and family and neighbours to do so?

It's quite possible to be rightly acquitted criminally, given the high standard of proof, but still be more likely than not to have done something (e.g. may be not guilty but found liable in a civil suit for damages).

Whatever the standard of proof for a college expelling someone or employer firing someone should be, something less than the criminal standard should be enough to take some action. Of course, there should ideally be a spectrum of actions. Some complainants would be happy if they don't have to be in classes with the accused, for instance, depending upon what happened.

While I tend to think that people should go to the police - to protect others (very frustrating to read about someone with multiple victims, only caught because eventually someone went to the police, other victims could have been prevented if even one person had reported them before) - if someone thinks actions were a one-off that won't be repeated but they want to be protected, I can understand that point of view also.
I can see your point here but I'd like to see a real life example in order to go further. There would have to be some real screw ups in order for a confessed assaulter caught on video with multiple live witnesses to go free. I will grant that if the University has clear and convincing evidence then they should be free to conduct their own hearings in such a case as long as due process is followed. I don't think preponderance of the evidence should be sufficient in such a "failed prosecution" scenario.

For violations of University policy, I have no problem with preponderance.
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Old 29th November 2018, 02:49 PM   #256
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Originally Posted by Bob001 View Post
But as noted, many of these issues are not criminal matters, and even when there is a potential crime a victim might choose not to press charges. The college shouldn't do anything? The victim has no recourse? There's no reason why a university can't develop a fair process to adjudicate violations of its own rules, and there's no reason why it shouldn't be required to do so.
For a crime, the recourse IS the justice system. Is a school supposed to investigate the matter on their own? Is the accused to have no chance to mount a defense and cross examine the accuser? Is anything less than reasonable doubt appropriate? I think the answer to these questions is a resounding no.

If the accuser refers a potential crime to the University, the University should be duty bound to refer the matter to the police; not play act at being the police, judge and executioner (professionally anyway).
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Old 29th November 2018, 03:52 PM   #257
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Originally Posted by xjx388 View Post
For a crime, the recourse IS the justice system. Is a school supposed to investigate the matter on their own? Is the accused to have no chance to mount a defense and cross examine the accuser? Is anything less than reasonable doubt appropriate? I think the answer to these questions is a resounding no.

If the accuser refers a potential crime to the University, the University should be duty bound to refer the matter to the police; not play act at being the police, judge and executioner (professionally anyway).
And if the victim chooses not to go to the cops -- and many don't, for well-understood reasons -- or some overworked small-town cop shop decides not file charges, should the university consider the matter closed? Everybody should pretend nothing happened? And what about misconduct that doesn't rise to the level of a crime? Universities are free to set their own standards. The question is by what process should those standards should be enforced?

And "beyond reasonable doubt" is only the standard in criminal trials. It is not the standard in civil suits or administrative proceedings or in most spheres of life. If you suspect a plumber does bad work, you don't have to hire him to work on your house. If you suspect your employee of theft, you can fire him. I repeat, a university is a voluntary membership organization. It can set the conditions for membership.
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Old 29th November 2018, 07:49 PM   #258
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Originally Posted by Bob001 View Post
And if the victim chooses not to go to the cops -- and many don't, for well-understood reasons -- or some overworked small-town cop shop decides not file charges, should the university consider the matter closed? Everybody should pretend nothing happened? And what about misconduct that doesn't rise to the level of a crime? Universities are free to set their own standards. The question is by what process should those standards should be enforced?
Forget about non-crimes for a moment. If a victim does not want to go to the police, why would they go to the University?

Quote:
And "beyond reasonable doubt" is only the standard in criminal trials.
And if a University is investigating a crime and then trying the accused in a proceeding that could ruin their lives, why should it be less?


Quote:
It is not the standard in civil suits or administrative proceedings or in most spheres of life. If you suspect a plumber does bad work, you don't have to hire him to work on your house. If you suspect your employee of theft, you can fire him. I repeat, a university is a voluntary membership organization. It can set the conditions for membership.
Apples and Oranges.

If you suspect a student cheated, you don’t just say, “you are expelled.” A university is not just a voluntary membership organization, it’s usually a State institution and even when it isn’t, it’s a part of your “permanent record.” Anything that happens there greatly affects your future prospects.

If I fire that employee, it’s very likely no one else will ever know. Ditto the plumber.



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Old 30th November 2018, 05:27 AM   #259
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College athletes under Title IX

Originally Posted by Bob001 View Post
A sports writer assesses the proposed changes:


https://www.washingtonpost.com/sport...?noredirect=on
A couple of things struck me about this article. "While an accuser waits for the legal outcomes, she would be forced to attend classes with her assailant. 'Victims would be required to go to school with their rapists,' points out Nancy Hogshead-Makar." One point of having a proceeding is to decide whether or not there was a victim. This pernicious use of language shows up frequently in discussions of Title IX.

"She [Catherine Lhamon] noted that absent the high attention such allegations received, the campus sexual assault movement 'would be largely nonexistent.' Lhamon added, 'The capturing of the hearts and minds of the American public is what has moved this issue. The response of student communities to sexual violence among athletes has been really important.' Yet, for every Jameis Winston case, there is a Patrick Witt case or a Jack Montague case, both athletes at Yale. In the latter, the University did not follow its own rules and may have provided the accuser with dubious information. Therefore, even if one restricts oneself to high-profile college athletes, the school does not always tilt toward the accused. Furthermore, incidents involving college athletes are not typical Title IX cases.

This U of M case might be a good one to begin a survey of the procedural flaws of the post-2011 system.
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Old 2nd December 2018, 03:06 PM   #260
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The ACLU’s J’Accuse

KC Johnson and Stuart Taylor wrote an article about the ACLU's response. They noted "U.S. District Judge James Browning of New Mexico went further, holding that 'preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.'"
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Old 2nd December 2018, 03:20 PM   #261
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Originally Posted by Chris_Halkides View Post
KC Johnson and Stuart Taylor wrote an article about the ACLU's response. They noted "U.S. District Judge James Browning of New Mexico went further, holding that 'preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.'"
Really good article! Thanks for sharing.
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Old 2nd December 2018, 08:28 PM   #262
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Originally Posted by Bob001 View Post
But as noted, many of these issues are not criminal matters, and even when there is a potential crime a victim might choose not to press charges.
True.


Quote:
The college shouldn't do anything?
Right.


Quote:
The victim has no recourse?
Of course the victim has recourse. In your example, however, they chose not to go to the proper authorities.

We can and should support victims and if the criminal justice system needs changing in order to do that, we then must change it.

Tossing in a biased source which will protect its own interests over that of justice, fairness and truth is not the way to do so.


Quote:
There's no reason why a university can't develop a fair process to adjudicate violations of its own rules, and there's no reason why it shouldn't be required to do so.
In the case of a crime being committed and in light of the obvious bias which cannot be avoided, I think are two legitimate reasons why they can't develop a fair process and should not be required to.

A better solution would be an actual neutral, unbiased, OUTSIDE and confidential panel or judge or similar who can then be counted on to at least remove the hideous pressure that the school places on the topic.


Originally Posted by Bob001 View Post
And if the victim chooses not to go to the cops -- and many don't, for well-understood reasons -- or some overworked small-town cop shop decides not file charges, should the university consider the matter closed?
Yes. Or do you wish to go against what the victim themselves choose?


Quote:
Everybody should pretend nothing happened?
No. Victim support is still necessary and useful if nothing else.


Quote:
And what about misconduct that doesn't rise to the level of a crime?
Good question. Who gets to decide that though? And, on second thought, if an action doesn't rise to the level of a crime, why should a person be punished for it regardless?


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Universities are free to set their own standards.
They shouldn't be in these instances.
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Old 3rd December 2018, 06:29 AM   #263
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Binding arbitration.
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Old 3rd December 2018, 10:15 AM   #264
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case at George Mason University

Originally Posted by theprestige View Post
Binding arbitration.
That might be especially appropriate for a case at George Mason. I am not sure whether or not the ACLU has a position on this case.
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Old 3rd December 2018, 11:18 AM   #265
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Originally Posted by Chris_Halkides View Post
A couple of things struck me about this article. "While an accuser waits for the legal outcomes, she would be forced to attend classes with her assailant. 'Victims would be required to go to school with their rapists,' points out Nancy Hogshead-Makar." One point of having a proceeding is to decide whether or not there was a victim. This pernicious use of language shows up frequently in discussions of Title IX.

"She [Catherine Lhamon] noted that absent the high attention such allegations received, the campus sexual assault movement 'would be largely nonexistent.' Lhamon added, 'The capturing of the hearts and minds of the American public is what has moved this issue. The response of student communities to sexual violence among athletes has been really important.' Yet, for every Jameis Winston case, there is a Patrick Witt case or a Jack Montague case, both athletes at Yale. In the latter, the University did not follow its own rules and may have provided the accuser with dubious information. Therefore, even if one restricts oneself to high-profile college athletes, the school does not always tilt toward the accused. Furthermore, incidents involving college athletes are not typical Title IX cases.

This U of M case might be a good one to begin a survey of the procedural flaws of the post-2011 system.

You seem like you are just throwing stuff against the wall hoping something will stick instead of developing a cogent argument as to why the process schools follow should favor the accused.

“It’s wrong to favor the accuser” is not a sound argument for favoring the accused instead. The standard the ACLU is arguing for a 50:50 standard for the treatment of accused and accuser in these cases. A process weighted towards the accuser is not 50:50 either so it’s not what the ACLU is supporting so its not relevant.
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Old 3rd December 2018, 11:21 AM   #266
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Originally Posted by lomiller View Post
You seem like you are just throwing stuff against the wall hoping something will stick instead of developing a cogent argument as to why the process schools follow should favor the accused.

“It’s wrong to favor the accuser” is not a sound argument for favoring the accused instead. The standard the ACLU is arguing for a 50:50 standard for the treatment of accused and accuser in these cases. A process weighted towards the accuser is not 50:50 either so it’s not what the ACLU is supporting so its not relevant.
Do you think it's a good thing that we use a very high standard for criminal trials? If so, why?
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Old 3rd December 2018, 11:23 AM   #267
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Originally Posted by lomiller View Post
You seem like you are just throwing stuff against the wall hoping something will stick instead of developing a cogent argument as to why the process schools follow should favor the accused.

“It’s wrong to favor the accuser” is not a sound argument for favoring the accused instead. The standard the ACLU is arguing for a 50:50 standard for the treatment of accused and accuser in these cases. A process weighted towards the accuser is not 50:50 either so it’s not what the ACLU is supporting so its not relevant.
From the earlier cited article:

"But this view imagines the Title IX process as a contest between accuser and accused, rather than what it is: a process in which representatives of the college effectively investigate and prosecute the accused, with the accuser as the chief witness. As the Foundation for Individual Rights in Education (FIRE)—which has become the nation’s preeminent champion of civil liberties on campus and been tireless on the issue of the 2011 guidance—noted, “Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.” The American Association of University Professors has made a similar point. So has the American College of Trial Lawyers.

This year, moreover, federal judges hearing lawsuits against the University of Colorado and the University of Mississippi suggested that the preponderance standard in Title IX sexual-assault proceedings is itself unlawful. U.S. District Judge James Browning of New Mexico went further, holding that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.”
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Old 3rd December 2018, 01:59 PM   #268
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Originally Posted by Ziggurat View Post
Do you think it's a good thing that we use a very high standard for criminal trials? If so, why?
In a criminal trial the State make take away basic freedoms or even the life of the accused, neither of which is the case here. “Attending my preferred school” is not and never has been a right. Even in civil cases (which this still is not) involving more serious damage are decided by preponderance of the evidence rules.
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Old 3rd December 2018, 02:18 PM   #269
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Originally Posted by The Big Dog View Post
“Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.”
Schools make the “life altering decision” of who can/can’t attend all the time without any requirement for due process. Admissions, academic standards and even other conduct violations do so with far less “due process” than what the ACLU is arguing for in cases of sexual harassment. Why are you proposing people the evidence says are guilty of sex crimes be afforded special protections?
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Old 3rd December 2018, 02:29 PM   #270
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Originally Posted by lomiller View Post
In a criminal trial the State make take away basic freedoms or even the life of the accused, neither of which is the case here.
Higher standards apply in less serious criminal cases as well, when the punishment may just be a fine. Do you agree with that?
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Old 3rd December 2018, 02:34 PM   #271
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Originally Posted by lomiller View Post
Schools make the “life altering decision” of who can/can’t attend all the time without any requirement for due process. Admissions, academic standards and even other conduct violations do so with far less “due process” than what the ACLU is arguing for in cases of sexual harassment. Why are you proposing people the evidence says are guilty of sex crimes be afforded special protections?
It seems to be very clear that you did not read the article that was posted earlier, because those claims about "other conduct violations" are false (and the other two are have nothing to do with the subject at all). In fact the article points out that people accused of sex related conduct violations get LESS protection than other violations.

The statement quoted in bold however demonstrates with certainty that you are applying the standard of guilty until proven innocent, really remarkable...
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Old 3rd December 2018, 06:05 PM   #272
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Meet John Doe

Originally Posted by lomiller View Post
You seem like you are just throwing stuff against the wall hoping something will stick instead of developing a cogent argument as to why the process schools follow should favor the accused.

“It’s wrong to favor the accuser” is not a sound argument for favoring the accused instead. The standard the ACLU is arguing for a 50:50 standard for the treatment of accused and accuser in these cases. A process weighted towards the accuser is not 50:50 either so it’s not what the ACLU is supporting so its not relevant.
Perhaps you did not notice that I was writing in response to the WaPo article, which brought student-athletes into the discussion. My response can be summarized (a) Although schools might be inclined to "turn a blind eye" to star football or basketball players, these are highly atypical circumstances that do not have anything to do with, say, a typical business major, and (b) even some football or basketball players are treated poorly in Title IX proceedings.

With respect to the question of the correct standard of evidence, there are several problems with the position taken by the ACLU. One is that schools have had the option to move to clear-and-convincing for about a year, and Johnson and Taylor indicated that none has to the best of their knowledge. One wonders why the ACLU would focus on it. Two is that the subpoena power and discovery are available in the civil court system but not in Title IX proceedings. Therefore any analogy between the two is flawed. From a John Doe case against Harvard University: "For example, he will have subpoena power to obtain witnesses and documents—something that he will not have in Harvard’s campus proceeding. And he will have the right to cross-examine Ms. Roe and any other witness— something that, again, he will not have the right to do in Harvard’s campus proceeding.2" (same link as next paragraph)

Three is that the consequences for a finding of responsibility can be more serious than you have indicated. "Furthermore, Mr. Doe has been, and is being, subjected to a grave risk of an incorrect, and devastating, finding of responsibility for violating Harvard’s Sexual and Gender- Based Harassment Policy: in short, a grave risk of being incorrectly branded a rapist. That would be a finding that would be reflected on his transcripts and would, at the least, substantially limit his opportunities for employment or graduate schooling." Link. A 2015 (?) article in The Economist quoted a college president to the effect that Title IX proceedings have the power to inflict career capital punishment. I provided a link to an article on the issue of marking transcripts upthread.

I agree with other commenters here who have faulted the ACLU on logical grounds. The whole notion that it the accused versus the accuser is incorrect. The accuser is not punished if the accusation is deemed not to have met the standard of evidence, but the accused is punished.
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Old 3rd December 2018, 08:26 PM   #273
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Thanks Chris for your terrific posts in this thread.
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Old 4th December 2018, 07:59 AM   #274
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deleted.

low-quality post.
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