The mess of Title IX in US colleges

UPDATE: Betsy DeVos has just reversed the “Dear Colleague” policy. As the New York Times notes in a brief report:

Reversing a key part of government policy on campus sexual assault, Education Secretary Betsy DeVos on Friday issued new temporary rules that could give accused students greater protection against campus rape and sexual misconduct claims.

Ms. DeVos said that colleges may now use a higher standard of evidence before finding students responsible for sexual assault, a decision that can lead to discipline and even expulsion.

The change, the latest in a widespread rollback of Obama-era rules by the Trump administration, had been long sought by advocates of accused students, mostly men, who had complained that campus judicial processes had become heavily biased in favor of women accusers.

The rules, a sharp break from the Obama administration’s directives, will now permit colleges and universities to raise their evidence requirements to a “clear and convincing standard” of proof. The Obama administration had demanded colleges use a lower “preponderance of evidence” standard.

The interim rules permit colleges to maintain the preponderance standard if they so choose, but the change suggests Ms. DeVos wants colleges to consider adopting the higher standard, if not actually forcing them to do so. The rules will remain in effect while the Education Department seeks public comment on a permanent set of rules.

I suspect that most colleges will keep the “preponderance of evidence” standard out of simple inertia—unless lawsuits by those found guilty start to accumulate.

*****************************

In 2011, the Office for Civil Rights (“OCR”) of the U.S. Department of Education sent its famous “Dear Colleague” letter to American colleges and universities, suggesting how sexual harassment and assault cases should be handled. Before that, it was pretty much up to the colleges how to handle such in-house investigations, and different colleges used different standards of evidence.  There are three that could be used (see here for more explanation):

  • Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
  • Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
  • Conviction requires a “preponderance of the evidence” for assault or hasassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

Criminal courts in the U.S. use the first standard for conviction. The “clear and convincing” standard is used in some administrative court determinations and certain civil or criminal cases (a prisoner seeking habeas corpus relief from capital punishment, for instance, must prove his innocence using this standard). The “preponderance” standard is used in civil and family courts; it is, for instance, the reason why O. J. Simpson was found guilty of by a civil court for damages in the murder of Nicole Brown Simpson and Ron Goldman, thus owing them lots of money even though he was exonerated in his criminal trial.

The “Dear Colleague” letter, although said by the Obama administration to be only “advisory”, made a strong suggestion that adjudicating sexual assault cases in colleges should use the lowest standard of proof. Here’s an excerpt (my emphasis):

As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq.

. . . Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence

The rationale, as you see, put the Title IX standards in line with that of civil rights violations rather than criminal actions. Although this was touted as a “guideline”, it was made clear that colleges might suffer withdrawal of federal funds if they didn’t adhere to the 2011 standards, and also be subject to on-site inspection by the OCR. Virtually every college now adheres to the standards laid out in the “Dear Colleague” letter.

If you’ve followed the news even cursorily, you know that there were other provisions of the letter (like allowing a form of double jeopardy for the accused) that led to a mess and a bunch of lawsuits by those who were convicted—almost all men. Students could be tried even if the “victim” didn’t complain or even denied that any assault took place: a simple third-party complaint would do. And professors got in trouble merely for discussing other people’s cases, making them subject to their own Title IX complaints (see the recent article in the New Yorker, “Laura Kipnis’s Endless Trial by Title IX“). For other reports of how Title IX has led to widespread confusion, see the articles here and here, as well as Emily Yoffe’s three-part series in The Atlantic (links here).

In response, four women professors at Harvard’s Law School have called for the use of the “preponderance of evidence” standards previously used by Harvard. Further protests were summarized in a letter by 21 law professors:

Criticisms of OCR Criticism of OCR’s enforcement of its directives has come from a broad range of stakeholders, including law professors, civil libertarians, and others. This is a sampling:

  • Twenty-eight Harvard Law professors protested that OCR’s directives“lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”
  • University of Pennsylvania law professors expressed “outrage” at the fact that campus sexual assault has become “a justification for shortcuts in our adjudicatory processes,” criticizing the practice as “unwise” and contradicting “our principles.”
  • Members of the U.S. Commission on Civil Rights noted OCR’s “disturbing pattern of disregard for the rule of law” in addressing campus sexual violence and observed that “nowhere in the text of Title IX, which has been used to justify the school’s need to adjudicate outside the justice system, or in earlier Office for Civil Rights regulations does it state such a low burden be used.”’
  • Elizabeth Bartholet, a Harvard professor of civil rights, has described OCR’s policies restricting the due process provided to accused students as “madness.”
  • Cornell University professor Cynthia Bowman reported “general agreement among faculty at the Law School that the procedures being proposed are Orwellian.”

Professional organizations have expressed concerns, as well:

  • The American Association of University Professors warned OCR that use of the lower standard of proof would “erode the due process protections for academic freedom.”
  • The National Association of Scholars has urged Congress to “[r]ein in education administration on ‘unlawful’ bullying, sexual assault policies.”

The mess that we’re in started as an admirable attempt to make sure that women were treated equally on campuses (the original purpose of Title IX) and then later to ensure that as few sexual assaults as possible would occur on campuses. We’re all in favor of these things. But the mess came from two sources: the reduction of the standard of evidence for guilt to the lowest possible bar, and to adjudicating criminal acts by colleges acting on their own rather than using the legal system. Further, universities aren’t really set up for this kind of trial system, and widely varying standards of evidence and procedure resulted. Some of the stories are frightening.

Education Secretary Betsy DeVos recently announced that the Trump administration is going to look at the Obama standards and perhaps change them, tightening the standards of evidence. This has been met with outrage by liberals and feminists as the Trump administration’s attempt to “normalize” rape culture. (Surprisingly, an article in the New Yorker by Jeannie Suk Gersen, a Harvard Law Professor and the author of the aforementioned piece on Kipnis, approves of DeVos’s move.)

Now I’m as suspicious of DeVos as anyone else is, but we can’t simply reject every new policy simply because it comes from a Trump appointee. As Gersen said of DeVos’s speech on the subject, what the Secretary said would be uncontroversial if it came from an Obama appointee:

In short, DeVos appears to be proceeding exactly as an agency head should: give notice, take comments, and explain why a given policy is being adopted. But the intent to depart from an Obama-era policy, which itself did not go through those steps, will undoubtedly garner outrage and dismay. “We must continue to condemn the scourge of sexual misconduct on our campuses,” she said. “We can do a better job of making sure the handling of complaints is fair and accurate,” she also said. If these statements were made by a different official in a different Administration, they would seem rational, uncontroversial, and even banal. The idea that an adjudicatory process should be fair to both sides is about as basic as any facet of American law can be, even when it is articulated by an individual who is noncommittal on the basic educational rights of L.G.B.T.Q. students and students with disabilities, and who believes that guns belong in schools to protect against grizzly bears. But in these times, especially following the equivocal statements made by President Trump on the violence in Charlottesville, the very concept of “both sides” may approach moral peril (to say nothing of the fact that Trump himself has boasted of sexual assault).

It’s clear that Title IX needs fixing. I’m not sure how to do it, but I think the “preponderance of evidence” standard needs to go. Sexual assault is a serious matter—a heinous criminal act—and should be judged according to higher standards of evidence.

One solution is that all cases reported to colleges be reported to the courts first, who will determine what to do and, if there’s determined to be sufficient evidence for a trial, find the accused innocent or guilty. If guilt is determined, then the college can make its own judgment about how to treat the guilty student. Others object to that because not all victims want to report assaults to the police. But then it doesn’t seem fair that someone can be convicted by a much lower standard of evidence (granted, they’d just get suspended rather than incarcerated)—especially a “>50%” one that comes close to a judgment call.  I haven’t yet formulated a strong opinion on this, but am asking readers to weigh in on one of four choices.

First, you can choose whether or not all sexual assault cases reported to colleges should be immediately given to the police for handling, and only after the courts have resolved the issue should the college step in. (I’d think that a finding of “not guilty” would end the matter, but maybe not.)  Or, if you think that colleges should judge these cases independently of the courts, using their own standards of evidence and procedure, which of the three standards above should the college use?

These are mutually exclusive choices, so please vote for one and please justify your answer in the comments if you have time. You can view the results after you vote.

 

h/t: Grania

 

105 Comments

  1. Posted September 22, 2017 at 10:41 am | Permalink

    To me it couldn’t be simpler. Rape and assault are crimes and should be handled by the criminal courts.

    • Posted September 22, 2017 at 10:44 am | Permalink

      Then vote, please.

      • Posted September 22, 2017 at 10:47 am | Permalink

        Already did. I suppose you can guess which.

        • Posted September 22, 2017 at 10:49 am | Permalink

          Ah, I hadn’t voted myself yet, and you can’t see the results until you vote. I just did.

  2. Posted September 22, 2017 at 10:53 am | Permalink

    One issue not dealt with above is that students accused under Title IX are often subject to restrictions just from being accused, prior to any judgement about the matter.

    We should also ask about the evidential threshold for a college to impose such restrictions. I’d suggest “clear and convincing evidence”.

    • Posted September 22, 2017 at 10:54 am | Permalink

      I believe Yoffe cites one case where a student was restricted even though he was deemed innocent, merely because he looked like someone else who was accused of sexual assault.

    • Posted September 22, 2017 at 11:14 am | Permalink

      It is frequently argued that the rate of false accusations is below 10%. In the absence of any other evidence, the accusation alone would supply a prior probability that exceeds the preponderance of evidence standard. The burden is then on the accused to supply exculpatory evidence.

      • DrBrydon
        Posted September 22, 2017 at 11:32 am | Permalink

        I am not sure I understand your statement. Are you saying that because only one out of ten accusations are false (which strikes me as a worryingly high percentage), there should be a basic presumption of guilt? That would be a truly atrocious practice, and go against our basic standard of the presumption of innocence. That standard exists not only from basic fairness, but because of the difficultly of proving innocence when faced with purely circumstantial evidence. Also, part of the determination of guilt is demonstrating first that a crime was committed. How would someone prove an assault didn’t happen?

        • Posted September 22, 2017 at 11:41 am | Permalink

          I didn’t use the word “should”. I think this is the reasoning that’s being acted upon. Advocates for lower standards of proof lay out all of those dots, but I don’t usually hear them admit that the “evidence” is the accusation itself.

          • Posted September 22, 2017 at 11:52 am | Permalink

            I suspect they don’t admit it because if they did they’d have to acknowledge how bad that reasoning is.

          • DrBrydon
            Posted September 22, 2017 at 12:11 pm | Permalink

            Ah, yes, I agree that there is definitely an assumption of guilt going on in these cases. Thanks for clarifying.

          • BJ
            Posted September 22, 2017 at 3:17 pm | Permalink

            I think the phrases “believe victims” that is regularly used by activists is an admission that the accusation alone is enough for them to assign guilt. In such circles, questioning any accusation has become one of the gravest sins that can be committed.

            • chris moffatt
              Posted September 22, 2017 at 6:36 pm | Permalink

              Ah yes – the accusation is the proof. This is how the “incorruptible” Robespierre sent Danton and many others to the guillotine. Vive la revolution.

            • Lee
              Posted September 23, 2017 at 11:45 am | Permalink

              In Demon Haunted World, Sagan explained how during the witch trials of medieval Europe, if the Church were wrong in their torture and execution of people accused of witchcraft, that would be an enormous crime. so people who accused the Church of being in the wrong were guilty of the even greater mortal sin of heresy. (And executed, of course.) There was simply no rational way to oppose the process which led to the deaths and torture of hundreds of thousands, perhaps millions, of innocent women, men and children.

              The “if you say we’re wrong, you’re also an abuser and probably a rapist” mentality of so many advocates sounds like a faint echo of witch hunts past.

              I love and revere Demon Haunted World. It should be required reading in high school. Each generation needs to do their part to keep the candle of rationality burning brightly.

      • Travis
        Posted September 22, 2017 at 8:35 pm | Permalink

        Just to clarify: The stats cited usually are 2-10% (feminists typically say “only 2%”) but it’s important to know what they mean by these figures.

        These figures refer to cases that were PROVEN false. That is a very high burden as we all know, so the actual number of false accusations is likely much higher… it could be as high as 50% for all I know. It’s interesting to see the motivations of those who make false accusations. The most common reasons include wanting to avoid admitting to cheating and wanting to garner sympathy from someone.

        We have to remember that many false accusations aren’t pursued by police because they are obviously false without much investigation necessary. For universities and those who want to avoid the police altogether just how many more cases of obviously false accusations will paint an alleged assailant as guilty under public opinion? We have many examples from universities over the last few years where a student has been able to claim victimhood over and over in public light, and mattress girl is just one of these examples.

  3. Posted September 22, 2017 at 11:04 am | Permalink

    If you’ve followed the news even cursorily, you know that there were other provisions of the letter (like allowing a form of double jeopardy for the accused) that led to a mess and a bunch of lawsuits by those who were convicted—almost all men.

    And disproportionately Black and other minority ethnic men.

    Supporters of Title IX love to portray this as a conflict between oppressed women and privileged men but, as I predicted several years ago, the victims of lynchings usually turn out to be those less able to defend themselves.

    Ultimately there’s going to be a clash between feminists and anti-racists. Given the way things have panned out with Islam I think feminists might loose out on this one.

    • Posted September 22, 2017 at 11:08 am | Permalink

      “And disproportionately Black and other minority ethnic men.”

      Can you cite this? I’ve heard this elsewhere but haven’t seen the evidence.

      • Alex
        Posted September 22, 2017 at 11:14 am | Permalink

        From what I can find, rapists and their victims are usually of the same race. Interracial rapes are rather uncommon.

        • Taz
          Posted September 22, 2017 at 2:33 pm | Permalink

          What does that have to do with it? The comment was about the percentage of those “falsely accused”. You seem unable to acknowledge they exist.

      • Posted September 22, 2017 at 11:22 am | Permalink

        This is the topic of the third Emily Yoffe article.

      • Posted September 22, 2017 at 11:22 am | Permalink

        I believe it’s the subject of Emily Yoffe’s last article on the subject:

        https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/

      • Posted September 22, 2017 at 11:27 am | Permalink

        Exact figures are hard to find because colleges aren’t obliged to track the statistics but the issue is discussed here:

        https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/

        It seems rather convenient that this is one issue on which those who otherwise obsessively track race inequalities are silent.

        • Posted September 22, 2017 at 11:28 am | Permalink

          Thanks, all!

        • Alex
          Posted September 22, 2017 at 11:39 am | Permalink

          One possibility is that rapes committed by non-whites are more likely to be reported to the police than rapes committed by whites.

        • Posted September 22, 2017 at 12:04 pm | Permalink

          Well, I read it. It does seem there is a problem with bias against black men. But something in me is compelled to point out this quote from the article;

          “Since there are no national statistics on how many young men of any given race are the subject of campus-sexual-assault complaints, we are left with anecdotes about men of color being accused and punished.”

          Ah. Well, aside from the data from Colgate the claim that black men are disproportionally accused is based on incomplete data. But, no worries….”There are many such anecdotes.” *sigh*

          FTR, I think it is probably true that black men are being subjected to unfair treatment in this Title IX issue – it is common enough in other parts of our society – but in the absence of actual data it’s difficult to get handle on what is really going on.

          Consider, black men make up about 7% of the general U.S. population but about 38% of the US prison population. The result of bias? Some of it for sure (most of it, IMO). But this is a statistic that has a lot of data behind it to at least, in principle, apportion blame.

          • Posted September 22, 2017 at 12:15 pm | Permalink

            Why aren’t there statistics on this?

            If I wanted statistics on practically any other matter colleges would have it to hand. How many Black students in STEM? How many on sports scholarships? How many have been subject to racial abuse? How many with disabilities?

            If I wanted that information I could get it easily – so why no stats on this issue?

            • Posted September 22, 2017 at 12:23 pm | Permalink

              I’m sure you can guess!

    • somer
      Posted September 23, 2017 at 5:35 am | Permalink

      I can imagine in red states, wherever the alleged perpetrator is black; the police, courts and jury are less likely to be impartial about the facts. Another complicating factor though I think I’d overall back handling of campus sex offences by the police and judicial system because universities should not be courts and they’ve made such a botch of such cases.

  4. GBJames
    Posted September 22, 2017 at 11:12 am | Permalink

    I’m of the opinion that when priests rape children it is up to the legal system to prosecute. We’ve seen untold times how it goes what happens when church institutions are left to handle things.

    I see no real difference when it comes to colleges. These are alleged crimes. It is up to the legal system to prosecute. Colleges are ill equipped to handle it.

    I voted for option 1.

    • Posted September 22, 2017 at 11:16 am | Permalink

      We are way less organized than churches.

      • GBJames
        Posted September 22, 2017 at 11:20 am | Permalink

        I’m not sure what degree of organization has to do with it. The question is appropriateness. Legal matters belong in the hands of the those who are best able to handle them. I don’t see how one can claim that churches must turn rape allegations over to the authorities but colleges don’t need to.

        • Posted September 22, 2017 at 11:32 am | Permalink

          You said you see no real difference between churches and colleges. I think organization is a big one: we don’t have the capacity to figure out what’s happening in our institution, and we don’t have the capacity (or desire) to shield anyone from prosecution. Churches tend to circle their wagons, universities tend to say “I don’t even know that guy.”

          • GBJames
            Posted September 22, 2017 at 11:38 am | Permalink

            I assumed that “in terms of prosecuting crime” was obvious.

            I think university bureaucracies also circle their wagons. They are motivated to sweep things under the rug just as churches are… defending the institution is their primary interest. But even if we disagree on that, it is irrelevant to my point. Neither should be relied on to prosecute crime. They aren’t the legal system.

            • Posted September 22, 2017 at 11:43 am | Permalink

              I’m not disagreeing with your point, just trying to make a snarky observation. I’ve seen plenty of academics thrown to the wolves for sexual indiscretions or crimes. The more important they are, the faster they are tossed under the bus. As for students and their nefarious activities, honestly we can barely keep track of who they are.

              • GBJames
                Posted September 22, 2017 at 12:12 pm | Permalink

                Perhaps things are different now. What I remember (from the late 60’s until the early 80’s) was quite the opposite. There were faculty who regularly preyed upon students, both male and female, with no consequences at all.

    • Starr
      Posted September 22, 2017 at 11:43 am | Permalink

      I voted “Some Other Procedure”, mainly because while I agree that the police and courts should handle these things, I don’t necessarily think colleges should have to ignore the situation until it has been fully criminally adjudicated.

      For me it really isn’t about whether colleges use “beyond a reasonable doubt”, “clear and convincing” or “preponderance of the evidence” standards, it is about the college taking it upon themselves to make any decision about a criminal matter, independent of the criminal justice system.

      This is my opinion on the matter: If the DA is able get an indictment, the college should be allowed to suspend the student (not expel them) until the case has been adjudicated. If the student is convicted of a crime such as rape, which the college feels is worthy of expulsion, then expel them.

      • somer
        Posted September 22, 2017 at 10:42 pm | Permalink

        That’s exactly how I feel about it – it should be for legal and police authorities to investigate by beyond reasonable doubt by competent authority. There should be standards to ensure the universities or colleges are cooperative and don’t obstruct the victim going to the police. However, the university – whilst not actually carrying out any criminal investigation itself, should suspend the accused until the outcome is found and if they are found guilty by the court (not the uni), the university should expel the guilty party.

        • somer
          Posted September 23, 2017 at 1:22 am | Permalink

          by “suspend the accused” I mean only when police and prosecution have found sufficient evidence for the accused to be indicted.

  5. Randy schenck
    Posted September 22, 2017 at 11:15 am | Permalink

    As I voted, the sexual assault cases should be for the police officials. Who at the schools are even trained in such things as criminal investigation. It is nonsense for school officials to be involved with this matter. Sexual Harassment is a different thing and it should be handled by fully trained people, often within HR or legal departments of the institutions or companies. It should not be handled within the chain of command at the schools or by any untrained individuals. That is a big problem with sexual harassment in the school and some companies today. Take a look at the current case at Rochester today. It is a mess.

    • DrBrydon
      Posted September 22, 2017 at 11:36 am | Permalink

      Agreed. Also, given that, in response to disturbances at some recent protests, college authorities directed police to stand-down, the indpendence of campus police is a serious concern.

      • Randy schenck
        Posted September 22, 2017 at 11:59 am | Permalink

        Also, just look at specialization within the police. In the cities, where most of our colleges are located, the city police department includes regular police who patrol and prevent crime. They take calls and go to the scene to check it out. But then there is investigation units who do the work after the crime. Departments such as homicide, vice and so on. You don’t send a beat cop to investigate a rape or a murder. I sure would not want some college administrator investigating the sexual assault of my kid.

  6. Alex
    Posted September 22, 2017 at 11:16 am | Permalink

    I voted “clear and convicing evidence”. The biggest flaw with “Dear Colleague” is that “likelihood > 50 %” is too low. That needs to be bumped up to 75%. Maybe even 80%.

    • Richard
      Posted September 22, 2017 at 1:39 pm | Permalink

      What puzzles me is how a numeric probability can be assigned to the evidence in these cases (or any other case, for that matter).

      If it comes to the threshold being 75%, and the prosecution says “Well, we think guilt is 76% likely here.” and the defence says “No, it’s only 74%.” how do we decide which is correct?

      Can someone here enlighten me?

      • Posted September 22, 2017 at 1:50 pm | Permalink

        The numbers are meaningless in precise terms but still useful; it is the gestalt of the judicial process that some level of confidence of guilt (but not innocence) can be obtained by a jury or judge. That level is deliberately vague and contingent on mitigating/aggravating details, but the jury (or the judge) naturally assigns a percentage to their confidence and acts accordingly. But it isn’t rocket science, with decimal places and everything.

        • Richard
          Posted September 23, 2017 at 1:52 am | Permalink

          Yes, I suspected as much. That’s why I would use terms such as “fairly certain” or “beyond reasonable doubt” instead.

          —-

          Rocket science isn’t rocket science: you push hot gas out of the rear of something and it travels forward. What’s so hard about that?

  7. Liz
    Posted September 22, 2017 at 11:20 am | Permalink

    The “clear and convincing” evidence standard is not the best if it means that there is “a likelihood of 75% or higher” that an incident actually happened. It’s not entirely clear to me why these don’t go directly to the legal system other than what I’ve read here about anonymity. Colleges should use the “beyond a reasonable doubt” standard whether or not they are also reporting to the police.

    • Liz
      Posted September 22, 2017 at 11:27 am | Permalink

      Just voted. I voted for the “beyond a reasonable doubt” standard through the colleges. This is mainly because I don’t know too much about why that is not already the process. Colleges also need to be able to address these matters in some way even if the legal system handles.

  8. Susan Calvin
    Posted September 22, 2017 at 11:24 am | Permalink

    I voted for option one. I am female and have suffered sexual assault in my youth. However, colleges and universities are not courts. Sexual assault IS a crime and should be treated as such, therefore, the criminal justice system should be involved if the assault is reported.

  9. Cate Plys
    Posted September 22, 2017 at 11:25 am | Permalink

    I voted for going directly to court. For some reason my comment didn’t post–sorry if it now shows up twice. It’s simply wrong to accuse anyone of a crime and not afford them full civil rights in a court of law. I know unhappily that means some real victims will be outraged, will feel they didn’t get justice, and may have to see their assailant on campus. This is one of those many times when there is
    no good answer, only the least bad. To choose anything else would lead to the same Catch-22 we see with people who want to suppress the free speech of people they don’t like–their speech will be next.

    • Travis
      Posted September 22, 2017 at 9:03 pm | Permalink

      I’d argue that the real victims also don’t get justice if it isn’t investigated in a timely manner by the proper authorities, anyway

  10. BJ
    Posted September 22, 2017 at 11:28 am | Permalink

    I voted for option one. I don’t see any other possible route.

    There’s a reason we can’t let colleges continue to adjudicate such things: they’ve already been shown to not only be utterly inept, but also too often driven by ideology and/or incentive to reduce any perception of being seen as not punishing assaulters and rapists. Every time someone is found not guilty, groups all over campus are up in arms. Even worse, Obama’s OCR repeatedly put campuses under investigation for, in essence, not finding enough people guilty, thus threatening the withdrawal of funding. College’s and their administrators have far too many incentives to purposefully adjudicated in ways that punish the innocent. All of this is what led to accused students being refused representation (while the accuser could be represented by anyone and everyone they wanted, and were regularly assigned administrators to help them), access to evidence against them, access to witnesses testifying against them and ability to question said witnesses, and allowance to present evidence in their favor. It is a broken system because there is great incentive for it to be broken.

    • Travis
      Posted September 22, 2017 at 9:28 pm | Permalink

      Well said. I fear most people aren’t aware of these basic facts on the topic (I wasn’t until recently). I wonder if the backlash to this decision will be standard “rape apologists!” or something more substantive?

  11. Posted September 22, 2017 at 11:29 am | Permalink

    I voted for “some other procedure”, but in truth that’s a cop out on my part. As a faculty member and former university administrator (associate dean and dean), I have always been concerned about the lack of appropriate expertise on the part of university officials to adjudicate matters involving potentially criminal behavior. On the other hand, we should not forget two things. First, universities supposedly have collegial standards that go beyond those of society as a whole. Second (and largely overlooked in the debate), parents have expectations regarding the safety of their children, as well as having an often large financial commitment to the institution. So, on the one hand, having criminal justice professionals handle these matters makes sense. On the other hand, the University must play a (difficult) role in the process.

  12. Posted September 22, 2017 at 11:33 am | Permalink

    Crimes should be dealt with by the police not college administrators.

    Any complex society has a specialised division of labour.

    You wouldn’t call the police if you had questions concerning your college fees and you wouldn’t call a judge to fix your dorm’s leaky faucet.

  13. DrBrydon
    Posted September 22, 2017 at 11:38 am | Permalink

    I voted for option one. I think there would still be an issue relating to school discipline, though. If a person were charged with a serious crime, and out on bail, at what point can a school say we need you off campus to protect other students, while at the same time not defaming the accused?

  14. Patrick Polan
    Posted September 22, 2017 at 11:38 am | Permalink

    I chose option 1. Sexual Assault is a criminal offense and the courts should be the deciders.

    My Alma Mater is being sued by an accused for the way in which they handled the process.

    http://www.lansingstatejournal.com/story/news/local/2017/09/19/michigan-state-sued-man-suspended-sexual-misconduct-assault/678723001/

    The system in place now needs to be overhauled and it will be interesting to see how it is being done.

  15. Posted September 22, 2017 at 11:48 am | Permalink

    Is sexual harassment illegal or just against conduct policies?

    If it isn’t, I can see one place where the problem lies: perhaps the “sexual assault” standards should be the usual legal ones and “sexual harassment” standards are “purely” policy and can have a lower burden of proof? The “letter” seems to run the two together in any case.

  16. Posted September 22, 2017 at 12:39 pm | Permalink

    US Constitution, Amendment 5 – Rights of Persons

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Being “convicted” of assault results in a significant “taking” from the accused: An education at a chosen institution, a permanent black mark on their reputation, very likely long term consequences: Certain opportunities permanently closed off.

    I think this belongs in the courts. To prevent false takings from accused and the enforce more serious consequences if convicted in court.

    I have great sympathy for any woman assaulted. But I don’t think lowering the standard of evidence against accused persons is the way to achieve justice.

    (I recommend reading Jon Krakauer’s book, Missoula for an example of how things have been bent in favor of perpetrators. This is very wrong too, of course.)

  17. Denise
    Posted September 22, 2017 at 12:39 pm | Permalink

    Midway through Laura Kipnis’ book, it’s clear to me that the standard of proof is just the beginning of what’s horribly wrong with these procedures.

    Option 1.

  18. darrelle
    Posted September 22, 2017 at 12:43 pm | Permalink

    Option 1. Crimes should not be handled by school administrations. The way things are now seems rather analogous to Sharia courts in England and the RCC handling crimes internally.

    • Neil
      Posted September 22, 2017 at 2:08 pm | Permalink

      ‘Sharia courts in England’
      There are no Sharia courts in England handling criminal cases.
      There are situations where people can choose (*) to go to arbitration over civil matters. This can include religous organisations (Jewish ones have been around ages) and secular, but it is false to imply that Sharia courts are a real thing in the UK.

      * I know ‘choose’ and Islam, especially when it comes to women, is a big red flag. As such I disaprove of such arrangments but they are not Sharia Courts.

      • darrelle
        Posted September 22, 2017 at 3:01 pm | Permalink

        OK, but US University administrations and the RCC are not actual courts either.

      • Michael Waterhouse
        Posted September 24, 2017 at 11:44 am | Permalink

        So there will be an inquiry into all those Jewish not courts too?

  19. Mark R.
    Posted September 22, 2017 at 12:45 pm | Permalink

    Option 1 is the most rational and got my vote.

    Is it just me, or did growing up used to be a lot easier? Not that it’s ever easy, but nowadays, the pitfalls seem endless, and the future bleak. I’m actually at the point that when I see infants and young children, I can’t help but think “what kind of world will they inherit? I never used to think like that 10 years ago. I’m glad I don’t have children; that’s a sad thing to admit.

    • Randy schenck
      Posted September 22, 2017 at 12:54 pm | Permalink

      I believe your thoughts are the same for many of us as we get older. I have been thinking that way for a long time but then I am likely older and it will probably get worse. And it is definitely getting more complicated for kids today and not likely that their parents really understand this.

      • Posted September 22, 2017 at 12:58 pm | Permalink

        “Our sires’ age was worse than our grandsires’. We, their sons, are more worthless than they; so in our turn we shall give the world a progeny yet more corrupt.”

        -Horace, ~20 BCE

        • Randy schenck
          Posted September 22, 2017 at 1:04 pm | Permalink

          That must be it. However, there is once in a while, a slight bit of hope. The latest repeal of ACA is dead. McCain has just said he is not going to vote for it so that does it. Stick the forks in.

          • Posted September 22, 2017 at 1:19 pm | Permalink

            “McCain has just said he is not going to vote for it”

            Thank you for that! Makes my day! 🙂

      • Harrison
        Posted September 22, 2017 at 2:47 pm | Permalink

        The real pitfall for kids today which really does make their young lives far more perilous than my own or my parents’ generation is that the internet and social media will remember anything and everything you do wrong, and sometimes publicize it to the world.

        • Mark R.
          Posted September 22, 2017 at 4:08 pm | Permalink

          I agree. And it’s not only the footprint people are leaving, but also all the information that is coming in – real and fake. It would be difficult being a parent today, trying to steer your child through the land mines many of which (like Randy said above) don’t even know or understand.

  20. Bruce Gorton
    Posted September 22, 2017 at 12:59 pm | Permalink

    I went with ‘clear and convincing’ but the more I think about it, the more I see another point to the top approach – namely it avoids a major weakness in the system as it stands right now.

    If colleges are free to investigate themselves, that also introduces giving them a certain freedom to cover up, just like the Catholic church did.

    Colleges do have a vested interest in keeping allegations quiet, after all they do hurt the college’s reputation and I would imagine that could be reflected in funding.

    I mean I see the need to be quick and responsive on the issue to prevent harm but at the same time I’m not sure it doesn’t serve the interests of the victims better to not have the decision in the hands of the college.

  21. Gregory Kusnick
    Posted September 22, 2017 at 1:00 pm | Permalink

    This part has me confused:

    If guilt is determined, then the college can make its own judgment about how to treat the guilty student.

    A student convicted of “a heinous criminal act” should be sentenced by the court, not sent back to school. I don’t see that the college has any role whatever to play in determining appropriate punishment, but option one seems to assume that it does.

    • Posted September 22, 2017 at 1:06 pm | Permalink

      The school CAN take action after a conviction; depending on the crime, they can make them forfeit scholarships, deny them on-campus housing, suspend or expel them.

      • Gregory Kusnick
        Posted September 22, 2017 at 1:27 pm | Permalink

        In the US, the average sentence for rape is ten years in prison, which would seem to make suspension from school or denial of campus housing moot.

        So perhaps what Jerry’s asking about here is lesser (but still “heinous”) forms of sexual assault that typically do not result in prison sentences. In such cases I’ll go with option one.

        But in no case should sentencing decisions be turned over to the school, which is what he seemed to be suggesting.

  22. eric
    Posted September 22, 2017 at 1:01 pm | Permalink

    Um, stupid question but where/how do I vote?

    On the whole I support the highest standard for any criminal conviction. However I have a friend going through her own criminal issues with sexual assault right now, and I have to say that the court system does not appear particularly blind or fair to women victims. If you initially describe the event using the wrong legal terminology (!!!), you’re screwed. If you get the description wrong in some small detail, you’re screwed. If you don’t call the police right away, you’re screwed. If you didn’t go to the hospital after being hurt, you weren’t hurt. Etc… ‘Beyond a reasonable doubt’ is fine, but it seems to me that in some jurisdictions this has been taken to the unfair extreme of ‘anything short of an idealized, perfect response by the victim = reasonable doubt.’ And it shouldn’t be that way. People having undergone trauma will not act perfectly in response. They will not do all the things they should, when they should, or remember every single detail perfectly.

    So just a caution, by moving from a lower standard back to the higher one, we are getting rid of probably many Type 1 errors at the cost of introducing a few more Type 2 errors than we had before. Is it worth it? Probably yes. The higher standard supports Blackstone’s formulation. But keep in mind that Blackstone’s formulation absolutely sucks for victims in a small society – like a University – where the victim will likely be forced to share classes and social events with their assaulter.

    • Posted September 22, 2017 at 6:24 pm | Permalink

      You simply click one of the circles to vote.

      • eric
        Posted September 22, 2017 at 7:47 pm | Permalink

        Thanks but…what circles?

        • BJ
          Posted September 22, 2017 at 9:57 pm | Permalink

          Do you have noscript or something similar in your extensions? I have noscript installed, so before the poll showed up I had to allow three separate scripts from polldaddy.com-related links.

    • Michael Waterhouse
      Posted September 24, 2017 at 12:04 pm | Permalink

      “On the whole I support the highest standard for any criminal conviction. However…”

      You have one anecdote of someone having a hard time prosecuting their presumably valid case.
      Which is not to say it isn’t being prosecuted.
      And such strictures may not apply to all jurisdictions.

      There are also many anecdotes detailing the life crushing consequences of someone dealing with false or flimsy accusations.

      Given the severity of punishment that usually accompanies a finding of guilt in sexual assault cases it is definitely worth maintaining a higher standard.

      Are you hinting that it might be worthwhile to sacrifice the occasional innocent to get more guilty ones?
      Your ‘however’ indicates you might be.

  23. Posted September 22, 2017 at 1:34 pm | Permalink

    What I never understood about supporters of using Title IX in this area is why? They are constantly discouraging women from going to law enforcement instead pushing reporting to the Title IX department instead.

    Even worse than the lower standard is the stripping of other due processes safeguards from the process. You have OCR pushing for a single investigator model meaning a single person does the investigation then decides guilt then makes the recommendation of punishment. You have the accused not given access to lawyers or allowed cross examination. There are even cases where they are not told the charges against them until the trial. It so broken the only option (at least for public universities) is to throw the whole thing out and start a new including elminiating all the Title IX adminstrators that have been added in the last 5 years.

  24. Pablo
    Posted September 22, 2017 at 1:39 pm | Permalink

    In 20 years the college rape hysteria(1 in 5!)will look like the Satanic panic of the 1980’s.

    • biz
      Posted September 23, 2017 at 1:51 pm | Permalink

      If I recall correctly, the “1 in 5” stat is based in whole or in part on one survey of mostly non-residential students at a commuter school somewhere. It was of a population that is definitely not representative of what peplle think of when they think of college in America, and asked whether they were victims at any point in their lives, including before or outside of college in order to get to 1 in 5. I am willing to be shown otherwise though.

  25. Curt Nelson
    Posted September 22, 2017 at 1:49 pm | Permalink

    I voted for option 1. I’ve never understood why colleges and universities act like little countries and see fit to handle such things themselves.

  26. harrync
    Posted September 22, 2017 at 1:51 pm | Permalink

    Minor clarification about a statement in the posting: the civil court jury did find O. J. Simpson liable by “clear and convincing” evidence, not just by “preponderance of the evidence”. http://www.cnn.com/US/9702/04/jury.questions/ But I don’t think the standard of guilt is really the important thing; more important is the lack of due process – not getting a clear statement of the charges, no right to counsel, not being able to confront your accuser or the witnesses, etc.

    • eric
      Posted September 22, 2017 at 2:21 pm | Permalink

      The OJ trial also points to a way for at least a partial solution to the problem of prosecuting sexual assault (i.e. there is rarely definitive evidence sufficient to convict): if you can’t put him in jail, you can still sue the bastard. Neither of which requires the University to get involved.

  27. Harrison
    Posted September 22, 2017 at 2:37 pm | Permalink

    While it’s possible that SOME colleges may continue as before, any administration with half a brain is breathing a great sigh of relief. The former OCR rules put colleges between a rock and a hard place, forcing them into behavior which inevitably led to lawsuits or else risking federal defunding. The policy essentially said that one way or another, your college is taking a financial hit. Pick your poison.

    As I despaired of in the recent Evergreen lawsuit, however (yes, it’s a very different situation, but hear me out), these suits almost always ended in settlement. Which was a real tragedy as a single strong Constitutional challenge carried to the Supreme Court could have done away with this idiotic nonsense. But understandably students who’ve been through the false accusation ordeal for years at a time are just desperate to move on.

  28. Jeremy Tarone
    Posted September 22, 2017 at 3:20 pm | Permalink

    A lot of people are stating that rape should be the domain of the police and belongs in the courts and I agree, but universities have obligations to keep students, staff and faculty safe.

    If one student is going around physically assaulting other students the university is obligated to deal with the student for the safety of others on campus. Even if they call the police and a criminal investigation is started the school needs to investigate and it may result in suspension or expulsion.
    Even without the results of a criminal prosecution. This is of course necessary since criminal prosecutions can take months or years and a student who is a danger to others can not be allowed to remain on campus. This is true of elementary schools up through universities. Investigations are done, indeed must be done. The question is, will the investigation be fair?

    In some cases it’s an easy investigation, witnesses say one student struck another. In others it’s one person’s word against another. Regardless of the difficulty, if a school becomes aware of such an incident they must at least investigate else they could be liable for any future problems with that student.

    Universities have code of conduct rules, investigations already take place that can lead to expulsion. While some incidents are murky because of a lack of witnesses and/or evidence, they still (may) need to be investigated if for nothing else to cover the facility in case things escalate.

    That is the essential problem schools face. They may not have the skills or processes they still need to investigate yet they must investigate.
    No matter what they do they will be subject to lawsuits pressure from interest groups, either from being over cautious, not cautious enough or even handed. Regardless, investigations must be fair to all involved parties. An accusation shouldn’t be enough to get someone suspended or expelled.

    These institutions are in a no win situation as we see from the complaints about DeVos. In the past I’ve read more than a few articles that stated re-arranging schedules so an accuser never has to be in the same class as an accused isn’t good enough. Many want the accused to be removed from school just on the basis of the accusation alone.

    Should universities have to deal with problems that have nothing to do with the institution (aside from it involving students) if it occurs off school property and outside of any school approved events?
    I don’t think so.

  29. Posted September 22, 2017 at 3:28 pm | Permalink

    As a former prosecutor and criminal court judge, I voted for the administrative (within college) criminal standard of BARD. Certainly much more stringent measurement should be employed than the POE or even CAC. I would be reluctant to vault the accusations to the criminal courts in light of the potential cataclysmic effects upon both the accuser and the accused. Some reasonable balance should pertain in the uncommon atmosphere of the college campus mixed with the motivations and circumstances of college relationships. Leave the Draconian stuff to Andrea Dworkin.

  30. Ullrich Fischer
    Posted September 22, 2017 at 7:15 pm | Permalink

    1 and 3 are not mutually exclusive. I voted for 3 Clear and Convincing Evidence but if a prosecutor thinks that a criminal rape charge is warranted, that should take priority. The rule of law is pretty damn important, IMHO, and should never be bypassed. If there is clear and convincing (civil suit standard) evidence, then the college can expel the accused with a clear conscience, but if there is a likelihood of a criminal conviction, that option should be explored first.

    • Craw
      Posted September 22, 2017 at 8:12 pm | Permalink

      The rule of law should never be by-passed but you voted to by-pass it.

      • Ullrich Fischer
        Posted September 23, 2017 at 12:59 am | Permalink

        No. Failure to prosecute criminally means “not guilty”. Not necesaarily probably innocent, it is the distinction between civil vs criminal liability which is at iasue. Expelling a student on the basis of “convincing evidence” even though it doesn’t rise to the level of “beyond a reasonable doubt” still honors the rule of law, but is just a tad more nuanced than letting a rapist off scott free because the victim is unable to meet the criminal conviction bar. Requiring “convincing evidence” seems like a reasonable compromise between making it virtually impossible to get any kind of justice for a real rape and making it absurdly easy for an innocent accused to be stuck with a rape accusation on his record. I kind of agree with an earlier comment about how some school administrators are too quick to assume all rape accusations have merit, but the solution is to have a jury of students decide the matter based on civil suit rules not just a University administrator based on his own desire to avoid being accused of going soft on rapists. (so to speak 🙂 )

  31. Amanda
    Posted September 22, 2017 at 9:31 pm | Permalink

    Regret is not rape. So I would prefer Option 1.

  32. Diane G.
    Posted September 23, 2017 at 12:02 am | Permalink

    sub

  33. Raymond Cox
    Posted September 23, 2017 at 6:02 am | Permalink

    It should be a fundamental principle that it is better that the guilty go free than that the innocent are punished. These accusations should be dealt with by professionals in the criminal law courts and not by amateurs in colleges.

  34. Posted September 24, 2017 at 11:51 am | Permalink

    Sorry but option 1 is the only sane option. Why would anybody choose anything else?

    Only with option 1 are the rights of the accused protected by the constitution.

    If there has been an allegation of sexual assault, this is a serious crime. If you don’t report it to the police, you need to go to prison. If you do report it to the police, why try to second guess the judgement of the real court?

  35. John R. Vokey
    Posted September 24, 2017 at 4:03 pm | Permalink

    Option 1 is the only fair option, but only if the caveat “; then adjudicate only after the legal process is completed.” is removed. These criminal allegations are NOT a university or college matter. And, unless the university has legislation that prevents any one with a criminal conviction from attending the university (not just current students), the university has no basis for acting on the outcome of the criminal case, either.

  36. David Jorling
    Posted September 24, 2017 at 10:39 pm | Permalink

    Colleges tend to cover things up. The longer the delay the harder to determine if charges should be brought. A rape victim should immediately be referred so that physical evidence can be obtained. This alone can make a case for the prosecution or exonerate the alleged assailant quickly in many cases. Aside from making the referral to police the college should stay out of it. There are sticky issues to be addressed while the case is pending which need to be addressed by thoughtful and consider policies.

    • truthleaker
      Posted September 26, 2017 at 6:56 pm | Permalink

      Colleges tend to cover things up? Sex crimes are the least cared about crimes imo. Not to plug my blog post, but I think this case proves it: JAC EDIT: THIS WEBSITE IS WRITTEN ANONYMOUSLY, SO AS PER THE RULES I DON’T ALLOW SOMEONE TO PLUG THEIR POSTS UNLESS THEIR REAL NAME IS ASSOCIATED WITH THE POST. I’VE ELIMINATED THE POST.

      • Diane G.
        Posted September 27, 2017 at 4:08 am | Permalink

        truthleaker, you know if you add your blog url when you sign in to post a question, your nym will become a hotlink to it, right? That way others can find it and maybe not go directly to the post you intend but still be able to find it…

        • Posted November 16, 2017 at 1:51 pm | Permalink

          Thank you for letting me know Diane. I was unaware. How do I go about doing that? Thanks in advance.


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