New improved standards proposed for adjudicating sexual misconduct in college; ACLU opposes them for “inappropriately favoring the accused”

In my view, the only good thing that the Trump administration has done is to revise the standards American colleges should use to judge sexual misconduct of students. These changes are, I think, fairer to both accused and accuser than were the previous standards proposed by the Obama administration under its Title IX “Dear colleague” letter, which denied reasonable rights to those accused of misconduct.  In view of many court challenges to college punishments resulting from the Obama standards, and their palpable unfairness, the changes proposed by Betsy DeVos seem, on balance, good. (Note: this is NOT an endorsement of Betsy DeVos!) I’ve written previously about the mess that Obama’s Title IX guidelines have created in colleges.

The changes proposed by DeVos, which will become final after a two-month period of comment, were reported a week ago in the New York Times.  Here’s how they change the picture.

1.) Schools would now be required to hold live hearings and not closed-door adjudications.

2.) The “single-investigator model,” in which one person adjudicates all the evidence and passes judgment, would go out the window. All collected evidence would now have to be presented to a (presumably) objective third party or parties.

3.) Both accusers and accused will be allowed to cross-examine each other through an advisor or a lawyer. However, those who accuse someone of sexual assault or misconduct cannot be directly questioned by the defendant, which seems fair and protective of people’s psyches. They can, however, be questioned by a third party like a lawyer or adviser. This was something that was missing in the Obama regulation, but was recently mandated by a federal court ruling in Michigan.

4.) A “rape shield” protection will remain in place, so that a complainant’s sexual history will remain strictly off limits.

5.) Hearing, like court cases, will be conducted with the presumption of innocence of the accused.

6.) Instead of relying on the “preponderance of evidence” standard mandated by the Obama “suggestions,” schools can use either that standard or the “clear and convincing evidence” standard, which is stricter but still not as strict as the “beyond a reasonable doubt” standard used in courts.

You may recall that the standards, as I explained last year, are these:

  • 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 harassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

7.) The legal responsibility of colleges and universities would change: previously schools would be legally responsible for investigating complaints if they had “actual knowledge” that an assault had happened. Now they have legal responsibility only if a victim files a formal complaint. (If the victim doesn’t, schools are still encouraged to provide “supportive measures.”)

8.) Exculpatory evidence cannot be withheld from the accused. It could previously, which was one of the most unfair parts of the Obama-era guidelines. Further, those accused will be able to review all the evidence against them, which wasn’t previously mandated.

9.) Finally, colleges and universities can investigate conduct only if it occurs in the school’s own premises, programs, or activities, or in a location over which the college or university exercises oversight.

These all seem reasonable to me: they strengthen protections for the accused, which have been notoriously lacking, yet still don’t take them to the level of a legal proceeding in court. Note that when I took a poll of readers about which standard of evidence should be used in adjudicating accusations of sexual misconduct in college, I got this result. Readers wanted the accusations to be first adjudicated in court before the colleges took action, presumably if the person was convicted. (I am not sure I agree with that completely, as some sanctions, like keeping accused and accuser apart, can be imposed only by universities, and should be done before the case goes to court.)

To my surprise, the American Civil Liberties Union (ACLU) has come out strongly against these revisions. I’m surprised because the DeVos standards seem to afford reasonable protections to the accused, something that the ACLU has long fought for in criminal litigation. Now, however, the ACLU sees these changes as “inappropriately favoring the accused”. But not even as much “favoring” as the accused gets in court, so what’s the issue? The issue is that the ACLU is now going against its long-standing policies because social justice demands that the balance be tipped toward the accuser, usually female, in college sexual-assault cases. How else can you understand supporting a policy that doesn’t allow cross-examination of accusers or even the presentation of exculpatory evidence to the accused?

The ACLU first announced its opposition to the policy in some tweets:

And then put up a post by Emma Roth and Shayna Medley on the ACLU’s website: “Betsy DeVos Wants to Roll Back Civil Rights Protections For Students Filing Complaints of Sexual Harassment or Assault“.

First Amendment lawyer Marc Randazza assesses the situation with snark but accuracy:

In the new Atlantic, editor Conor Friedersdorf summarizes his and other’s take on the ACLU opposition to the new rules (click on screenshot below):

Here’s an excerpt from Friedersdorf’s article, and I agree with it:

. . . the ACLU does not merely argue that “a preponderance of the evidence” standard is superior to a “clear and convincing evidence” standard in campus proceedings in which a state school is punishing a student. In the ACLU’s telling, the more onerous standard is so wrongheaded that rules meant to protect against discrimination on the basis of sex ought to forbid even private colleges that take federal money to adopt such a standard. It even asserts that “there is no reason” for the more onerous standard, as if its adherents aren’t motivated by the same concern that presumably causes the ACLU to favor a still more onerous burden of proof in criminal cases: a desireto prevent the wrongful punishment of innocents.

When someone stands accused of sexual assault in criminal court, does the ACLU believe in the “beyond a reasonable doubt” standard merely because that is what the Constitution requires, or because it is better to leave some guilty people unpunished than to punish many innocents? “The old-school ACLU knew there was no contradiction between defending due process and ‘supporting survivors,’” David French writes. “Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a ‘survivor’ of a profound injustice.”
Says the criminal defense attorney Scott Greenfield:

The ACLU cannot love constitutional rights only when it serves to further a cause on behalf of their favored marginalized group, then hate it when it doesn’t, and still be given credit as a voice for civil liberties … Remember, due process “inappropriately favors the accused.”

Those four words are the ACLU’s epitaph.

Once again we see long-standing and reasonable standards thrown out the window (the Southern Poverty Law Center did the same thing) when a supposedly marginalized group is at issue—in this case women. But women have been accused of sexual misconduct, too, and although most of the accused are men, we’re dealing not with a sex-specific issue but an issue of misconduct that is usually criminal.The ACLU took my case when I was illegally drafted as a conscientious objector, and won handily in court. I have worked for the ACLU and supported them much of my adult life. But right now I’m ashamed of them for kicking their own standards to the curb when it becomes ideologically inconvenient to hold onto them.

 

94 Comments

  1. GBJames
    Posted November 21, 2018 at 12:15 pm | Permalink

    sub

  2. Michael Fisher
    Posted November 21, 2018 at 12:22 pm | Permalink

    The Atlantic today, Conor Friedersdorf in conversation [an email correspondence?] last month with Scott Greenfield: One Criminal-Defense Attorney’s Lament who argues that innocents are being sacrificed in the name of utopian causes.

    Extract, but I recommend a full reading:

    Greenfield: Let’s start with a big one, due process. Advocates for accusers in Title IX campus sex adjudications have vilified due process as allowing rapists to “get away with it.” This has been amplified as a result of the “Dear Colleague” letter by the Obama administration’s Department of Education Office of Civil Rights bureaucrats and Trump administration Education Secretary Betsy DeVos’s rescission of that letter. It is further complicated by the #MeToo movement.

    The laundry list of basic procedural due process rights—notice, opportunity to defend, cross-examination—have been ripped to shreds as unfair, traumatic weapons to victimize accusers. Of course, these are the same processes that are desperately at risk in non-sex-related criminal cases, where a similar cohort demands they be provided and honored. Why are they good for some accusers and horrible for others?

    If cross-examination is an evil because it might “re-traumatize” the victim, is that not the same when the victim is in court for a robbery? If we’re to “believe the victim,” to functionally undermine the presumption of innocence and shift the onus onto the accused to prove they’re not guilty, how do we explain not believing the victim in any other criminal proceeding? And before anyone replies, “but we do,” no, criminal defense lawyers don’t. No accusation is above challenge.

    Either the concept of due process is an inherent virtue in our system or it isn’t. It doesn’t morph from wonderful to horrible based upon the nature of the accusation, or which side is preferred at any moment. As the concept is vilified, procedural fairness is increasingly seen as some technical trick to favor the accused rather than giving the accused a fair opportunity to defend himself. And lest there be any doubt, not only is it an inherent virtue in all proceedings, but without it we’re left with an inquisition. Then again, when it comes to proceedings like Title IX sex policing, that’s pretty much what’s desired by the accusers, even though it’s in fundamental conflict with core premises of our jurisprudence.

    BTW The convo goes on to cover campus disciplinary hearings

  3. Mark R.
    Posted November 21, 2018 at 12:25 pm | Permalink

    7.) The legal responsibility of colleges and universities would change: previously schools would be legally responsible for investigating complaints if they had “actual knowledge” that an assault had happened. Now they have legal responsibility only if a victim files a formal complaint. (If the victim doesn’t, schools are still encouraged to provide “supportive measures.”)

    I would like to know what this “formal complaint” consists of, how it’s filed and who it’s filed with, and then what happens? . This is pretty vague; I guess the universities should be happy since they don’t have to deal with any complaint unless it’s “formal”. I dunno…just sounds fishy for some reason.

    Most of the points I don’t have a problem with…though I’m not good at judging legal issues like these.

    • Rita
      Posted November 21, 2018 at 1:35 pm | Permalink

      I had the same thoughts regarding the formal complaint requirement.

    • Adam M.
      Posted November 21, 2018 at 1:37 pm | Permalink

      The complaint has to be made to an official who has the power and responsibility to act on it, as opposed to someone who doesn’t. Thus, if a student only tells someone like a dormitory supervisor, the school isn’t liable for not investigating.

      Also, under the new rules, schools are no longer required to investigate and prosecute against the wishes of the complainant whereas before if they school came to know of an accusation they were required to investigate.

      • DrBrydon
        Posted November 21, 2018 at 2:21 pm | Permalink

        This is in response to some schools being investigated or criticized because faculty who had heard about problematic interactions (from say a student crying on their shoulder) were not automatically bring this to the administration as a disciplinary matter.

  4. Posted November 21, 2018 at 12:25 pm | Permalink

    I really don’t understand why colleges have their own system for dealing with crimes. Why is a college student who commits assault dealt with differently than a person of the same age who just happens not to attend college? In short, why isn’t aren’t the police and criminal justice system 100% responsible for the process?

    I can see a role for colleges in making it easier to report crime, patrolling campus, and supplying legal and psychiatric counsel but, otherwise, things of this nature should be left to the normal authorities. As I see it, this is all part of the coddling of college students. They need to be exposed to the real world just like non-students.

    What am I missing here?

    • Davide Spinello
      Posted November 21, 2018 at 12:34 pm | Permalink

      If politics would work as it should this correction would be a bi-partisan process, in which the party that implemented the first version would recognize the (empirically supported) need for some adjustment, and would work together with the party currently in power to implement the best possible version. Unfortunately impossible in this polarized mess.

    • Derek Freyberg
      Posted November 21, 2018 at 1:01 pm | Permalink

      I’ll offer a try at this, but another lawyer with more experience in this field should take it on.
      There are two different issues:
      (1) sexual assault and the like, and (2) sexual harassment.
      (1) is a criminal act. In my opinion, if a student reports a sexual assault to a college, the college’s responsibility should be to (a) pass that information on to the police, unless the student says “no, I don’t want the police involved”; and (b) stand back and let the proper authorities do their job. And, if a person subject to the college’s jurisdiction is convicted, then the college may take action to sever that person’s connection with the college.
      (2) is generally not criminal but is civilly actionable. In this case, the responsibility of a college, like that of an employer, is to ensure an environment free of harassment. And here, if a complaint is made, the college may, indeed should, investigate, and take action to stop the harassment if it is found to have occurred. Here, a lesser standard of proof than required for a criminal conviction will suffice, but there must be proper protections for both accuser and accused – the “trial” must be fair.
      There are of course complications. For example, what is a college to do if a student claims sexual assault but declines to report it as a crime, yet wants to avoid the assailant who is a fellow student? Or, the crime is reported but the assailant is not prosecuted? Or, the assailant is prosecuted but not convicted? – remember, the standard of proof for criminal conviction is “beyond a reasonable doubt”: OJ Simpson was found not guilty of murder, yet found civilly liable for the death. And so on.

      • Posted November 21, 2018 at 1:05 pm | Permalink

        Thanks for the explanation but why are the Feds involved in this? Perhaps Title IX goes into areas it shouldn’t?

        • Randall Schenck
          Posted November 21, 2018 at 1:39 pm | Permalink

          I believe both you and Derek above are getting to the heart of the matter. Sexual Harassment should not be lumped in with assault or rape, with these two being legal criminal matters. Therefore having them handled by the untrained staff at schools is just wrong. So that should leave the school’s responsible for sexual harassment in the real world, just as it is in most businesses. And again, why should the school environment require a new and different way of handling sexual harassment than other institutions? Only because they are mixing in the assaults and rape crimes with sexual harassment. A private company would never make this mistake.

          Once we have corrected this error, we can follow the sexual harassment process that many companies use and solve this matter properly. This is not rocket science and common, proven methods can be very effective.

          • Ken Kukec
            Posted November 21, 2018 at 2:16 pm | Permalink

            Hey, buddy, haven’t seen you around these parts for a bit. Good to see you back in the saddle. Hope all is well.

            • Randall Schenck
              Posted November 21, 2018 at 3:50 pm | Permalink

              All is good. Can’t keep the mouth shut forever.

              • Ken Kukec
                Posted November 21, 2018 at 6:23 pm | Permalink

                Good to have you around. Never know when I’ll need a wing-man to hold my beer so I can take a poke at the one of rightwingers who show up around here sometimes (you know, figuratively speaking). 🙂

          • Posted November 21, 2018 at 3:04 pm | Permalink

            I agree with what you say regarding private companies. Although a CEO is motivated to keep some activities inside the company, it wants nothing to do with actual rape or assault. That said, assault can be pretty broad. I had one employee throw their iphone at another employee. They missed and no one was interested in taking the matter further but I can see how it becomes a slippery slope.

            • Randall Schenck
              Posted November 21, 2018 at 3:28 pm | Permalink

              Yes, I think you would need guidance from Ken or Derek on that, but it looks like attempted assault. Your standards at your business might be the place for that one, regarding violence at the workplace and all that. I believe sexual harassment at a college institution should probably be in the HR department and or legal. Depending on the workload the well trained investigators would work there. All sexual assault allegations would be reported to this section. In the larger companies such as where I once worked it was also possible for any employee to report sexual harassment to any supervisor or manager. That is simply a convenience thing for the employee because the supervisor or manager has but two hours to report the matter to HR/legal. This makes the reporting process very simple and confidential.

        • Derek Freyberg
          Posted November 21, 2018 at 6:29 pm | Permalink

          Here’s the magic wording: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
          For more I refer you to the Wikipedia article: https://en.wikipedia.org/wiki/Title_IX.

    • Rita
      Posted November 21, 2018 at 1:39 pm | Permalink

      Do you also think that employers who have rules of conduct for their employees and have processes for reporting behavior toward other employees, are “coddling their employees”?

      • Posted November 21, 2018 at 3:00 pm | Permalink

        They are if they keeping something criminal “inside the company”. As a former CEO myself (now retired), I completely understand the motivation to act as counselor, judge, and jury. No company wants bad publicity. Colleges are subject to similar motivations which is why they under-report campus problems.

    • DrBrydon
      Posted November 21, 2018 at 2:24 pm | Permalink

      Part of the challenge is, what should a college do if a person is accused of a crime of sexual violence, pending a determination of the matter? Can that person be banned from campus? The school needs a mechanism for making that decision that protects the community as well as the accused. It’s not just a matter of the courts. This is why I am still scratching my head here.

      • Posted November 21, 2018 at 3:16 pm | Permalink

        Our courts have a mechanism for this, right? The accused is not released on bail if they are deemed a danger to society by a judge.

        Just so it’s clear, I’m only questioning the need for parallel or overlapping justice systems. There are plenty of other criminal justice issues that should be addressed. Better to not have to address them in more than one system.

        • DrBrydon
          Posted November 21, 2018 at 4:36 pm | Permalink

          Right, but assuming that the person is free (say on bail) how is the school to handle it. I think that’s where there is an issue, since the school may need to do something pending an outcome of the criminal case.

          • Posted November 21, 2018 at 4:48 pm | Permalink

            Make them wear a letterman’s jacket of a different kind. Ok, just kidding.

            So why do the accused waiting for trial need to be handled differently in college?

            • Posted November 21, 2018 at 6:31 pm | Permalink

              Suppose the alleged victim of rape has some classes with the alleged perpetrator.Or if they just see each other on campus. That contact should be avoided. Unless you suspend both parties until the matter is resolved they will see each other
              How would you have handled that in your company if two employees in close proximity had been involved.

  5. Jon Gallant
    Posted November 21, 2018 at 12:48 pm | Permalink

    The ACLU’s position is still another example of Trump Derangement Syndrome. If Betsy Devos (or any other Trump official) observed that polar bears live in the Arctic, this assertion would be indignantly denounced by the ACLU, the SPLC, and the Huffington Post, while the New Yorker would run an Olympian critique of the observation’s pros and cons.

  6. BJ
    Posted November 21, 2018 at 12:50 pm | Permalink

    One tweet from the ACLU that was left out of this post is that which said they will “continue to support survivors,” implying that any time one of these cases arises, the accuser is automatically a “survivor” (i.e. telling the truth) and the accused is a sexual assaulter/rapist.

    It really is horrifying that the ACLU supports a process where the accused doesn’t even get access to the evidence against them, nor a right to representation, nor a right to question their accuser, nor a right to present certain types of exculpatory evidence, etc.

    “Inappropriately favoring the accused.” What an ominous, Orwellian phrase, especially from the ACLU. This organization truly has gone off the rails now.

    • GBJames
      Posted November 21, 2018 at 1:37 pm | Permalink

      I don’t see how you can equate “continue to support survivors” with “the accuser is automatically a “survivor””. A person is a survivor if they have survived an attack. Being a survivor is not something that requires a guilty conviction.

      • mikeyc
        Posted November 21, 2018 at 1:55 pm | Permalink

        Right but I think BJ means that until one establishes than an attack actually occurred, they can’t properly be called survivors.

        • GBJames
          Posted November 21, 2018 at 2:03 pm | Permalink

          Why not? If I’m hit over the head in an alley with a stick, I’m a survivor of an attack. Even if I don’t report it to anyone.

          • BJ
            Posted November 21, 2018 at 4:34 pm | Permalink

            Their tweet was at the very end of everything else they said about this process. In my estimation, the implication was that, by changing the process to afford the accused better protections, the changes were against the interests of the accusers — AKA “survivors.” If you treat the process as survivor vs. perpetrator, rather than accuser vs. accused, you’ve already started with the process being unjust.

          • Thanny
            Posted November 21, 2018 at 5:41 pm | Permalink

            If you lie about being attacked, you are not a survivor.

            That’s ignoring the fact that using the term “survivor” for a victim of a crime that is not fatal is stupid.

            • GBJames
              Posted November 22, 2018 at 10:13 am | Permalink

              Non sequitur.

      • rickflick
        Posted November 21, 2018 at 2:08 pm | Permalink

        Being a survivor is something that requires an attack. It’s still drawing a conclusion from a accusation.

        • GBJames
          Posted November 21, 2018 at 2:16 pm | Permalink

          No. Attacks don’t require accusations. They are a great many sexual assaults (and other kinds of assault) that are not followed by accusations. These are still attacks and the survivors of the attacks are survivors.

          • Posted November 21, 2018 at 5:48 pm | Permalink

            But there are also accusations that have not been preceded by any attack.

            • GBJames
              Posted November 22, 2018 at 10:12 am | Permalink

              This is quite irrelevant to the point I’m trying to make.

              • BJ
                Posted November 22, 2018 at 12:47 pm | Permalink

                It’s very relevant. If you go read the full context of what the ACLU wrote in the series of tweets, the clear implication is that the accusers are “survivors.” The ACLU said that the new guidelines “inappropriately favoring the accused,” and thus must be resisted in the name of “continu[ing] to support survivors.” If giving the accused the tools to defend themselves is removing support from “survivors,” the implication is that the accusers are always “survivors.”

                That’s where this whole conversation started.

              • GBJames
                Posted November 22, 2018 at 12:58 pm | Permalink

                I don’t know how else to say this, but This is quite irrelevant to the point I’m trying to make.

              • BJ
                Posted November 22, 2018 at 1:55 pm | Permalink

                Ah, I think maybe you’re trying to make a new point in this part of the thread. You’re saying it’s not relevant to the original point you made in response to me…? I think I get it now.

        • GBJames
          Posted November 21, 2018 at 2:17 pm | Permalink

          * I’m assuming “accusation”, here, means “legal accusation”.

    • Posted November 21, 2018 at 1:59 pm | Permalink

      The ACLU had already gone full SJW when it declared it would only defend certain ‘marginalized’ identities, not each and every citizen.

      Never go full SJW.

      • tomh
        Posted November 21, 2018 at 4:48 pm | Permalink

        Ah, the fearsome “SJW.” The great boogeyman of our time.

        • Posted November 21, 2018 at 5:47 pm | Permalink

          Then, I suppose that it were Bigfeet that turned Evergreen State University into what it is today.

        • BJ
          Posted November 21, 2018 at 6:42 pm | Permalink

          You can make this kind of completely-devoid-of-substance statement about literally anything. “Ah, the fearsome ‘NeoCons.’ The great boogeyman of our time.” “Ah, the fearsome ‘AntiFa.’ Great boogeyman of our time.” “Ah, the fearsome ‘Koch brothers.’ Great boogeyman of our time.” It’s not an argument; it’s just a dismissal without argument or substance.

          Though I do appreciate you using two o’s for “boogeyman.” I don’t know when it became “bogeyman,” but I started hearing people use that version maybe ten years ago and have no idea where it came from. Was I the one hearing a less popular regional variation the whole time? Same thing with the pronunciation of “bona fides,” which I had always heard pronounced “BOH-nuh-fyeds.” All of a sudden, I started hearing people (especially on the news) pronounce it as “BOH-nuh-FEE-dees” and “BOH-nuh-FYE-dees.”

          • phil brown
            Posted November 21, 2018 at 8:43 pm | Permalink

            Fungus the Bogeyman, published 1977.

            https://en.wikipedia.org/wiki/Fungus_the_Bogeyman

            • tomh
              Posted November 21, 2018 at 9:09 pm | Permalink

              The difference that you don’t seem to realize is that the Koch brothers, neocons – they’re real things. Unlike boogeymen and SJWs.

              • BJ
                Posted November 22, 2018 at 8:44 am | Permalink

                Oh! I didn’t realize all these groups doing all these things don’t actually exist! Fascinating. They must all be false flag operations and paid actors. That really is remarkable! Wow, Jerry has been writing a lot of posts about people and groups that don’t exist, and none of us even knew it. Why didn’t you tell us sooner?

          • Michael Fisher
            Posted November 21, 2018 at 9:17 pm | Permalink

            “Boogieman” or “boogyman” is USA [you have a film by that name I think] – “bogeyman” is the rest of the world AFAIK, but certainly it’s the single “o” in the British Isles. Any mythical man designed to terrify kids into going to sleep [how does that work? But it works] is a bogeyman – hence the sandman, baba jaga, baba yaga etc etc. Every culture seems to have hit on the same strategy for dealing with their kiddos at night.

            • Posted November 22, 2018 at 6:19 am | Permalink

              Agreed. Furthermore, where I come from a bogey is something you pick out of your nose, and a boogie is a form of dancing.

            • BJ
              Posted November 22, 2018 at 8:46 am | Permalink

              Very interesting! I guess I really was hearing a regional version all this time. Thanks for the info.

              Know anything about the pronunciation of “bona fides”?

              • Michael Fisher
                Posted November 22, 2018 at 9:16 am | Permalink

                In Britland:
                “fides” is one syllable rhyming with “rides”
                “Fides”, the Roman goddess of trust, is two syllables “Fy-deez”

              • BJ
                Posted November 22, 2018 at 10:23 am | Permalink

                Yes, that’s how I always heard it hear in the US until maybe ten years ago, when I started hearing the other two versions.

        • Posted November 22, 2018 at 1:24 pm | Permalink

          I am glad to have been exposed to this point of view and appreciate the time you took to express it.

  7. Posted November 21, 2018 at 12:55 pm | Permalink

    It seems that the ACLU’s need to virtue signal support for accusers (“survivors” as they would say) takes precedence over the principles they once had.

    As I see it the new rules don’t go far enough. I don’t think sexual assault accusations should be settled on a 51:49 basis (if one is expelled from college it will be a big blemish on a CV; is that ok given a coin-toss verdict?).

    Further, if the accuser’s history is off limits, is that of the accused also off limits? (So no consideration of any other allegations?)

  8. Posted November 21, 2018 at 1:07 pm | Permalink

    Words make a difference and it has been a mistake, in my view, to couch this debate so heavily in terms of “due process.” It sounds so technical and institutional and, anyway, nobody knows quite what it means.

    What the ACLU is objecting to is “protections for the innocent.” The innocent, they believe, will get too much protection under the new rules.

    Sexual assault is abominable, but reducing protections for the innocent is a distraction, not the solution.

    • GBJames
      Posted November 21, 2018 at 1:40 pm | Permalink

      I think you mean “protections for the accused”, not “protections for the innocent”.

      Important distinction.

      • Posted November 21, 2018 at 1:49 pm | Permalink

        I think JAH does mean “protection for the innocent”.

        Some fraction of the accused will be innocent, and *they* are the ones who need the protections of due process.

        • GBJames
          Posted November 21, 2018 at 1:55 pm | Permalink

          That presupposes the verdict. Legal protections apply to everyone.

          • Posted November 21, 2018 at 1:58 pm | Permalink

            Some fraction of the accused are innocent. Those innocents need the protection of due process.

            But we don’t know which of the accused are innocent, so due process must be given to all accused.

            • GBJames
              Posted November 21, 2018 at 2:04 pm | Permalink

              I think you just agreed with me.

              • Posted November 21, 2018 at 2:06 pm | Permalink

                Yes, I agreed with you, but also explained why we can say that “innocents need protection”.

              • GBJames
                Posted November 21, 2018 at 2:14 pm | Permalink

                We can say it logically, because one is the subset of the other. But “innocence” has nothing to do with the reason that due process is important. Uncertainty demands that it apply equally to all. Emphasizing the subset implies that others don’t deserve due process. It is an attitude that is prevalent among many hard line law-n-order types and tends to lead to reductions in protections for everyone.

            • Ken Kukec
              Posted November 21, 2018 at 2:40 pm | Permalink

              Everyone’s entitled to due process, even those who’ve confessed or been caught on video. One of the reasons we afford due process to all is because it’s the best way we’ve found to differentiate the innocent from the guilty. Another is because it’s the right way to conduct a justice system in civilized societies (among which I was pretty sure the US numbered itself, at least until our president bent over for the Saudis yesterday on the brutal assassination of Jamal Khashoggi).

              • Posted November 21, 2018 at 3:41 pm | Permalink

                I meant “protections for the innocent.” There’s never been any great appetite in the law to protect the guilty from receiving their legally prescribed “just deserts.” The reason the law (supposedly) protects every accused is that it’s the only practical way to provide protection to all the innocent.

              • GBJames
                Posted November 21, 2018 at 3:44 pm | Permalink

                We aren’t talking about protecting the guilty from their “just desserts”, we’re talking about protecting everyone from being mistreated by the lack of due process.

              • Ken Kukec
                Posted November 21, 2018 at 4:16 pm | Permalink

                @JAH43:

                Even the guilty, even after formal adjudication, are entitled to due process; that’s what sentencing proceedings are all about. The process that’s due is different, but it’s due nonetheless — notice, hearing, opportunity to be heard (both by direct allocution with the court and through counsel), the right to present mitigating evidence, etc. How else to determine that the “deserts” visited upon the offender are “just”?

                “Due process” hardly ends with conviction. Even prisoners have certain basic due process rights.

              • Posted November 21, 2018 at 6:38 pm | Permalink

                I think it is better to talk about alleged victims and alleged perpetrators instead of guilty and innocent. But I am about two hours late to the discussion.

  9. Ken Kukec
    Posted November 21, 2018 at 1:34 pm | Permalink

    As I read the linked piece on the ACLU site, there are just three specific objections to the new guidelines actually argued: 1) an objection to the stricter definition of “harassment”; 2) an objection to the requirement that a “formal complaint” (rather than a mere report to some school official) be made; and 3) an objection to schools’ having the option to raise the burden of proof at the hearing to “clear and convincing” evidence.

    If the ACLU also objects to the other safeguards enumerated in the new guidelines — including the right to have the evidence heard by a neutral, objective third-party; the right to have exculpatory evidence disclosed to the accused; and the right of both sides to cross-examine the opposing party — the ACLU certainly hasn’t made any case for denying those rights.

    And I don’t believe any such case could be made, for those rights are the foundational elements in our traditional concept of “due process.”

    • BJ
      Posted November 21, 2018 at 4:41 pm | Permalink

      If those are really the only three objections they have, then their claim that the new guidelines “inappropriately favor the accused” doesn’t make sense. This strikes me as an attempt at damage control. None of these three objections have anything to do with the due process protections in the new guidelines, except, arguably, for number three.

      • Ken Kukec
        Posted November 21, 2018 at 5:24 pm | Permalink

        Seems to me the ACLU is objecting to the whole thing, but those three are the only objections spelled out on its website. The objections specified I understand, although I don’t agree with them. If the ACLU objects to the other provisions, as it appears is the case, I’m at a loss to understand any legal basis to support those objections.

        That’s the only point I was endeavoring to make.

        • BJ
          Posted November 21, 2018 at 5:37 pm | Permalink

          Gotcha.

          What do you think has precipitated this recent hard shift in the ACLU? From abandoning their previous strong stance on speech to this, it seems like the ACLU is becoming just another left-wing political activism group. Until recent events, I always considered the ACLU apolitical, in the sense that protecting civil liberties for all is, to me, politically neutral (meaning I know people on both the Left and Right sides of the divide who support such a mission), and it didn’t discriminate against groups based on any factor, including ideology. The ACLU appears to be abandoning the principle of “civil liberties for all,” in exchange for “civil liberties only for certain groups, and also we’re now going to support some other explicitly political issues and make politically charged statements.”

          Has there been a big change in leadership? Has the rank and file become so overtly social justice-oriented that they’ve changed the culture of the organization? Is it something else?

          • Ken Kukec
            Posted November 21, 2018 at 6:17 pm | Permalink

            I’ve been “a card-carrying member” of the ACLU since before Poppy Bush used that as a slur against Michael Dukakis in the ’88 presidential race (and, if I hadn’t’ve been, I’d’ve joined on the spot then), and I’ve done a little pro bono work with the local affiliate, but I’ve never been an ACLU activist, so can’t really say what’s going on with the organization as a whole. It’s always been associated with “the Left” (as per Poppy Bush’s slur), but my guess is there’s new blood coming out of the social-justice battles on campus starting to assert itself at the national level.

            I hope they outgrow this and get back to the organization’s original mission, which is consistent with the brand of leftism I’ve associated with, going back to the last century.

            • BJ
              Posted November 21, 2018 at 6:34 pm | Permalink

              Yes, until about two years ago, i had been making yearly donations to the ACLU for a long time. I agree it’s always been associated with the Left, but it always tried to be an organization that defended civil liberties, defended them for everyone, and largely stayed out of other political fights and kept from making politically charged statements. It’s clearly no longer the same organization.

              Oh well. Circumstances always remind me of this:

            • BJ
              Posted November 21, 2018 at 6:52 pm | Permalink

              Seems someone else already beat me to the Tropic Thunder reference above.

              • Ken Kukec
                Posted November 21, 2018 at 7:26 pm | Permalink

                One can never get too much Tugg Speedman and Kirk Lazarus. Hell, even Les Grossman made me laugh my ass off. 🙂

              • BJ
                Posted November 21, 2018 at 8:19 pm | Permalink

                I continue to maintain that Tom Cruise is the last great movie star. I don’t care about the man’s personal life. He’s a fucking legend and has performed in more iconic roles than any other actor I can conjure in my admittedly puny brain.

                People say things like, “he plays the same role/character every time,” “he’s not that great an actor,” etc. Maybe he doesn’t have the greatest range and maybe he’s not the best actor, but of the few different types of roles he does, he does them remarkably well, and he has this charisma that makes him memorable in most roles.

              • Posted November 22, 2018 at 10:32 am | Permalink

                I agree. He also is to be commended for doing his own stunts.

              • Ken Kukec
                Posted November 21, 2018 at 8:52 pm | Permalink

                I liked Cruise a lot in a couple of his early films, All the Right Moves and Risky Business. Since then, I think he’s done his best work when he’s essentially playing to type, which is to say “over the top,” or at least in clearly defined character roles — Color of Money, Rain Man, Born on the Fourth of July, A Few Good Men, Magnolia, Vanilla Sky, Collateral, American Made, that kinda stuff. Even Jerry McGuire, and Eyes Wide Shut, while not my favorite Stanley, has grown on me over the years, including TC’s performance.

                It’s in standard-brand leading-man roles and Hollywood blockbusters where I find him kind of flat and boring — but then, those types of movies have never held much meaning for me, so it’s not necessarily all his fault.

              • Michael Fisher
                Posted November 21, 2018 at 9:02 pm | Permalink

                Cruise isn’t Philip Seymour Hoffman
                He isn’t Heath Ledger
                He isn’t Daniel-Day Lewis
                Cruise isn’t

              • BJ
                Posted November 21, 2018 at 8:57 pm | Permalink

                Agreed on all counts. Though I would say there’s one series of standard-brand Hollywood blockbusters where I still like him (and the movies generally, since I usually hate such movies): The Mission Impossible series. I got tired of it after the third or fourth one, but they’re the height of blockbuster filmmaking. And Cruise is mighty impressive in them. It really does make a difference when you can see the actor doing crazy stunts in medium and close-up shots.

              • BJ
                Posted November 22, 2018 at 8:48 am | Permalink

                Of course not, Michael. I made it very explicit that I wasn’t saying he’s the best actor. I said he’s the last movie star.

                PSH is my favorite actor of all time. Cruise doesn’t hold a candle to any of the people you mentioned, nor many others. But he’s the last great example of a breed that seems is dead and will never return: the true movie star who can often put butts in seats with just his name.

              • Ken Kukec
                Posted November 22, 2018 at 1:58 pm | Permalink

                Yeah, PSH was my favorite living actor, back when he was still living. The range on that guy! Someone who constantly surprises me with his range now — who, over the years, has gotten scary good — is Christian Bale.

              • BJ
                Posted November 22, 2018 at 4:03 pm | Permalink

                Hoffman was, almost quite literally, unbelievable in his range. He could do anytjing. The villain in MI3. His role in Charlie Wilson’s War was both hilarious and slightly sad. Even in lesser known films like Love Liza , he easy just amazing. And Doubt ! I can go on and on. What a loss…. the only actor I was legitimately distressed for weeks about losing. I’m still sad when I think about it now.

              • Ken Kukec
                Posted November 22, 2018 at 6:36 pm | Permalink

                Don’t forget the faggy film assistant in Boogie Nights, or the preppy pricks in The Talented Mr. Ripley and Scent of a Woman, or fuckin’ Capote, or one of his last roles, in God’s Pocket.

                His is the greatest loss of acting talent before its time of my lifetime, bar none.

              • BJ
                Posted November 22, 2018 at 8:06 pm | Permalink

                I haven’t forgotten a single one. I could have pointed to nearly any role he had. He was even brilliant in lesser-known fare like Owning Mahowney.

                I agree: the greatest loss of talent in all of acting.

  10. Posted November 21, 2018 at 4:22 pm | Permalink

    My oldest grandchild is eleven. I just hope there is a sensible procedure in place by the time he enters college. Not sure that is enough time considering the mess it is in now.
    Several boys were expelled from Georgia Tech in the last two years with no process, just some vague accusation and no police report.

    • Randall Schenck
      Posted November 21, 2018 at 7:03 pm | Permalink

      That is a sad system. If it was sexual assault the school should be able to turn it over to the authorities. If it is sexual harassment a proper system would nearly always get the correct result/findings. We must understand that sexual harassment accusations do not just have two outcomes. Even if found to exist it does not mean automatic termination at all. Often it can mean something much less. Workplace sexual harassment, if found to be a first time offense can mean much less than a termination. If it is found to be much more and verified that others are or were harassed then termination is likely. It is not a one strike and you are out like a sexual assault or rape.

  11. Thanny
    Posted November 21, 2018 at 5:43 pm | Permalink

    The ACLU has obviously been invaded and taken over by SJW’s, which is truly tragic.

  12. openidname
    Posted November 21, 2018 at 7:08 pm | Permalink

    “Some sanctions, like keeping accused and accuser apart, can be imposed only by universities . . .”

    Not true. The accuser can get a restraining order.

  13. Blue
    Posted November 21, 2018 at 7:21 pm | Permalink

    There is, of course, a WAY that no one needs
    to even worry about their children or their grandchildren … … ever … … becoming
    ( even possibly or remotely ) falsely accused.

    It is known. By All. And has been, the WAY, for just ever.

    Blue

    • BJ
      Posted November 21, 2018 at 8:27 pm | Permalink

      Exterminating all human life?

    • Blue
      Posted December 3, 2018 at 11:25 am | Permalink

      O no, no, no. Not at all in re extermination. Such little understanding
      in re worrying about ones’ kiddos.

      ON the contrary ! Parents and grandparents
      need not worry cuz they know that they … …
      raised up kiddos to rape and to murder and
      to commit violent crime to the number that
      the kiddos wanna: zero. Zero be that amount
      wanted.

      These parents and grandmas and grandpas
      raised up kiddos thusly:
      https://twitter.com/_SJPeace_/status/1069292443777073152 so no. That be The Way … …
      to NO worries !

      Crikey.

      Blue

  14. Diane G
    Posted November 22, 2018 at 7:21 pm | Permalink

    sub

  15. Posted November 23, 2018 at 11:47 am | Permalink

    I’m trying to give the ACLU the benefit of the doubt here, given their reputation, etc. But …


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