Category: Uncategorized

The ACLU Moves to Embrace Due Process on Title IX

Post author By saveadmin
Post date February 11, 2019

After Secretary of Education Betsy DeVos proposed a new rule on the obligations of colleges under Title IX, focusing on the due-process rights owed to students accused of sexual misconduct, members of the public submitted more than 96,000 comments. The ACLU’s contribution is of particular interest.By way of background, Title IX is a law that states, “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.” Under President Barack Obama, the Department of Education published a letter setting forth a new interpretation of what colleges had to do to meet their obligations under the statute. Any failure to comply would risk their ability to receive federal funding.

“Universities reacted with panicked over-compliance,” argues the Harvard Law professor Jeannie Suk Gersen. “In renewing their attention to the rights of alleged victims of sexual assault, many began to disregard the rights of accused students … It has become commonplace to deny accused students access to the complaint, evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses.”

Emily Yoffe reported on related injustices for The Atlantic. Later, when DeVos was drafting a new rule to supersede the Obama-era approach, Yoffe commented that the Donald Trump administration’s proposed guidelines “aren’t without their flaws—but they move the policy in a more just direction.”At the time, the ACLU seemed to disagree, vehemently.

The civil-liberties organization published a tweet complaining that DeVos’s proposal would “tip the scales” against accusers. “The proposed rule would make schools less safe for survivors of sexual assault and harassment,” it said. “It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence. We will continue to support survivors.”

At the time I published a critique, “The ACLU Declines to Defend Civil Rights,” that asked, “Since when does the ACLU believe a process that favors the accused is inappropriate or unfair?” Many other civil libertarians objected, too.

So I was pleasantly surprised last week to read the more formal, official comment that the ACLU submitted to the Department of Education. As the Brooklyn College professor K. C. Johnson observed, the ACLU’s lengthier, more considered statement is strikingly different from its earlier social-media reaction. It encompasses significant criticisms of the new rule, many of which warrant attention.

But on matters of due process, it aligns more closely with the Trump approach than the Obama approach, bolstering rather than weakening vital procedural protections.

“The ACLU supports many of the increased procedural protections required by the Proposed Rule for Title IX grievance proceedings, including the right to a live hearing and an opportunity for cross-examination in the university setting, the opportunity to stay Title IX proceedings in the face of an imminent or ongoing criminal investigation or trial, the right of access to evidence from the investigation, and the right to written decisions carefully addressing the evidence,” it states.

Read: The uncomfortable truth about campus rape policy

It urges a requirement that universities “provide counsel for both parties for the hearing if either party requests counsel.” And it questions the ascendant notion that protections for accused students and justice for victims are at odds:

Conventional wisdom all too often pits the interests in due process and equal rights against each other, as though all steps to remedy campus sexual violence will lead to deprivations of fair process for the respondent, and robust fair process protections will necessarily disadvantage or deter complainants. There are, however, important ways in which the goals of due process and equality are shared. Both principles seek to ensure that no student—complainant or respondent—is unjustifiably deprived of access to an education. Moreover, both parties (as well as the schools themselves) benefit from disciplinary procedures that are fair, prompt, equitable, and reliable.

At the same time, the ACLU still objects to the way that the proposed rule grants colleges the discretion to decide whether the burden of proof in sexual-misconduct disciplinary hearings should follow the “preponderance of the evidence” standard, requiring a 50.1 percent chance that the charges are accurate, or a “clear and convincing evidence” standard, a higher burden of proof.

I previously argued against the lower burden of proof.The ACLU’s latest articulation of its position states, “By authorizing recipients to impose a clear and convincing evidence standard instead of a preponderance standard, the Proposed Rule frustrates the purpose of Title IX. Under that standard, even where it is more likely than not that the respondent sexually harassed or assaulted a complainant, the school would have no obligation to provide a remedy.” Notice the way in which “to provide a remedy” and topunish the accused student get conflated in that formulation of the matter.

“The preponderance standard is the appropriate standard of proof to apply for complaints involving peer-on-peer harassment or disputes, including Title IX grievance proceedings, for two reasons,” the ACLU continues. “First, it ‘is the burden of proof in most civil trials’ and requires the factfinder to determine that the complaint is more likely true than false … Second, the preponderance standard makes sense because it treats the complainant and the respondent equitably. That is why it is used in civil litigation, where there is no ex ante reason to favor one side over the other.” Notice that technically, even the preponderance standard favors the accused, insofar as they prevail in cases where the evidence for and against guilt are exactly 50 percent in both directions. (Elsewhere, the presumption of innocence itself is now being attacked.)

Caitlin Flanagan: Mutually nonconsensual sex

The ACLU goes on to argue that a “clear and convincing” standard “tips the scales against the complainant,” adding that “in Title IX grievance or disciplinary proceedings, both the complainant and the respondent have a significant interest in access to education. Serious disciplinary sanctions will undoubtedly affect a respondent’s access to education. And, as the Department acknowledges, a school’s failure to address sexual harassment or assault will affect the complainant’s access to education.” Thus, it concludes, “A preponderance standard provides the most equitable approach for resolving the complainant’s and respondent’s equal interests in access to education.”

I still think the ACLU has this wrong. That intuition flows in part from my understanding of 50.1 percent. Imagine that a roulette table appears in your garage. You’re obligated to cover the bet of the first passerby. Yikes! For numbers one through 36, half are red and half are black. And then there’s zero, which is green.

A neighbor walks in, puts $1,000 on black, and demands that you spin the wheel. The odds are slightly in your favor. You’d be correct to conclude that you’re more likely than not to win. Now think of your confidence level that you will win as that wheel is spinning, but before the ball settles into its ultimate slot.

Based on that same degree of confidence, would you be willing to expel a student from college while permanently branding that person a rapist? I’d need something more than 50.1 percent confidence to impose that consequence on someone.What’s more, many of the most serious campus disciplinary hearings strike me as very unlike most civil trials in important respects. At public institutions, agents of the state are bringing charges against a student and perhaps imposing discipline, compared with one party suing another to try to recover damages. As Scott Greenfield, a criminal-defense attorney, writes on his blog Simple Justice, “this is no ‘grievance procedure’ but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes.”

The ACLU’s argument also posits a false symmetry. While the educational access of both accusers and respondents are indeed implicated in Title IX hearings, there are relevant differences, too. A wrongly accused student who is expelled utterly loses access to an education, whereas a victim doesn’t necessarily lose access to an education if a respondent is wrongly acquitted, in part because punishing a given perpetrator is not the only tool at a college’s disposal for safeguarding the educational access of victims.

Read: The bad science behind campus response to sexual assault

Finally, an acquittal under a “preponderance of the evidence” standard may be harder on some accusers than an acquittal under a “clear and convincing evidence” standard, because only the former will strike many as implying an unreliable accuser. The latter better enables adjudicators to find someone not responsible without seeming to say that the accuser is more than likely a liar. That difference could conceivably spare some innocents a wrongful conviction, too, because some adjudicators are averse to implying that any accuser did something wrong or deceitful by coming forward with a claim of sexual misconduct.

These are the thorniest of questions, and neither approach to determining the burden of proof will yield the optimal outcome in all cases. People of goodwill who are genuinely concerned with the rights of accusers and respondents are on both sides of this debate.

And that strikes me as a final argument against the ACLU’s position. That is to say, because this is a tough question about which reasonable people can and do disagree, it makes sense to give different educational institutions leeway to adopt different burdens of proof. Perhaps the relevant tradeoffs vary with local circumstances in a way that makes different standards right for different institutions. Or perhaps a diversity of approaches is the best way to evaluate which burden is best and ought to be adopted universally at some point in the future.

Regardless, I suspect that the legislators who passed Title IX would agree that in doing so, they had no intention of prohibiting a “clear and convincing evidence” standard in campus disciplinary matters involving sexual misconduct. The thorny tradeoffs, with implications for access to education on both sides, are such that private institutions should be free to do what’s best as they see it rather than being coerced by the changing whims of a politicized central authority.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

CONOR FRIEDERSDORF is a California-based staff writer at The Atlantic,where he focuses on politics and national affairs. He is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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Will Presumption of Innocence Be The Next To Fall?

Post author By saveadmin
Post date February 11, 2019

Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.

Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972, and weaken protections against sexual harassment and violence for students. The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.

That the new rules would be a “significant departure” was pretty much the point. The irony of “longstanding” meaning starting in 2011 when they were invented out of whole cloth by a bureaucrat eludes Shapiro. That inclusion of some basic due process “leaves campuses less safe,” however, isn’t merely the repetition of the vapid slogan of sad advocates, but a threat by attorneys general.

The “coalition” submitted a lengthy comment of 71 pages, which suggests they have a bit of extra time on their hands having managed to fix all their state issues so that they can now focus on federal rules. But the thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. They are arguing against the value of due process, fundamental fairness for the accused male student. But slipped in there is an argument rarely seen, and never by an attorney general. There should be no presumption of innocence.

B. The Presumption of Non-Responsibility Improperly Tilts the Process in
Favor of the Respondent.

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. §§ 106.45(b)(1)(iv) & (b)(2)(i)(B). The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation. Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation. The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard (which we contend is not appropriate). The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment.

Accordingly, there should be no presumption regarding the respondent’s responsibility.

In the scheme of sophistry, this is pretty big. The presumption of innocence, or “non-responsbility” as it’s euphemistically called here, is little more than the flip-side of the burden of proof. If the burden isn’t met, then who wins? But there is an additional prong, that the “winner” isn’t ascribed the title of “rapist” who beat the rap, even though that’s pretty much the way it goes anyway.

The presumption has long been reduced to a legalism in the mind of the public, that the cops wouldn’t arrest someone if he wasn’t guilty. That prosecutors wouldn’t prosecute someone who wasn’t guilty. To many, the burden is on the perp to prove his innocence, or he’s guilty but got lucky. The concept of it being a bit problematic to prove a negative isn’t one that people tend to spend much time thinking about. Why bother when everybody knows the guy is guilty?

But the argument proffered by the attorneys general is shockingly weak:

The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.

This is a non-sequitur. The argument, which no one makes but certainly should, that the criminal law presumption should apply, as this is no “grievance procedure” but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes, compels the presumption to apply. That it’s not, at least as argued by the AGs, a criminal case has no rational bearing on whether the presumption should apply.

The question, at best, would then turn to whether the purposes for the presumption apply to these proceedings as they do to criminal cases. They can’t be bothered to make a cogent argument, but then the sad advocates to whom their comment is really addressed won’t complain about their failure of logic.

But the fact that this comes from attorneys general, whose responsibility bears some relation to constitutional rights as well as the jurisprudence upon which they exist, raises a secondary, more nefarious problem. They are arguing throughout their letter, often disingenuously such as when they ignore the caselaw requiring hearings and some means of confrontation when facts are in dispute, against the basic premises of due process.

The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” Even worse, they are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. The ploy, that someone can be accused of rape but “considered neutrally” is absurd, and they, as lawyers, certainly know this.

Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric. Having already reduced due process to the enemy of women with astounding success, is the presumption of innocence now in their crosshairs? It’s not just the impact on the woke psyche on campus, but as legal concepts are undermined in the mind of the public, it filters through the system. Won’t that be convenient for the AGs?

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Proposed Missouri legislative reform emphasizes due process for accused in Title IX cases

Post author By saveadmin
Post date February 4, 2019

GRAHAM PIRO – STAFF REPORTER •FEBRUARY 4, 2019

Lawmakers express optimism bill will succeedA set of bills in the Missouri Legislature proposes significant reforms to the state’s Title IX procedures by allowing accusers and accused students to take their cases in front of the state’s Administrative Hearing Commission.They also ban guilt-presuming language and empower the attorney general to fine schools found to have violated due process rights. Particularly important for accused students, the legislation would also make the publication of false and malicious statements that someone is guilty of fornication, adultery, sexual assault, or rape legally punishable.Lawmakers are expressing optimism that it can be enacted into law this year.Under HB-573, college students would be able to request a hearing in front of the state’s AHC in any Title IX-related case in the University of Missouri System. It would also exert more pressure on institutions of higher education to protect due process rights through potential fines and legal action from the state’s attorney general.“It’s a time to put the protection back in place,” Rep. Dean Dohrman, the House bill’s sponsor, told The College Fix in a phone interview. “The core of the bill is to make sure that our fundamental rights are in place, that due process is followed.”Sen. Gary Romine, the sponsor of the Senate companion bill (SB-259), told The Fix the bill’s purpose was “putting responsibility on the school to make sure the students know their rights.”Both Romine and Dohrman expressed optimism that the legislation would be passed at some point this year, given that Missouri has a Republican “trifecta” – control of the governor’s seat and majorities in both legislative chambers. “I think it has good prospects,” Dohrman said.

The bills are marked as “emergency acts” that will take effect immediately due to being deemed “necessary for the immediate preservation of the public health, welfare, peace, and safety.”

The AHC “acts as a neutral and independent hearing officer for the state to avoid situations where a state agency acts as investigator, prosecutor, and decision maker,” according to the state of Missouri’s website. The legislation would effectively make Title IX proceedings more like legal cases where witnesses would be allowed to testify and evidence presented in trial-like hearings.

It could also potentially take the pressure off colleges to process Title IX complaints by having complainants and respondents take their cases directly to the commission.

The bills makes significant adjustments to current Title IX procedures, which do not currently allow the commission to hear such proceedings.

They also allow students to request a hearing in front of the commission as an appeal of any Title IX case if students received disciplinary action by the institution in the outcome of the case. Students would also be able to request expedited hearings if the outcome of their case was suspension or expulsion.

In order to exert more pressure on schools to follow due process, the bills empower the attorney general to investigate any alleged or suspected violations of the grievance procedure, and would fine schools that are found to have violated the due process rights of students $250,000.

Any breach of due process between an institution and a student would be considered an unlawful act by the attorney general, who would be able to collect data about Title IX cases from institutions.

The bills would also clarify the terminology used in Title IX cases. They require that colleges ensure “all parties use the terms ‘complainant’ and ‘respondent’ and refrain from using the term ‘survivor’ or any other term that presumes guilt before an actual finding of guilt.”

Donell Young, assistant vice chancellor for Student Engagement and Success at the University of Missouri, told The Columbia Daily Tribune that the bills could silence students who come forward about their experiences.

“It could silence some students, one that was already afraid to go through the legal process anyway, but it can also stop them from going through a university process because they don’t want the double taxation of going through the process,” she said.

“If due process is followed, the truth will come out,” Dohrman told The Fix. He stressed that the focus of his bill is to ensure that due process is followed through the proceedings, and that the “core of the bill is to make sure that our fundamental rights are in place.”

“Everyone takes sexual harassment and sexual assault seriously,” he continued. “We want to make sure it’s a good process that everyone can believe in.”

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Rep. Sheila Jackson Lee ousted as chair of Congressional Black Caucus Foundation after lawsuit

Post author By saveadmin
Post date January 23, 2019

Rep. Sheila Jackson Lee has been pushed out as chair of the Congressional Black Caucus Foundation after she was accused in a lawsuit last week of retaliating against an employee who complained of being raped.

She also lost her post as the top Democrat on a Judiciary Committee’s crime, terrorism and homeland security subcommittee, which she had been in line to chair in the new Congress.

Despite being the third-ranking Democrat on the Judiciary Committee, she does not have any subcommittee chairmanships, according to the list Democrats announced Wednesday afternoon.

Judiciary Chairman Jerrold Nadler said Ms. Jackson Lee made a decision to “voluntarily and temporarily step back” from the subcommittee chairmanship so as not to derail the panel’s work.

“This decision does not suggest any culpability by Representative Jackson Lee,” Mr. Nadler, New York Democrat, said. He said Rep. Karen Bass would serve as chairwoman “until the matter is resolved and Representative Jackson Lee can resume the role of chair.”

The New York Times reported that key activist groups had said in the wake of the rape-retaliation allegation that they could not work with the Texas congresswoman on reauthorizing the Violence Against Women Act, which is a major piece of work looming for the panel.

Several outlets reported Ms. Jackson Lee’s decision, under pressure, to step down from the CBCF, which is the nonprofit arm of the Congressional Black Caucus, the symbolically powerful group of black lawmakers on Capitol Hill.

The moves came a week after a woman, identified only as “Jane Doe” in her lawsuit, said she was raped by a CBCFemployee in 2015, when she was a 19-year-old intern and her attacker was the 30-year-old coordinator of the CBCF’s intern program.

Her lawsuit contained lurid details and suggested a police investigation ensued, including taking the alleged attacker’s DNA, though it does not appear a prosecution took place.

Ms. Jackson Lee was not chair of the CBCF at the time the woman says the rape occurred but became chair in 2017.

The Jane Doe plaintiff was also hired in Ms. Jackson Lee’s office in late 2017, and at some point last year, told the congresswoman’s chief of staff that she planned to pursue legal action against the CBCF for the trauma she suffered.

The woman says she was soon fired from Ms. Jackson Lee’s office, and says the budget and work performance explanations given don’t jibe with the facts. She says she believes the firing was retaliation.

Ms. Jackson Lee’s office last week denied the wrongful termination and said it was not involved in the events the Jane Doe plaintiff described from 2015.

Her office did not respond to a request for comment Wednesday on her ouster from her leadership posts.

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Public Comment Period Extended for Title IX Rule

Post author By saveadmin
Post date January 18, 2019

January 18, 2019

The Department of Education said Thursday it would extend the public comment period for a proposed Title IX sexual misconduct rule. Technical issues have made the website that accepts public comments on federal rules unavailable since Wednesday.

Politico first reported the issues on the site, regulations.gov, which a banner message blamed on the ongoing government shutdown before federal officials said a technical glitch was to blame.

“The department will extend the public comment period to ensure that the public will have had 60 days in total to submit comments on this proposed rule using the Federal eRulemaking Portal,” said Liz Hill, a spokeswoman for the Education Department.

Comments on the new campus sexual misconduct rule were due by Jan. 28. The new closing date will be determined when the website is back online.

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New Title IX Rules Would Empower Both The Accused And The Survivors

Post author By saveadmin
Post date January 16, 2019

The U.S. Dept. of Education has proposed new guidelines for colleges to address sexual misconduct and sexual harassment, known as Title IX.

MICHAEL COGHLAN / CREATIVE COMMONS / FLICKR.COM/PHOTOS/MIKECOGH

While I’m not a fan of most of Betsy DeVos’s reforms, when it comes to Title IX, I’m in full support.

The proposed rules do help the accused by restoring their fundamental right to cross-examine their accuser. For students facing expulsion and being branded as sexual predators, this is no small thing.

But victims would also be empowered. They’d be able to opt to participate in a facilitated conversation in which the harm is identified and responsibility taken.

“I just wanted him to hear me,” explained one woman who participated in such a conference.

“I realized that saying sorry wasn’t enough,” said one repentant man.

The old guidelines prohibit this option.

And there’s another benefit for victims. Right now, the very people who might provide much-needed counsel are deputized as mandatory reporters. Should faculty overhear anything suspicious at the salad bar or in a personal essay on dorm life or wherever, we’re required to report it immediately to the Title IX office.

If the student says she doesn’t want to report, we are to override her resistance.

Any ambivalence on her part, we’re told at annual trainings, is a symptom of trauma. Under no circumstances are we to talk with a student about the incident, as we might re-traumatize her.

The proposed rules give colleges the chance to retire the undercover army of sex police. Teachers can once again assume the essential role of mentor, exploring options rather than betraying a student’s confidence.

For victims, these changes are enormous. Instead of being treated as if they’re too traumatized to act on their own behalf, they’re given the opportunity to think and make decisions for themselves.

Our nation’s undergraduates need us to believe in their capacity to grow and change. Our society needs adults who’ve been given the support to learn from their mistakes, and to tell others clearly when boundaries have been crossed.

And we all need more opportunities for honest conversations about the pitfalls of passion.

The DeVos guidelines help us to get there.

Meg Mott has studied Title IX, and teaches politics at Marlboro College in Marlboro, Vermont.

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Title IX consultants mock cross-examination in campus trials: ‘More evidence will not overcome bias’

Post author By saveadmin
Post date January 15, 2019

Does DeVos see ‘every hearing as a Perry Mason episode’?

Multiple appeals courts at both the state and federal level have explained the importance and necessity of cross-examination in campus sexual-misconduct proceedings.

They often invoke a quote by the famed American jurist Henry Wigmore, cited in a 1972 Supreme Court ruling, that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

A high-profile Title IX consulting firm doesn’t agree, at least when cross-examination is used in its field.

In its latest “tip of the week,” the National Center for Higher Education Risk Management mocks Education Secretary “Betsy DeVos and her supporters” for supposedly arguing that cross-examination is “the panacea” for the problems in Title IX proceedings.

The Department of Education’s proposed Title IX regulation, which is open to public comment for another two weeks, would require these proceedings to allow cross-examination and exclude the testimony of any party or witness that refuses to undergo cross-examination.

The core problem in these proceedings “is actually rooted in bias and lack of training,” NCHERM’s unsigned six-page letter reads:

[The Education Department] believes – incorrectly – that producing more and better evidence in hearings will overcome the biased and deficient analysis that is plaguing those proceedings. Phooey. The solution isn’t about evidence. More evidence will not overcome bias, because bias inherently causes decision-makers to ignore and overlook evidence. Believing otherwise is wishful thinking. Producing more and better evidence (the purported goal and purpose of cross-examination) simply provides those who are biased more to ignore and overlook.

The Title IX field is riddled with “implicit bias” and those who make decisions in proceedings often possess “deficient analytical skills,” which requires “more and better training,” the group argued. When bias and deficient analysis intersect, “that multiplies the problem into confirmation bias,
which is much more difficult to unravel.”

In a paragraph that shows the group’s underlying disdain for advocates of due process, NCHERM alludes to the “greatest legal engine” quote:

Perhaps [DeVos and her supporters] see every hearing as a Perry Mason episode, replete with an opportunity to break the witness and make them confess the truth? This kind of superstition results from watching too many TV courtroom dramas and not enough real time in actual courtrooms or educational administrative hearings.

The conceit of humans believing they are lie detectors undergirds the belief that crossexamination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.

MORE: Title IX bureaucrat group charges $1,499 to teach you due process

The “tip” goes on to suggest talking points for readers when they submit comments on the notice of proposed rulemaking, including the “high risk of traumatizing the parties” through “adversarial” elements.

It asks what will happen when parents can actively represent their children in proceedings, rather than sit silently as hearing panelists and campus prosecutors grill the parties:

I have seen Mom in this process. Many times. Mom is not genteel. Mom is not trained. Mom is a momma bear doing anything she needs to protect her cub. Maybe a student needs such a zealous advocate, but when the claws come out, civility is forgotten. The same can be true for Dad; he has claws, too.

The tip also suggests that colleges will have trouble recruiting faculty and staff to serve as hearings officers and chairs when those people will be “doing battle with skilled attorneys on how a question should be phrased, whether it should be posed, and whether it was sufficiently answered.”

But it returns at the conclusion to emphasize that “this entire cross-examination blueprint could significantly chill victims from ever deciding to report sex discrimination and seek formal redress” – and “that seems to be” the intention of the department’s Office for Civil Rights.

Read the tip of the week, which was shared by the due-process group Stop Abusive and Violent Environments as a “good laugh.”

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Disallowing Cross-Examination Can Violate State and Federal Law

Post author By saveadmin
Post date January 14, 2019

The Supreme Court has lauded cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Suzanne Goldberg overlooks the Supreme Court’s praise for cross-examination, attributing this praise instead to a “1904 legal treatise” (“Keep Cross-Examination Out of College Sexual-Assault Cases,” The Chronicle, January 10).

But it is not just long-dead legal writers who view cross-examination this way. The Supreme Court still does, as it declared in its 1999 ruling in Lilly v. Virginia.

Goldberg wants to keep cross-examination out of campus sexual-assault and harassment cases. But doing that can violate state and federal law.

Some state courts have ruled that their state’s Administrative Procedures Act gives accused students the right to cross-examine their accuser. Federal law often confers this right as well. In Doe v. Baum (2018), a federal appeals court ruled that an accused student had a due-process right to cross-examination of his accuser in a college discipline hearing. That court ruling, just like the Supreme Court’s Lilly decision, touted cross-examination as ”the greatest legal engine ever invented” for uncovering the truth.

Colleges cannot ignore these court rulings in favor of accused students’ statutory and constitutional rights, even if Goldberg disagrees with them.

Hans Bader
Former Education Department Lawyer
Arlington, Va.

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Over Half of Accused Students Found Not Responsible by Campus Sex Tribunals

Post author By saveadmin
Post date January 11, 2019

An analysis of annual reports from 48 colleges in 21 states reveals that 52.7% of campus sexual assault adjudications resulted in a finding of “not responsible” for the accused student – see table.

These online reports identify the outcomes for allegations of sexual assault hearings. The link to each report is embedded in the name of the College or University, first column in the Table, below. The information comes from both private and public institutions nationwide.

The analysis includes only reports that specifically identify the outcomes for adjudications involving allegations of sexual assault. The information does not include other potential conduct code violations, such as sexual harassment and sexual exploitation.

This finding is similar to a 2017 NCHERM report titled “Due Process and the Sex Police” that stated, “annual summaries show that they are finding no violation of policy 60% of the time in their total case decisions.”

Most institutions review sexual misconduct cases based on the preponderance of evidence standard. In practice, this standard is essentially a measure of credibility of the statements of the accuser and the accused. The fact that a larger percentage of students was found not responsible demonstrates that most allegations investigated by colleges are determined to be unfounded.

Table: Outcomes of Campus Adjudications of Sexual Assault Claims at 48 Colleges


COLLEGE/ UNIVERSITY	ENROLLMENT (2017)ⁱⁱ	TIME PERIODⁱⁱⁱ	RESPONSIBLEⁱ	NOT RESPONSIBLE
Amherst College	1,849	2014	5	3
Augustana College	2,537	2016	2	1
Brown University^*	9,781	2016-17	0	3
California State University -Chico	17,557	2017-18	3	4
Carleton College	2,105	2017-18	3	0
Case Western Reserve University^*	11,664	2015-16	1	1
Central Connecticut State University	11,784	2017	1	3
College of William and Mary^*	8,617	2016-17	4	9
Columbia University, NYC	29,372	2016-17	3	6
Cornell University	22,319	2016-17	5	8
Dartmouth College	6,409	2016-17	4	4
Delaware State University	4,328	2017	3	2
Eureka College	672	2016	3	24^iv
Goldey-Beacom College	2,063	2017	8	9
Hamilton College	1,883	2016-17	4	3
Illinois State University^v	21,039	2017	10	4
Indiana U.-Bloomington	49,695	2016-17	13	6
Indiana University -Purdue University -Indianapolis	29,804	2016-17	1	2
Lake Forest College	1,578	2016	2	1
Massachusetts Institute of Technology	11,376	2014-18	10	6
Michigan State University^*	50,340	2016-17	16	16
Northwestern University	21,823	2016	4	2
Occidental College	1,969	2015-16	2	0
Oklahoma State University-Main Campus ^vi	25,622	2016-17	4	0
Park University	11,227	2017-18	1	2
Quinnipiac University	9,900	2017	1	0
Rhodes College	2,029	2017-18	1	3
Sacred Heart University	8,532	2017	1	1
San Jose State University^vii	32,154	2016-17	4	1
Southern Connecticut State University	10,320	2017	2	0
Stanford University^viii	17,184	2016-17	3	5
The California Maritime Academy	1,107	2017-18	0	1
University of Alaska Anchorage	16,318	2016-17	0	1
University of Alaska Fairbanks	8,283	2016-17	3	0
University of Arkansas^ix^,*	27,194	2017-18	5	10
University of Bridgeport	5,658	2017	0	1
University of California-Irvine	32,754	2017-18	3	3
University of California- San Diego	34,979	2015	1	0
University of Chicago^x	15,775	2016-17	3	6
University of Connecticut^xi	27,721	2017	4	11
University of Delaware	23,009	2017	2	0
University of Hartford^*	6,714	2017	1	4
University of Maryland-College Park	39,083	2016-17	4	6
University of Michigan- Ann Arbor	44,718	2017-18	0	3
University of Montana	12,419	2016-17	3	1
University of Oregon	23,546	2016	15	9
Western Michigan University^*	23,227	2016-17	5	6
Yale University^xii	12,458	2017-18	2	4
TOTAL:			175	195
PERCENTAGE:			47.3	52.7

i Decisions are mostly based on formal procedures. Exceptions for a few schools (noted below) include allegations that were screened out as not rising to the level of a policy violation. Few schools report those data, yet it is likely that many schools screen out allegations that do not rise to policy violations, suggesting that the percent not responsible would be larger than calculated here if schools reported the total number of allegations screened out. The number of decisions is usually the number of allegations, unless the report provides the number of respondents. Multiple allegations per respondent were more frequent than multiple respondents per allegation; hence the total number of decisions is somewhat greater than the number of respondents.

ii Enrollment data are from the US Dept. of Education, 2018.

iii The data represent one year from each school, usually the latest academic or calendar year for which a report is available (except MIT with 4 years).

iv If the large number of not responsible findings for this small school are considered an outlier, deleting the school’s data changes the total not responsible to 50%.

v Six “otherwise disciplined” students tallied as responsible in this table.

vi Unwelcome sexual touching and Exposure are not included in OSU’s definition of sexual assault.

vii Sexual battery is included here as sexual assault for SJSU.

viii Some of Stanford’s outcomes are ambiguous: 1 of 2 non-hearing resolutions were counted as responsible, the other is not clear and was not counted; 5 student decisions had an unspecified split between “no charge” and formal findings of not responsible. All 5 were counted as not responsible.

ix Count of 9 outcomes listed as “Available evidence did not support a charge of policy violation or necessitate further university investigation” were tallied here as not responsible.

x Sexual assault definition doesn’t include sexual abuse (non-consensual sexual contact).

xi Outcomes for employees not included here.

xii Not responsible total includes 1 screened out allegation.

^* These 7 schools may have included a small number of allegations involving employees, teasing this out was not possible with the reported information.

Uncategorized

Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault

Post author By saveadmin
Post date January 7, 2019

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Appellate Court Decisions Generally Support Proposed Federal Regulations for Campus Sexual Assault

WASHINGTON / January 7, 2019 – A report released today analyzes appellate court decisions on campus sexual assault, and concludes “the findings of the 14 appellate decisions are generally consistent with, and substantially enhance the legal basis for the provisions contained in the proposed Title IX regulations.”

The report analyzes 14 appellate rulings that were at least partly favorable to the accused student, and were issued from 2013 to 2018. Of the 14 decisions, eight were rendered in 2018 alone.

Among the 14 cases, five were decided by federal appellate courts and nine were resolved by state appellate courts. Four cases came from California appellate courts, three rulings from New York courts, and three from the 6^th Circuit Court. Additional rulings came from the 1st, 2nd, and 4th Circuit Courts, and the Washington state appeals court.

The decisions highlighted due process deficiencies in eight areas: Insufficient hearing process, lack of cross-examination, insufficient notice, inadequate investigation, conflicting roles of college officials, improper use of witness testimony, potential sex bias, and misuse of affirmative consent policies.

The report then compares the appellate Judicial Findings with the due process provisions enumerated in a recent Notice of Proposed Rule-Making issued by the Department of Education (1). The analysis documents a general consistency between the appellate court rulings and the proposed regulatory changes.

Last week, the California Court of Appeal issued another decision in favor of the accused student. The court chided the University of Southern California for its reliance on a single-investigator approach, noting this practice “ignores the fundamental nature of cross-examination,” which is “incompatible” with any credible effort “to uncover the truth.” (2)

The SAVE Special Report is available online (3). A summary of the 14 cases is also available (4).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org