ACLU Sells Out

[xjx388]

If a student reports another student for something that fits the definition of a crime to the University, The University should :

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

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

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

 

[Giordano]

double post- sorry!

 

[Giordano]

If a student reports another student for something that fits the definition of a crime to the University, The University should :

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

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

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

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

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

 

[xjx388]

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



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

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


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[lomiller]

If a student reports another student for something that fits the definition of a crime to the University, The University should :

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

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

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


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

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

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

Redundant. The university never does anything other than enforce it’s conduct polices. The school is NOT replacing or substituting for the criminal changes, and they have reason to think a crime has been committed they should be forwarding this to law enforcement regardless.

 

[Bob001]

A sports writer assesses the proposed changes:

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

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

Any case that a woman didn’t report to the right campus authorities, with the right paperwork filed to the right channels, could be discarded. It would not be enough, for instance, for a Michigan State gymnast to tell her head coach that Nassar was doing things to athletes with his ungloved hands that didn’t seem right. Or for a Baylor female athlete to send word to Briles that five of his football players gang-raped her, only for him to ask, “What was she doing around those guys” in the first place?

https://www.washingtonpost.com/spor...e8-80d0-f7e1948d55f4_story.html?noredirect=on

 

[Ziggurat]

A sports writer assesses the proposed changes:


https://www.washingtonpost.com/spor...e8-80d0-f7e1948d55f4_story.html?noredirect=on

What Nassar did was criminal. It wasn't close to borderline. It would clearly fall well within the new bounds of what schools would be required to investigate if properly reported.

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

So the idea that these changes to title IX will open the flood gates for more Nassars is delusional: the failures that led to his continued abuse run far deeper than title IX is capable of addressing. Nor was title IX ever intended to handle such egregious criminal behavior. That has always properly been the role of the criminal justice system, and if you want to stop future Nassars, you need to look to the failures in that system, not title IX, if you want to have any hope of that.

 

[epeeist]

If a student reports another student for something that fits the definition of a crime to the University, The University should :

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

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

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

I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

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

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

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

While I tend to think that people should go to the police - to protect others (very frustrating to read about someone with multiple victims, only caught because eventually someone went to the police, other victims could have been prevented if even one person had reported them before) - if someone thinks actions were a one-off that won't be repeated but they want to be protected, I can understand that point of view also.

 

[Bob001]

What Nassar did was criminal. It wasn't close to borderline. It would clearly fall well within the new bounds of what schools would be required to investigate if properly reported.
....

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

Yeah, the accused should have the right to see the evidence and respond to the allegations. But the university shouldn't have the option of sweeping anything under the rug.

 

[theprestige]

I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

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

I think it makes sense for universities to conduct their own inquiry, and impose their own judgement, for exactly this reason.

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

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

If universities are going to conduct trials of students at the taxpayer's expense, then those universities should apply the same consistent and equitable standards of justice that taxpayers expect and demand from their government.

 

[theprestige]

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

Sometimes, far from ignoring such things, universities seem eager to acknowledge and address crimes that never actually happened.

 

[Ziggurat]

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

The university protected Nassar because he was powerful. Students are not powerful. Universities do not have more reason to ignore student misconduct, they have far less. And that's born out by their actual conduct: universities have already demonstrated a propensity not to shield accused students, but to persecute them even when innocent.

 

[The Norseman]

I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

Let's say...<snip>

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

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

Yeah, the accused should have the right to see the evidence and respond to the allegations. But the university shouldn't have the option of sweeping anything under the rug.

Sometimes, far from ignoring such things, universities seem eager to acknowledge and address crimes that never actually happened.

The university protected Nassar because he was powerful. Students are not powerful. Universities do not have more reason to ignore student misconduct, they have far less. And that's born out by their actual conduct: universities have already demonstrated a propensity not to shield accused students, but to persecute them even when innocent.

All of these are great support for my earlier statement in this thread: that the schools have skin in this game and are thus not neutral judges which means that it's an inherently biased system and for that reason alone, should not be utilized.

 

[Bob001]

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

All of these are great support for my earlier statement in this thread: that the schools have skin in this game and are thus not neutral judges which means that it's an inherently biased system and for that reason alone, should not be utilized.

But as noted, many of these issues are not criminal matters, and even when there is a potential crime a victim might choose not to press charges. The college shouldn't do anything? The victim has no recourse? There's no reason why a university can't develop a fair process to adjudicate violations of its own rules, and there's no reason why it shouldn't be required to do so.

 

[xjx388]

I think the ACLU is wrong, but I still acknowledge it's a lot more complicated than you suggest.

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

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

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

While I tend to think that people should go to the police - to protect others (very frustrating to read about someone with multiple victims, only caught because eventually someone went to the police, other victims could have been prevented if even one person had reported them before) - if someone thinks actions were a one-off that won't be repeated but they want to be protected, I can understand that point of view also.

I can see your point here but I'd like to see a real life example in order to go further. There would have to be some real screw ups in order for a confessed assaulter caught on video with multiple live witnesses to go free. I will grant that if the University has clear and convincing evidence then they should be free to conduct their own hearings in such a case as long as due process is followed. I don't think preponderance of the evidence should be sufficient in such a "failed prosecution" scenario.

For violations of University policy, I have no problem with preponderance.

 

[xjx388]

But as noted, many of these issues are not criminal matters, and even when there is a potential crime a victim might choose not to press charges. The college shouldn't do anything? The victim has no recourse? There's no reason why a university can't develop a fair process to adjudicate violations of its own rules, and there's no reason why it shouldn't be required to do so.

For a crime, the recourse IS the justice system. Is a school supposed to investigate the matter on their own? Is the accused to have no chance to mount a defense and cross examine the accuser? Is anything less than reasonable doubt appropriate? I think the answer to these questions is a resounding no.

If the accuser refers a potential crime to the University, the University should be duty bound to refer the matter to the police; not play act at being the police, judge and executioner (professionally anyway).

 

[Bob001]

For a crime, the recourse IS the justice system. Is a school supposed to investigate the matter on their own? Is the accused to have no chance to mount a defense and cross examine the accuser? Is anything less than reasonable doubt appropriate? I think the answer to these questions is a resounding no.

If the accuser refers a potential crime to the University, the University should be duty bound to refer the matter to the police; not play act at being the police, judge and executioner (professionally anyway).

And if the victim chooses not to go to the cops -- and many don't, for well-understood reasons -- or some overworked small-town cop shop decides not file charges, should the university consider the matter closed? Everybody should pretend nothing happened? And what about misconduct that doesn't rise to the level of a crime? Universities are free to set their own standards. The question is by what process should those standards should be enforced?

And "beyond reasonable doubt" is only the standard in criminal trials. It is not the standard in civil suits or administrative proceedings or in most spheres of life. If you suspect a plumber does bad work, you don't have to hire him to work on your house. If you suspect your employee of theft, you can fire him. I repeat, a university is a voluntary membership organization. It can set the conditions for membership.

 

[xjx388]

And if the victim chooses not to go to the cops -- and many don't, for well-understood reasons -- or some overworked small-town cop shop decides not file charges, should the university consider the matter closed? Everybody should pretend nothing happened? And what about misconduct that doesn't rise to the level of a crime? Universities are free to set their own standards. The question is by what process should those standards should be enforced?

Forget about non-crimes for a moment. If a victim does not want to go to the police, why would they go to the University?

And "beyond reasonable doubt" is only the standard in criminal trials.

And if a University is investigating a crime and then trying the accused in a proceeding that could ruin their lives, why should it be less?

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

Apples and Oranges.

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

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



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[Chris_Halkides]

College athletes under Title IX

A sports writer assesses the proposed changes:


https://www.washingtonpost.com/spor...e8-80d0-f7e1948d55f4_story.html?noredirect=on

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

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

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

 

[Chris_Halkides]

The ACLU’s J’Accuse

KC Johnson and Stuart Taylor wrote an article about the ACLU's response. They noted "U.S. District Judge James Browning of New Mexico went further, holding that 'preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.'"