ACLU Sells Out

[The Big Dog]

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

Really good article! Thanks for sharing.

 

[The Norseman]

But as noted, many of these issues are not criminal matters, and even when there is a potential crime a victim might choose not to press charges.

True.

The college shouldn't do anything?

Right.

The victim has no recourse?

Of course the victim has recourse. In your example, however, they chose not to go to the proper authorities.

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

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

There's no reason why a university can't develop a fair process to adjudicate violations of its own rules, and there's no reason why it shouldn't be required to do so.

In the case of a crime being committed and in light of the obvious bias which cannot be avoided, I think are two legitimate reasons why they can't develop a fair process and should not be required to.

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

And if the victim chooses not to go to the cops -- and many don't, for well-understood reasons -- or some overworked small-town cop shop decides not file charges, should the university consider the matter closed?

Yes. Or do you wish to go against what the victim themselves choose?

Everybody should pretend nothing happened?

No. Victim support is still necessary and useful if nothing else.

And what about misconduct that doesn't rise to the level of a crime?

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

Universities are free to set their own standards.

They shouldn't be in these instances.

 

[theprestige]

Binding arbitration.

 

[Chris_Halkides]

case at George Mason University

Binding arbitration.

That might be especially appropriate for a case at George Mason. I am not sure whether or not the ACLU has a position on this case.

 

[lomiller]

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

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

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

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

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

 

[Ziggurat]

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

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

Do you think it's a good thing that we use a very high standard for criminal trials? If so, why?

 

[The Big Dog]

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

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

From the earlier cited article:

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

This year, moreover, federal judges hearing lawsuits against the University of Colorado and the University of Mississippi suggested that the preponderance standard in Title IX sexual-assault proceedings is itself unlawful. U.S. District Judge James Browning of New Mexico went further, holding that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.”

 

[lomiller]

Do you think it's a good thing that we use a very high standard for criminal trials? If so, why?

In a criminal trial the State make take away basic freedoms or even the life of the accused, neither of which is the case here. “Attending my preferred school” is not and never has been a right. Even in civil cases (which this still is not) involving more serious damage are decided by preponderance of the evidence rules.

 

[lomiller]

“Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.”

Schools make the “life altering decision” of who can/can’t attend all the time without any requirement for due process. Admissions, academic standards and even other conduct violations do so with far less “due process” than what the ACLU is arguing for in cases of sexual harassment. Why are you proposing people the evidence says are guilty of sex crimes be afforded special protections?

 

[Ziggurat]

In a criminal trial the State make take away basic freedoms or even the life of the accused, neither of which is the case here.

Higher standards apply in less serious criminal cases as well, when the punishment may just be a fine. Do you agree with that?

 

[The Big Dog]

Schools make the “life altering decision” of who can/can’t attend all the time without any requirement for due process. Admissions, academic standards and even other conduct violations do so with far less “due process” than what the ACLU is arguing for in cases of sexual harassment. Why are you proposing people the evidence says are guilty of sex crimes be afforded special protections?

It seems to be very clear that you did not read the article that was posted earlier, because those claims about "other conduct violations" are false (and the other two are have nothing to do with the subject at all). In fact the article points out that people accused of sex related conduct violations get LESS protection than other violations.

The statement quoted in bold however demonstrates with certainty that you are applying the standard of guilty until proven innocent, really remarkable...

 

[Chris_Halkides]

Meet John Doe

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

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

Perhaps you did not notice that I was writing in response to the WaPo article, which brought student-athletes into the discussion. My response can be summarized (a) Although schools might be inclined to "turn a blind eye" to star football or basketball players, these are highly atypical circumstances that do not have anything to do with, say, a typical business major, and (b) even some football or basketball players are treated poorly in Title IX proceedings.

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

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

I agree with other commenters here who have faulted the ACLU on logical grounds. The whole notion that it the accused versus the accuser is incorrect. The accuser is not punished if the accusation is deemed not to have met the standard of evidence, but the accused is punished.

 

[The Big Dog]

Thanks Chris for your terrific posts in this thread.

 

[Eddie Dane]

deleted.

low-quality post.