New Campus Sexual Misconduct Policy Threatens Civil Liberties (NoH)

A new policy from the Department of Education is supposed to help fight sexual assault, but it’s a step backwards for civil rights.

Last April, Russlynn Ali of the Office of Civil Rights (OCR) in the Department of Education wrote a policy letter to college administrators about how to interpret their Title IX requirements for sexual assault and sexual harassment policies. This new “Dear Colleague Letter” (DCL) abandons previous protections for civil rights in the old 2003 DCL, and has several troubling implications.

This policy is well-intentioned, but it will contribute to colleges erecting draconian sexual assault and harassment policies on campuses in order to save themselves from punishment by the OCR. Colleges will constrict the rights of students accused of sexual assault and harassment, and they will even harm the interests of complainants.

Preponderance of Evidence

The most dramatic move in the letter is to mandating that college judicial panels use a “preponderance of evidence” standard to judge allegations of sexual assault and sexual harassment. An individual is considered guilty by the “preponderance of evidence” if it’s “more likely than not” that they committed the crime (i.e. 50.01%).

Previously, colleges were free to define their own standards of proof. Some colleges were already using “preponderance of evidence,” while others were using a standard of “clear and convincing evidence” (“significantly more likely than not”), or “beyond a reasonable doubt” (~98%).

The preponderance of evidence standard means that students can be found guilty and suspended or expelled on a suspicion that’s “more likely than not.” College judicial tribunals can tell students and staff accussed of sexual harassment or sexual assault, “hey, we know there’s a 49% chance that you are innocent, but we are punishing you anyway.” They believe in wrongly punishing 49 innocent individuals to punish 51 perpetrators.

In the Dear Colleague Letter, Russlynn Ali argues that colleges must use a “preponderance of evidence” standard to comply with Title IX. Yet several legal thinkers dispute her claim. Hans Bader points out that only schools and institutions, not individuals in disciplinary hearing, are subject to Title IX.

Will Creeley of the Foundation for Individual Rights in Education (FIRE) wrote an open letter to the Office of Civil Rights disputing Ali’s reasoning:

In determining compliance, OCR is engaged in a matter of administrative review; at stake is federal funding, not an individual’s continued matriculation, reputation, and employment prospects. As such, OCR’s own use of a lower standard of evidence may be justified. In contrast, when determining whether a student has in fact committed sexual harassment or sexual violence against another student, the college or university judicial body conducting the proceeding is engaged in precisely the “quasi-criminal” adjudication[22] for which the Supreme Court has deemed the “clear and convincing” standard to be appropriate.[23] The stakes for the accused are extremely high; the permanent, severely negative consequences of a guilty finding will follow the student for the rest of his or her life. As a result, a campus judicial hearing charged with deciding between guilt or innocence much more closely resembles a criminal proceeding than OCR’s determinations of institutional compliance.

By “quasi-criminal,” Creeley means that since the punishment involves removing the punished individual from society (suspension, expulsion, difficulty applying to jobs or graduate school), it is closer to a criminal punishment rather than a civil punishment involving mere monetary damages.

As far as I can tell, OCR wants to force colleges to use a low civil standard of evidence to make it easier to find people guilty of criminal conduct, regardless of the flimsiness of their legal justification. OCR gets to have it both ways: they are mixing and matching a civil burden of proof (preponderance of evidence) with a quasi-criminal punishment (suspension, expulsion, firing, and black marks on your record).

Even if OCR’s legal justification is shoddy, don’t they have their heart in the right place? Victims’ advocates on campuses have been calling for this change. If someone appears to have committed sexual assault “more likely than not,” isn’t it a good thing to kick them off campus? Heck, I wouldn’t want to be in the same dorm as someone with a 50%+ chance of being a sexual assaulter.

At Stanford, a campus feminist applauds her university for lowering the burden of proof to comply with OCR:

Now, as an advocate of survivors, I am elated that this change has happened. By having such a stringent standard for sexual misconduct cases, survivors of sexual assault and relationship abuse were being deterred from pursuing the process, given the difficult standards they were required to meet.

Indeed, the new standard may indeed encourage more survivors to come forward, but at what cost? The OCR letter strikes a blow to the civil liberties of free speech and due process.

Free Speech

Thanks to the mandatory preponderance of evidence standard, it will now be a lot easier to prosecute sexual harassment cases in college judicial proceedings. In addition to preponderance of evidence being too low a standard to justify such a black mark on someone’s record, college harassment policies are notoriously broad.

  • Kansas State University’s speech codes prohibit “humor about sex or women in general”, “sexual teasing, jokes, remarks or questions”, and “turning discussions to sexual topics, asking about sexual fantasies, preferences or history”
  • UC Berkeley prohibits “Humor and jokes about sex in general that make someone feel uncomfortable”
  • Alabama State University’s harassment policy bans “behavior that causes discomfort, embarrassment or emotional distress”

To punish you for harassment on a college campus with codes like these, all your tribunal needs to establish is a 50%+ chance that you engaged in one of the above behaviors. As FIRE’s Greg Lukianoff points out, college administrators want to prohibit any remotely objectionable behavior to prove that they are cracking down on sexual harassment and assault. College lawyers want their policies to prohibit everything possible to avoid liability for negligence. It’s the Soviet system of justice: “everyone is guilty of something and waiting to be caught.”

When everyone is guilty, we are asked to place our trust in our administrators to punish the right people. We trust our neighbors, friends, lovers, and random people overhearing us not to report us. We trust our tribunals to treat us fairly.

Unsurprisingly, not everyone is ready to place their futures in the hands of college administrators, while Russlynn Ali eggs them on to Soviet-style justice. The American Association of University Professors (AAUP) recognized the threat of the preponderance standard to the careers of professors:

Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, we believe that the “clear and convincing” standard of evidence is more appropriate.

The AAUP also feels that OCR isn’t making clear to colleges that they must protect freedom of speech, and that harassment policies could result in professors being sanctioned for course content that makes students uncomfortable:

Effective training must differentiate between appropriate course content and harassment. No policy should inhibit intellectual inquiry. Courses like “The Literature of HIV/AIDS,” “Human Sexuality,” and gender studies courses that directly address sex and sexuality can make some students uncomfortable. Even a first-year writing class that discusses a topic like female genital mutilation or other controversial topic can create discomfort. Any training for faculty, staff, and students should explain the differences between educational content, harassment, and “hostile environments,” and a faculty member’s professional judgment must be protected. Women’s studies and gender studies programs have long worked to improve campus culture by teaching about issues of systemic gender inequity, sex, and sexuality. “Dear Colleague” should encourage discussion of topics like sexual harassment both in and outside of the curriculum, but acknowledge that what might be offensive or uncomfortable to some students may also be necessary for their education.

It’s flabbergasting to realize that the combination of overbroad sexual harassment policies and the preponderance of evidence standard could result in punishment for speech about sexuality and gender. If a professor or student group sponsored a sex educator like Clarisse Thorn to speak, a disgruntled student in the audience, or even overhearing the talk from a hallway, could accuse the sponsor of sexual harassment for making them feel uncomfortable. And now, they would only have to show that the talk was harassment “more likely than not.”

It’s probably highly unlikely that such an accusation would be made, or that a tribunal would support it. Yet the more lectures you give on controversial topics like sexuality and gender, the more people hear you, and the higher the chance that someone gets offended. I am hesitant to allow college tribunals to prosecute people for making others uncomfortable, and trusting them to only use this power for good.

Due Process

For OCR, victims’ advocates, and everyone else who has forgotten, due process is the principle derived from the 5th and 14th Amendments that “No person shall…be deprived of life, liberty, or property, without due process of law.” A full discussion of due process is beyond the scope of this post, but for now we will touch on some of the ways that OCR and/or college disciplinary procedures violate due process of either the accused, the complainant, or both.

Preponderance of evidence
As discussed above, the preponderance of evidence standard undermines the accuracy of the results. Tribunals are allowed to deliver verdicts with a 49.99% chance of being wrong. A procedure with a high chance of mistakes is not appropriate for adjudicating quasi-criminal punishments.
Lack of impartiality
College judicial tribunals have a reputation for being kangaroo courts among both victims’ rights advocates1, and civil rights advocates2. Now it’s easier for them to find you guilty. Staff and students on the panels may lack training, or receive training from the same campus organizations that investigate and prosecute complaints.3 After looking at the training materials for disciplinary panelists at Stanford, a lawyer found that frightening bias against accused men was encouraged.
Appeals
The OCR letter mandates that if the accused is granted an appeal, then the accuser must also be granted one, too. Yet Hans Bader points out that this policy is at odds with how the American justice system works: “There is nothing nefarious about allowing only the accused to appeal,” he emphasizes. And of course, if an accused student appeals, then they must beat the preponderance of evidence standard twice. Allowing the accuser to appeal tries the accused twice for the same crime, which would be considered double jeopardy in a real criminal proceeding. As usual OCR wants to have its cake and eat it, too: doling out quasi-criminal punishments while only giving the flimsiest due process protections.
Cross-examination
The OCR letter prohibits the accused from confronting the accuser and cross-examining them. Uncomfortable as I am about the notion of a potential perpetrator cross-examining a potential victim, denial of cross-examination is a denial of due process.
Presumption of innocence
Part of the point of due process is that the system can’t start punishing you before you get your hearing. Yet the OCR requires colleges to violate this principle: “When taking steps to separate the complainant and the alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain.” The former feminist disciplinary panelist became horrified that “we have created college policies and employment policies that make it easy to get an accused off campus or off the work premises without any real investigation.”

In other words, an accusation of sexual misconduct will lead colleges to kick accused students out of their housing and classes that they paid for, even before they are found guilty. Like with cross-examination, I am uncomfortable with leaving potential victims and potential perpetrators in the same housing and classes. I don’t know what the solution is, but I’m very troubled about the erosion of due process and presumption of innocence.

Unjust accusations
A Stanford feminist leader lauding the new policy gives the standard erroneous 2% figure for false rape accusations. A better estimate would be 6%, though of course that’s probably a conservative estimate, because it only includes accusations that multiple observers coded as false. The rate of false accusations could be even higher under the universal preponderance of evidence standard: if the OCR letter encourages more victims to come forward, then it will probably encourage more false accusers to come forward, too.

Yet accusations don’t have to be maliciously false for an innocent person to be accused and punished. Parties may miscommunicate about consent or misjudge the other’s level of intoxication. In cases involving alcohol or drugs, the complainant might have difficulty identifying their attacker. Under a lax standard of proof, the wrong person could be punished: “hey, we got someone who looks like they sorta mighta dun it, so case closed.” Samantha Harris of FIRE argues that “More guilty people may be found to have committed the offense using a lesser burden of proof, but more innocent people will be found guilty too, and in some of those cases it will mean that the actual perpetrator goes unpunished–an outcome that harms not only the victim in that case but potential future victims as well.” While punishing the wrong person is probably pretty rare, it’s now going to be slightly less rare.

Right to counsel
College sexual harassment and sexual assault procedures can prohibit lawyers from being present. Not only does the denial of counsel hurt the accused, but it could also jeopardize any future court case that a complainant might file. The OCR letter doesn’t require that disciplinary panels allow lawyers, but only that if one party is allowed a lawyer, the other party must also be allowed a lawyer. Without a lawyer, there is a higher chance of any of the above injustices occurring.

Some folks might feel that due process is just some legal mumbo jumbo that isn’t as important as defending women from evil men kicking suspected sexual harassers and assaulters off college campuses. This sort of thinking assumes that the ends justify the means. Yet historically, the people who are trying to throw away due process are rarely on the right side.

The ends justify the means

We now face a reduction of free speech and due process on university campuses thanks to a biased Office of Civil Rights, paranoid colleges trying to maintain federal funding, feminist victims’ advocates on college campuses with their second wave attitudes, and professional risk management consultants who capitalize on the fears of college administrators by selling expensive training.

The new policies are inspiring extensive criticism from various legal and civil liberty thinkers, from the Foundation for Individual Rights in Education (FIRE), and from the American Association of University Professors (AAUP). Risk management consultant Brett Sokolow accuses FIRE of “standing up for penises everywhere.”

Yet one hardly needs a penis to object to the new sexual discipline on college campus. Presumably, proponents of this policy imagine a prototypical male perpetrator and a female victim. While this combination may be most common, men will accuse women of sexual misconduct and harassment, and women will accuse other women. See the case of Jane Gallop, the feminist professor who was shocked to be accused of sexual harassment by two female students, believing that the charge was meant to apply to men only. Under the present preponderance of evidence regime, it would be more likely that she would be punished.

Ann Green, chair of Committee on Women in the Academic Profession for the AAUP doesn’t have a penis, but she does have a problem with the new policy: she can tell that it threatens the tenure and livelihood of herself and other professors, and their ability to teach courses on the controversial subjects of sex and gender. I suspect she doesn’t want professors’ careers and academic freedom to be collateral damage in the zeal of OCR to punish individuals suspected of sexual misconduct and the paranoia of colleges trying to avoid OCR’s iron fist and make their ideological campus feminists happy.

Even if you are a woman, you might consider how you would feel if a male family member or friend was accused in a college tribunal under the preponderance of evidence standard, and whether you think they would be getting a fair trial.

Potential harm to survivors

In my view, the primary harm of the OCR letter is its sacrifice of the free speech and due process rights of the accused, who are most likely to be men. Yet is so single-minded that it even risks harming female survivors, the very people it’s supposed to protect. Above, I discussed the greater risk of the wrong individual being punished in a case of mistaken identity, while the real perpetrator remains free. Another problem that will probably be more common will be the effects of OCR’s new mandatory investigation rule.

In their investigation of sexual assault on college campuses that interviewed survivors and administrators, the Center for Public Integrity found that some colleges had mandatory reporting rules, where any staff who knew about a potential assault were required to report it to police. The CPI report found that mandatory reporting rules could actually be counter-productive:

Char Kopchick, assistant dean of students at Ohio University, says that her university’s efforts at increasing sexual assault reporting rates several years ago achieved just the opposite effect. The university put in place a mandatory reporting requirement — meaning that all faculty and staff were obligated to report a sexual assault to police, unless they were counselors or health care providers specifically bound by privacy rules. As a result, Kopchick says, students stopped showing up.

“Now they know there’s going to be an investigation,” she says. “What we find with a lot of survivors, they’re not ready for that. … Sometimes it takes a person six months before they’re willing to go forward. Sometimes they never want to do anything.”

Thanks to the OCR letter, all colleges must now investigate any allegation of sexual misconduct, even when no official complaint is filed. The letter says that colleges should attain consent from the complainant before initiating their investigations, but the language is very murky: “If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request to pursue an investigation.”

That’s some dizzying doublespeak. So if the complainant asks that no investigation occur, colleges are required to sneak around and do everything they can to investigate and respond anyway? On the subject of consent for investigations, it’s really not clear that OCR feels that “no means no.”

Similar to the problem of mandatory reporting, there is a worry that mandatory investigation will scare survivors from coming forward:

Deborah Nolan, dean of students at Ursinus College, thinks the guidelines will suppress reporting at her school, since any college official who hears of an incident must now initiate an investigation. “Students haven’t been afraid to tell us what’s going on,” she says. “That’s going to change.” (Philadelphia Magazine)

With such a lack of due process, the whole validity and meaningfulness of sexual misconduct charges could be undermined over time. Sexual assault or harassment is a black mark on one’s record now, but if the unfairness and capriciousness of college tribunals under the current OCR becomes widely known, then the stigma of those accusations could eventually become watered down and real perpetrators would not receive punishment. If everyone is guilty, then nobody is.

College sexual assault and sexual harassment policies under OCR’s current regime are an affront to the civil liberties of free speech and due process, erected with such a blinkered utilitarianism that they even risk damaging the interests of survivors and undermining the whole system of justice on college campuses. On the bright side, OCR’s new policy might be easily found illegal, because it was decreed without giving the public a notice and opportunity to comment.

Further reading: FIRE’s case page

This comment thread is the “No Hostility” thread. Please read this and this for the ground rules. The “Regular Parallel” thread can be found here.

  1. According to the Center for Public Integrity’s journalistic investigation, “By silencing victims and turning judicial hearings into something like kangaroo courts, colleges prioritize their own reputations over victims’ safety and support and turn their campuses into hostile environments for victims of sexual assault.”[]
  2. Harry Silverglate argues that the modern college tribunal:
    trivializes the historic procedural and substantive rights that centuries of civic experience have taught offer the best chance of reliably sifting truth from falsity. The absence of important rights at such proceedings results when disciplinary boards de-emphasize formal procedures, and instead see their mission as “educational” rather than truth-seeking. Such rationalizations for short cuts create a situation ripe for error and injustice.

    []

  3. Aspazia, a feminist who served on disciplinary tribunals reports that “The hearing board is comprised of people hand picked by the same office that writes and enforces the code.”[]

45 Comments

  1. AdamaKnowsBest says:

    I got 2 say the actions of the OCR r unsettling 2 me as this policy will have an obvious detrimental effect on both civil liberties and justice 4 the reasons u cited. I sincerely hope they re-think this policy but I doubt it as that seems 2 b the way things go.

    Anyways good job with the post.

  2. Schala says:

    This usage of numbers to spare yourself a whole second of typing is making my brain melt – and my opinion of the literacy of people waver.

  3. Catalogue says:

    I think now that this is finally becoming reality radical anti-feminism will leap into the mainstream. It’s important to fight this hard at the college level because the next step is making these civil rights violations part of the legal system.

  4. Clarence says:

    Hugh:
    Very good write-up. Probably deserves more coverage than it is getting, really. Maybe I should alert some of the MRA’s to this post. Many have talked about this, but not (with the noted exception of the False Rape Society) with such depth let alone given the amount of links you have.

    I intend to refer back to this post often. Thank you!

  5. Hugh Ristik says:

    Thanks, Clarence. This post should be a good primer for MRAs who are unfamiliar with FIRE’s work, and I also tried to write this post to be more accessible to feminists than the False Rape Society’s writeup, for instance.

    What both MRAs and feminists need to understand is that even though men will probably be the primary victims of these policies, they are potentially problematic to women, too. Women will receive false and frivolous accusations from men, and from other women. Queer women are especially threatened, because they will receive accusations from women, who are probably more likely to be believed than men. And certain dynamics about college disciplinary proceedings like prohibition of lawyers hurt female survivors, too. Additionally, if OCR is encouraging colleges to try to investigate in any way that the complainant doesn’t prohibit, then female and male survivors might worry about coming forward.

    For instance, if I was a survivor reading the OCR’s order that all complaints must be investigated regardless of whether they were officially filed, and murky statement that “If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request to pursue an investigation,” I would be very confused about what would happen if I simply wanted to talk to a college staff member (who is not a confidentiality-bound counselor or doctor), without being sure I wanted an investigation.

    Despite the ignorance of this Jezebel article, this is not a case of boys against girls. This is a case of a small group of second-wave feminist ideologues and chivalrous men vs. everyone. That group has just succeeded in portraying itself as protecting women from men.

    Yet if mainstream feminists were to truly understand what preponderance of evidence means, hear some cases of false accusations (or true accusations where a genuine misunderstanding over consent occurred), and brush up a bit on due process and history like I am doing right now, then I have trouble believing that most of them would support these policies in their current form.

    As liberals, most feminists had no trouble understanding the problems with the Bush Administration’s PATRIOT ACT, and its dangers of eroding free speech and due process. Yet if feminists wouldn’t want to sell out free speech and due process to protect us from the terrorists, why would they want to sell out free speech and due process to protect us from the rapists and harassers?

    Something isn’t right, here. The problem is that particular feminist leaders have manipulated their flocks into supporting profoundly illiberal policies that they wouldn’t support in any other area of politics. To help feminists realize this, we need to show them how the zeal of those leaders turns them into loose cannons who will shoot women in the foot (in addition to men) to advance their paternalistic agenda.

  6. Clarence says:

    “Ignorance” of the Jezebel piece, Hugh? Is that what you call it? Read the sentence on how it’s a good thing that a “potential rapist” can’t cross examine his “victim”, and get back to me.

    That post is basically a propoganda screed, and nothing else. Compare it to the False Rape Societies piece and it looks amateurish. Compare it to yours and it looks downright childlike in terms of argumentation and facts presented.

    And really, basing your argument on “well this injustice will hurt women too!” strikes me as morally wrong and useless to boot. I’ve tried to point out to feminist commenters before that this or that policy is potentially counterproductive, threatens everyone else’s rights, might not be good for genuine rape or sexual assault survivors and even mentioned the risk of backlash, and its never made a darn lick of difference.

    As a documentary I’ve recently seen about Sweden’s largest sexual assault organization, ROK, shows, the people in charge of these things are usually willing to make sacrifices, even of other women. If you aren’t the “right type” of victim, if you want your abuser to get treatment or otherwise don’t fit their script they want nothing to do with you as a woman. The people promulgating this policy are like Thomas at the Yes Means Yes blog: they are convinced that very few men will be falsely accused and those few are acceptable sacrifices, so they don’t care about innocent men whatsoever. As for victims who don’t want to file charges or want to keep their options open (in case they decide to later), and women who are falsely accused, I’m willing to bet they could care less. This will only be repealed if there is some sort of scandal or if the outcry is loud enough from parents and student groups. The only other chance is a SCOTUS decision, said decision will probably take from 5 to 10 years to come down the pipe if the past is any indication.

  7. Cactuar says:

    My own experience with college “justice” is still close enough in memory that I still seethe a bit thinking about it. Final year of my degree, some of my harassers got it into their heads that it would be just grand to harass me further by reporting me to the school justice system on a completely fabricated charge of (physical) assault/intimidation among other things.

    It was all there; Secret evidence, secret accusers, no advocate. They wouldn’t even tell me the time and place the alleged incident (which was never described to me) was supposed to have occurred. It was clear from the start that no one had any interest in hearing my side of things.

    I may have differences with MRAs about the merits of the current system, but if there is a fix, this is absolutely not it. I can’t see any good coming out of this that would not be overpowered by the detrimental effects. I honestly don’t know what those people are thinking…giving that kind of latitude with the (already quite lacking, I assure you) evidenciary standards of the college hearing, mandating that one should not be able to face one’s accuser, and hanging the guaranteed threat of an investigation over victims who aren’t ready.

    Forget giving these people any more power to abuse. In my opinion if we’re going to do anything with the college justice system, we should take a good long look at the problems, raze the entire thing and start from scratch.

  8. Catalogue says:

    Hugh

    It would seem more tactically sound to recruit as many fair minded people as possible from the non feminist sector to attack this small group of women and their policies than it would be to embark on a mission to educate and convert average feminists that are manipulated by and protect these women and their policies. We have decades of reasoning and showing stats and studies to average feminists, they are notoriously resistant to reason and facts and all we have to show for it is denial and snark.
    I think that this popular idea that there is some answer to be had from having discussions with average feminists is incorrect. For example, when we go after the Catholic Church for its crimes, sitting down to discuss it with the congregation is not the way we go about it.

  9. Jim says:

    Cactuar, what a horrifying story. What I do not understand is how universities get to exerciswe this kind of adjudicatory power at all. These are criminal matters and they belong in criminal courts and nowhere else, with all the legal protections citizens have by right. In your case the affair would never have gotten anywhere near a court.

    “And really, basing your argument on “well this injustice will hurt women too!” strikes me as morally wrong and useless to boot. ”

    Indeed. “What About the wimminz”.Women do not have to be the victims of soemthing before it becomes a bad thing. Hugh, you’re not a white knight; how did this one slip in?

  10. Schala says:

    “What I do not understand is how universities get to exerciswe this kind of adjudicatory power at all. ”

    As far as my boyfriend knows (and he has been to uni), this doesn’t exist here. He went pretty much WTF when I mentioned it to him yesterday. Not understanding how or why those kangaroo courts existed at all.

  11. Copyleft says:

    The presumption of guilt seems surprisingly popular and common when it comes to sexual-assault issues… and not just among feminists (though they embrace it as well).

    I’m reminded of the recent news stories about Dominique Strauss-Khan, where charges against him were dismissed because of the plaintiff’s proven dishonesty. How is he mentioned on feminist blogs? “Another rapist has gotten away with it.”

    Likewise, the “Megan’s Law” principle has a built-in assumption that anyone convicted of a sexual offense is automatically 1) a child molestor, 2) incurable, and 3) not entitled to rejoin society even after serving their sentence. The supporting logic for this is scarce to nonexistent.

    Evidence? We don’t need no stinkin’ evidence….

  12. JM says:

    Not that I agree with it, but I would think that the reasoning advanced would be that universities, like corporations, are not bound by the Constitution. They are bound by laws, which are supposedly bound by the Constitution… though this seems to be less true in practice every year, as evidenced here and elsewhere.

    The cynical side of me sees this as another attempt to usurp state or state-like power without the corresponding restrictions on that power given by the Constitution. To command public financial, legal, and social capital with private impunity.

  13. Hugh Ristik says:

    Clarence,

    “Ignorance” of the Jezebel piece, Hugh? Is that what you call it? Read the sentence on how it’s a good thing that a “potential rapist” can’t cross examine his “victim”, and get back to me.

    I would need a full post to explain everything that’s wrong with the Jezebel piece. I didn’t want to tempt myself to get started in the comment, because I was running late for a date. The reason I used the word “ignorant” is because I feel that if the hacks at Jezebel understood the underlying issues of the article they were criticizing (preponderance of evidence, due process), there is a good chance that they wouldn’t support what’s going on. If they had run into Aspasia’s tale of serving on disciplinary panels that I quote above, or Cactuar’s comment, the AAUP letters, or even FIRE’s rigorous writeup, I wonder if their response had been different, and they would have actually been able to learn something before their brains shut down in defensiveness.

    And really, basing your argument on “well this injustice will hurt women too!” strikes me as morally wrong and useless to boot.

    If I was making the issue all about women, then sure. Yet I was very careful to state in my original post:

    In my view, the primary harm of the OCR letter is its sacrifice of the free speech and due process rights of the accused, who are most likely to be men. Yet is so single-minded that it even risks harming female survivors, the very people it’s supposed to protect.

    Since it’s true that erosion of due process and free speech with also hurt people who are female, it’s absolutely relevant to this article, even if we expect the most common victims of these policies to be men. Heck, female professors are standing up and asking to get it repealed. And if making that point helps convince a few feminists or fence-sitters, then that’s a plus.

    Jim, still think I’m White-Knighting?

    Catalogue,

    It would seem more tactically sound to recruit as many fair minded people as possible from the non feminist sector to attack this small group of women and their policies than it would be to embark on a mission to educate and convert average feminists that are manipulated by and protect these women and their policies.

    Maybe. But if I can try to appeal to both groups at the same time, then I will.

    We have decades of reasoning and showing stats and studies to average feminists, they are notoriously resistant to reason and facts and all we have to show for it is denial and snark.

    That depends on who the “average feminist” is. The average feminist, the average feminist who reads the internet, the average feminist who posts on the internet, and the average feminist you might have a debate with on the internet, are all different people. My view is the average feminist is much less ideological than the sort of feminists who post on the internet, particularly the sorts of feminists that we might get into debates with.

    For feminists like some of the ones at NSWATM, I do think there is a benefit to presenting reason and facts. I wrote my piece to potentially be convincing to that sort of feminist. I also wrote it so that you could cite it in a debate, and even if you couldn’t change the mind of the person you were debating, it at least would be hard to twist into something misogynistic. Furthermore, I tried to preemptively shut down the “what about the wimminz” question by answering it.

  14. Hugh Ristik says:

    Cactuar,

    It was all there; Secret evidence, secret accusers, no advocate. They wouldn’t even tell me the time and place the alleged incident (which was never described to me) was supposed to have occurred. It was clear from the start that no one had any interest in hearing my side of things.

    Wow, I’m sorry to hear your story. Would you be OK if I quote your comment in future posts I do on this topic?

    Jim,

    What I do not understand is how universities get to exerciswe this kind of adjudicatory power at all. These are criminal matters and they belong in criminal courts and nowhere else, with all the legal protections citizens have by right. In your case the affair would never have gotten anywhere near a court.

    The argument is that the police are insufficient, because (a) some survivors don’t want to go to the police, (b) the behavior has to be egregious before the legal system can do anything about it, and (c) the offense has to be shown beyond a reasonable doubt in court.

    Let’s take an event where it wasn’t obvious beyond a reasonable doubt that a crime had occurred, but it seemed very probable (say, 90%). The college might want to suspend/expel the accused. Should the college be able to do so? At least in principle, there might be cases where it isn’t justifiable to prosecute or jail the accused, but it is justifiable to expel or suspend them. If you buy this argument, or you agree that private universities have a right to suspend/expel based on the sexual conduct of their students, then you might support judicial panels to evaluate complaints of sexual misconduct, and punish the accused student if appropriate… in principle.

    In practice, the reality is a lot messier, because college judicial panels are by people with no training (or with ideological training from the campus anti-abuse center, which often seem to be second-wave feminist front groups based on the example of Stanford, cited in my original post). The CPI report talks about rampant bias against complainants.

    Of course, it’s not a representative sample. Just because some tribunals are hostile towards complainants, it doesn’t mean that other tribunals aren’t hostile towards the accused.

    My theory is that universities will be either overly lax about investigating complaints, or overly punitive, depending on (a) the people who happen to be on the panel, (b) what happens to protect the college from bad PR or legal liability, and (c) how OCR sets the rules.

    The question is whether throwing some genuine harassers and molesters out of colleges is worth the expense and miscarriages of justice (in either direction) that seem to be common when badly trained disciplinary tribunals get into people’s bedrooms rather than sticking to judging library fines.

  15. Adiabat says:

    Copyleft: “I’m reminded of the recent news stories about Dominique Strauss-Khan, where charges against him were dismissed because of the plaintiff’s proven dishonesty. How is he mentioned on feminist blogs? “Another rapist has gotten away with it.””

    I wonder if this makes those feminists False Rape Accusers. I believe limiting the term to just those people who claim to be the victim is seriously underestimating the perpetrators of this crime.

    Imagine a scenario where, to avoid taunts from friends for sleeping with someone (because he’s a bit scummy for example), they tell their friends that they didn’t really want to (didn’t consent) but claims she was drunk when she wasn’t. The friend then goes to the police. The friend is accusing a man of rape when she doesn’t *know* that he is one. I would argue that she is a false rape accuser, along with the victim and anyone else who passes the story on without allowing for the possibility that it isn’t true. They are claiming that they have knowledge of someone’s guilt when they don’t.

    The same principle applies to all these feminists you mention. They are all False Rape Accusers (and don’t get me started on them promoting a “False Rape Culture” :) ).

    I dunno, it’s just a thought I had. What do you all think? Surely anyone who claims that someone is a rapist when they don’t know it’s true is a False Rape Accuser?

  16. Catalogue says:

    Hugh

    By average feminist I meant the manipulated masses that you were talking about in your piece, the ones that approve of the presumption of male guilt and the erosion of civil rights, for men. Anyway, I feel I should have thanked you earlier for writing this piece, and I’m taking it from the lack of responses from feminists here, that it has caused some processes to run, obviously there is going to be genuine approval of these sort measures too. The promise of having the power to just banish people and end their career and life as they know it, must be intoxicating to some.

    Adiabat

    I would extend on that. I’m of the attitude that large tracts of feminism and the feminist industrial complex are rooted in and dependent on false accusations of and about rape and abuse and for any MRA, false accusations of and about rape and abuse are a daily occurrence, either directly or in directly with the mrm is a woman hating abusers lobby stereotyping.

  17. dungone says:

    @Hugh,

    The argument is that the police are insufficient, because (a) some survivors don’t want to go to the police, (b) the behavior has to be egregious before the legal system can do anything about it, and (c) the offense has to be shown beyond a reasonable doubt in court.

    FWIW, my university actually ran the police. That didn’t stop them from handing out extrajudicial punishment for whatever they saw fit. There’s a lot of pressures on universities to have these policies, but the one thing I’m willing to wager on is that the best interests of the student body is not one of them and neither is academic life.

  18. Jim says:

    “The argument is that the police are insufficient, because (a) some survivors don’t want to go to the police, (b) the behavior has to be egregious before the legal system can do anything about it, and (c) the offense has to be shown beyond a reasonable doubt in court.”

    That’s the usual argument for vigilante justice. It is not very solid or compelling, is it? Basically each of thiose objections is to the function of normal constitutional protections and guarantees.

    This kind of legal separatism puts these universities on a level with the anti-government Sovereign Citizens kooks who want to set up their own court systems. And as a historical matter it is a relic of “benefit of clergy” form a time when universites were ecclesiastical foundations and that doesn’t refelct much better on them.

  19. Clarence says:

    Jim:
    Not to get off topic much here, but I live in Baltimore city.
    In Baltimore city, not only is it impossible to get a concealed carry permit, but you also are not allowed use of pepper spray or tasers. Police protection in large parts of the city is an absolute joke.

    Under such circumstances you are damn right I will sometimes approve of Vigilante justice. People have a fundamental right to defend themselves and when the police can’t or won’t do it, and won’t let you legally do it, then somethings gotta give.

    That’s not to compare situations on Baltimore’s streets with the safety of a typical university, but I simply wanted to say that with power comes responsibility and if an institution is not protecting its people you are going to have to expect vigilantism as a matter of course. The campus groups that pushed this have been very successful in making use of fear to get these policies passed.

  20. Jim says:

    Clarence, first off – I agree totally with your first point. Second, I don’t agree that the situation in the universities has reached the level of lawlesness you are describing in B-more.

    Schools in general seem to have a sense of being sanctuaries from the polcie and the courts, even at the secondary level. Here near Seattle we had a HS principal objecting to police conducting an investigation in her high school as if the matter was something she had the authority to resolve herself. Becoming a petty tyrant is an ocupational hazard of teaching and maybe that played into it.

    Whatever – these are either government entities who are bound ot abide by Constitutional principles or else they are private insitutions at which students have property rights to the education they have paid for, so either way these kanagroo courts expose the universities to various adverse actions.

    And something both the university adminstrators and the complainants should remember about vigilanteism – two can play that game.

  21. Cactuar says:

    Wow, I’m sorry to hear your story. Would you be OK if I quote your comment in future posts I do on this topic?

    Certainly, I don’t mind at all.

    The argument is that the police are insufficient, because (a) some survivors don’t want to go to the police, (b) the behavior has to be egregious before the legal system can do anything about it, and (c) the offense has to be shown beyond a reasonable doubt in court.

    I’m actually in principle, pretty sympathetic to the need to deal with offenses against other students on a lower level than police involvement due to arguments (b) and (c) there, however–and it is a massive however– there is just too large a gap between ‘how the system ought to work in theory’ and ‘how the system actually works in reality.’

    And forgetting for a second the completely broken and unfair procedural rules, there’s an important element that none of these people ever seem to consider: the automatic social bias you’re going to get on campus— and those who are outside the social norm and more susceptible to bullying in the first place will be the most vulnerable.

    The students on the panel that judged me didn’t live in some sort of bubble. To them, it wasn’t “innocent until proven guilty” it was “hey, did you hear? that freaky girl is also violent, it turns out.” I tentatively assume the same would likely work in reverse, more automatic sympathy for people perceived as popular or socially desirable.

    Which, is why, even supposing they eliminate the kangaroo-court procedures, I couldn’t really feel safe trusting a student panel, the members of which are intimately involved in the campus social game, and subject to peer-pressure on both the micro (with their fellow panelists) and macro (on campus in general) level, to come to any kind of impartial judgement about a fellow student or understand that “hey, did you hear?” doesn’t constitute actual evidence of anything. It’s simply too much to ask or expect.

  22. Jim says:

    “I’m actually in principle, pretty sympathetic to the need to deal with offenses against other students on a lower level than police involvement due to arguments (b) ”

    The issue is the severity of the penalties these boards can impose. Aboard can sit as much as it likes and secide whatever it likes as long as none of it has nay consequences. That’s not what we are talking about here. we are talking about a body with the body to interfere substantially with someone’s education and educational opportunities. No one can deny that this is a matter of some pretty fundamental civil rights. That’s when Constitutional protections come into play.

  23. Cactuar says:

    The issue is the severity of the penalties these boards can impose…

    And the crazy, rights-violating methods they use, that’s a pretty big issue, too.

    I agree 100% that this is not the way to do things, I just understand the need to try and implement lower-than-criminal-level consequences for bad behavior within an organization. (Something which will never work the way these boards are set up).

    I don’t think the boards should be handling issues like rape. Hell, as they are, I don’t think they should be handling any issue. There is a problem, but it’s absolutely wrong what’s happening here, it should stop, and we need a new solution that doesn’t trample people’s liberties.

  24. dungone says:

    To follow up on what Jim said, the basic point is that a student who has already invested tens of thousands of dollars in their education should not be thrown out of their school based on an extrajudicial panel. This isn’t elementary school where you get suspended for a couple of days for fighting in the schoolyard; college students have a right to be treated as adults with full civil rights.

    As far as I can tell, the average worker has rights to their job and can sue their employer for improperly firing them. But higher education is treated as if it were a privilege that can be revoked at the discretion of the very people that students pay for the educational services. It’s a very ugly combination of anti-intellectualism, paternalism, and socialization that gets imposed on youths.

  25. Jim says:

    “As far as I can tell, the average worker has rights to their job and can sue their employer for improperly firing them.’

    Yes, they have a property right to what the time and opportunity cost they have invested in that job, and that applies to an education too besides whatever actual money a student has paid.

  26. Pat Kibbon says:

    In the U.S., college admission is a contractual arrangement between the student and the instution, the terms of which all parties are presumed to have agreed to voluntarily. The terms of the contract are binding on both parties. The terms specify which behaviors are expellable offenses and describe how accusations against a student shall be adudicated under the contract.

  27. dungone says:

    Pat, you’re completely right. That’s why degree requirements are often different depending on which year a student entered the program, since schools will honor that contract. But students have no way of really knowing how these extrajudicial panels work in practice when they enroll in the school. And this policy change applies to all students at all schools that receive federal funding – it does not honor existing contracts. So what we have here is a “contract” that lacks mutual assent and mutual obligation. That’s not really a contract. Quite honestly, any contract where a man would agree to the possibility of losing years of his life, future career and educational opportunities, and tens of thousands of dollars at the discretion of the school in the manner spelled out by this new policy is unconscionable. No one in their right mind would agree to that sort of contract unless they severely lacked bargaining power. And that’s exactly what happened here.

  28. ballgame says:

    Good points, dungone.

  29. Develpers^3 says:

    One of the other problems with dealing with these accusations in internal universal judicial systems is that it creates the temptation amongst certain university officials to use it as an easier, quieter version of the police and courts. I can easily imagine a case where a victim who wishes to push real, honest-to-goodness criminal charges against someone, is instead pressured to into taking the quiet route. After all, the last thing most university officials want to see is “Sexual Assault at $university_name” in the local newspaper.

  30. ballgame says:

    Welcome to the blog, Develpers^3. Interesting point.

  31. Jim says:

    Developrs, you aree right; this kangaroo court can just as easily harm the victim as the accused. That’s what you get with all this extrajudicial kind of thing. It all smells like what they really care about is hushing things up – the crime or non-crime, their unconstitutional punitive actions, all this unpleasantness – they just want it all to go away.

  32. Reme Archet says:

    Sorry, but this story is a little old.

    This kind of thing has been in place unofficially in many campuses for years. This just gives it an official ‘spin’.

    The simple answer is already available. I and many of my peers have been using it for years; you simply record, convertly, every single minute of every single day that you are likely to come into contact with a female.

    The days of ‘he said, she said’ are gone. Conviction on the balance of probability by weighted and biased juries in campuses will find such behaviour employed in the criminal arena, as the nature of the legal process switches to the emphasis on allegation rather than evidence (oh hang on, that’s already happening).

    I carry a pen camera with enough on-board memory. It records each and every conversaion and interaction I have with any female (or male for that matter). Although I have not personally benefitted I have one colleague who after been accused of harassment, used his pen camera footage to good effect; a $10k out-of-court settlement with the university and a written apology.

    The technology is in place and is cheap and reliable. No male, indeed no female should be without a pen camera, but they benefit males far more. The feminist lobby are indirectly encouaging their employment and we males should be giving-in to this initiative. The nature of human evolution is to respond to each new threat as it appears, and technology provides a perfectly valid response to this one.

  33. ballgame says:

    I carry a pen camera with enough on-board memory. It records each and every conversaion and interaction I have …

    I’m not familiar with the technology, Reme Archet, but the way you phrase it here implies you’re recording audio as well as visuals. If you record audio without the other person’s consent, you’re committing a pretty serious crime in many states. (It may even be a federal offense, for all I know.)

    Otherwise, it’s an intriguing idea.

  34. Jim says:

    “What I love are those little simulated apartments and rooms they have, cramming a whole lifestyle into a space that’d make a Tokyo resident say “Well this is… cozy…”

    I happen to know about this. It is a crime in some but not many states. It is not a federal crime.

  35. ballgame says:

    Uh, Jim? I think you transposed more than a letter or two in that quote!

    :-)

  36. Jim says:

    Ya think!

    Here you go:
    “If you record audio without the other person’s consent, you’re committing a pretty serious crime in many states. (It may even be a federal offense, for all I know.)”

  37. Stevendev says:

    Great post. I especially found it useful where you stated that this will harm the accuser and the accused.

  38. pocketjacks says:

    “In the U.S., college admission is a contractual arrangement between the student and the instution, the terms of which all parties are presumed to have agreed to voluntarily. The terms of the contract are binding on both parties. The terms specify which behaviors are expellable offenses and describe how accusations against a student shall be adudicated under the contract.”

    Not every contract is enforceable in court. “You agree to let us subject you to kangaroo courts” would get thrown out, signature or no.

  39. Howard G says:

    Well, so much for this Dear Colleague Letter being deemed illegal. Now it is part of the revised VAWA bill. And this is the new law of the land. Any sexual assault occurring at a university must be judged by preponderance of evidence. It is only a matter of time I assure you that this will be the sexual assault law for all rapists in this country. Guilty unless you can prove you didn’t do it or she consented. Feminists are pushing and getting everything they want. Eventually we will have the Sweden law- guilt upon accusation.

  40. Howard G says:

    The proposed bill includes preponderance of evidence for any domestic violence, sexual assault, dating violence,or stalking accusation. There is still time to call your representatives to get this removed. Though good luck.
    202-224-3121

    (iv) Procedures for on-campus institutional disciplinary action in cases of
    alleged domestic violence, dating violence, sexual assault, or stalking,
    which shall include a clear statement that—
    (I) such proceedings shall—
    (aa) provide a prompt and equitable investigation and
    resolution;
    (bb) be conducted by officials who receive annual training
    on the issues related to domestic violence, dating violence,
    sexual assault, and stalking and how to conduct an
    investigation and hearing process that protects the safety of
    victims and promotes accountability;
    (cc) apply the standard of proof recommended by the most
    recent Guidance issued by the Department of Education’s
    Office for Civil Rights;

  41. [...] The oppressor is now oppressed. That’s a troubling notion, when in real politics, so many feminist-led efforts to fight oppression against women turn into oppression towards men, like the new sexual assault policies on college campuses. [...]

  42. [...] The oppressor is now oppressed. That’s a troubling notion, when in real politics, so many feminist-led efforts to fight oppression against women turn into oppression towards men, like the new sexual assault policies on college campuses. [...]

  43. Tamen says:

    Would the last link-back make this blog a feminist blog according to Daran’s definition of feminist? :)

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