May 8, 2020

Title IX

“Education Secretary Betsy DeVos on Wednesday issued a new policy that will reshape the way schools and universities respond to complaints of sexual misconduct, bolstering the rights of the accused and narrowing the scope of cases colleges are required to investigate.”
AP News

Highlights of the new regulations:

Sexual harassment has been defined as sexual assault, dating violence, domestic violence, stalking, or unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity

Both parties may have their representative (such as a lawyer) cross-examine the other; parties may not themselves cross-examine each other

Colleges may choose between the preponderance of the evidence (more likely than not), or the clear and convincing standard of proof

Department of Education

See past issues

From the Left

The left opposes the new regulations.

“Experts in sexual violence have amassed considerable evidence that cross-examination in a live hearing can re-traumatize survivors and further deter survivors from reporting sexual misconduct. Research has also shown that aggressive, adversarial questioning is a poor tool for assessing the truth in cases of sexual violence… [There are] innovations that balance the rights and interests of both parties…

“The best of these procedures rely on the expertise and specialized training of investigators who understand the trauma of sexual violence. Questions are funneled through an impartial intermediary who has the capacity to omit impermissible questions or revise a question’s format. Students have the opportunity to contest findings, and both parties have the right to appeal… If there are ways to investigate and resolve complaints that are better at establishing fact and that prevent the re-traumatization likely with cross-examination, schools have the responsibility under Title IX to create such procedures. The Education Department regulations deprive schools of the capacity to innovate those solutions.”
Sandra R. Levitsky, Elizabeth A. Armstrong and Kamaria Porter, Washington Post

“‘Title IX was enacted to ensure that sex discrimination, including sexual harassment, would never be the end of anyone’s education,’ [Shiwali Patel, the director of Justice for Student Survivors and senior counsel at the National Women’s Law Center] told Vox. But the change to the definition of harassment could mean that students would not have grounds for a complaint until they were essentially being driven out of a class or school because of it. ‘It shouldn’t rise to that level before a school would have to take any action,’ Patel said.”
Anna North, Vox

Dated but relevant: “[Another] big change limits the department to holding schools accountable only when they are ‘deliberately indifferent’ to sexual harassment. That’s great news for schools’ lawyers and terrible news for students…

“Consider the case of Jane Doe, a ninth grader who was raped by her classmate, then taunted mercilessly by him and his friends. The school’s sole response was to tell her to drop out and enroll in an ‘alternative’ school for poor-performing students. When the student sued, a judge held that the school’s response wasn’t bad enough to hold it liable under a deliberate-indifference standard. Though school employees ‘could also have attempted to discipline the harassers,’ the judge wrote, the decision to offer her a choice at an alternative school ‘does not render them deliberately indifferent’ to her plight.”
Dana Bolger, New York Times

“‘Among its many radical and unjust provisions, the rule requires schools to single out sexual harassment and assault reports for unique skepticism and separate, onerous procedures, making it harder for survivors to come forward and access the support they need,’ said Alexandra Brodsky, a civil rights attorney at Public Justice…

“‘We certainly agree that schools should have fair processes in place that meet the needs of complainants and respondents,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center. “The core concern that we have is that the set of rules promulgated here treat complaints of sexual harassment and sexual assault as somehow uniquely untrustworthy—as somehow uniquely requiring the quasi-criminal procedures that are not required for any other sort of school investigation of student or faculty misconduct.’”
Madison Pauly, Mother Jones

From the Right

The right supports the new regulations.

“The changes coming might seem radical — if you were living in, say, pre-Magna Carta serfdom or under the jurisdiction of a particularly officious agent of the Spanish Inquisition. For 21st-century Americans, the right to question witnesses and accusers and to have an opportunity to evaluate the evidence presented against you should be the most obvious and unobjectionable thing in the world, but it isn’t — not on college campuses. And so thanks are due to Betsy DeVos…

“But there is the deeper question of why campus proceedings are appropriate at all to handle matters of sexual assault… Sexual assault is not a matter of the campus honor code — it is a question of serious criminal misconduct. Where police departments and prosecutors are negligent or incompetent, as they sometimes show themselves to be in these matters, then that is an occasion for reforming the police departments and prosecutors’ offices — not for handing over law-enforcement duties to professors and college administrators.”
The Editors, National Review

“The most recent survey of due process protections at U.S. News’s top 53 national universities by the Foundation for Individual Rights in Education determined that 72% of them—including Georgetown and Caltech—didn’t explicitly tell accused students that they are presumed innocent until proven guilty. The new rules will correct this abuse… More than 40% of top colleges don’t even specify that their equivalents of judges and juries must be impartial. This madness will end when the rules take effect…

“The department relies on the Supreme Court’s standard from Davis v. Monroe County Board of Education (1999) to advance a fair definition of student-on-student sexual harassment… This is a substantial improvement over the current patchwork of rules, which invite censorship of speech or behavior that is both constitutionally protected and not harassment. In Title IX’s name, colleges over the years have banned what they characterize as ‘derogatory cartoons,’ ‘innuendo’ and ‘sexually suggestive statues.’ Students and professors’ political, academic and artistic speech deserves protection.”
Robert Shibley, Wall Street Journal

“The previous Obama-era rules placed heavy financial incentives on colleges and universities to set up systems that shifted the burden of proof from accuser to the accused… Hundreds if not thousands of college students had their reputations ruined in kangaroo courts without any benefit of due process, or in many cases even an ability to present evidence on their own behalf or question witnesses. It’s a system more similar to the witch trials in Salem than traditional American jurisprudence…

“The Democrats standing behind Biden in the Reade allegation insist that Biden’s denial is all that’s necessary to dispense with Reade’s allegations. That wouldn’t be sufficient even under Betsy DeVos’ new Title IX parameters; under the Obama/Biden standard, it would be tantamount to a guilty plea. Will those Democrats — like Elizabeth Warren, Gretchen Whitmer, Kamala Harris, and others — embrace DeVos’ move back to due process to reconcile their defense of Biden?”
Ed Morrissey, Hot Air

“It would certainly be helpful if Democrats who are denouncing DeVos’s campus-sexual-assault policies would explain which rules they object to, and why. Are they opposed to schools allowing hearings in which lawyers and advocates from both sides can ask questions? Are they opposed to the accused having access to evidence related to the charges filed against them (sans medical records)?...

“The Obama guidelines allowed accusers to appeal ‘not guilty’ verdicts but did not guarantee the same right for the accused. Rather, it permitted penalties to be handed out before investigations were even conducted. And those who conducted the investigation, often a single untrained employee, were empowered to be both judge and jury. Adjudicators will now be trained, and the training material they use will be published on the school’s website to offer transparency…

“There is no legitimate concept of justice in which the presumption of innocence is an ‘added protection.’ It is the foundational protection. The Obama administration deprived students of it, and the Trump administration reinstated it.”
David Harsanyi, National Review

On the bright side...

Sciuridaes is a project capturing anthropomorphic videos of little beasts in my backyard.
Carnegie Mellon University