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Post by robeiae on Sept 5, 2018 14:08:57 GMT -5
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Post by Optimus on Sept 5, 2018 14:59:53 GMT -5
The Guardian's biased-as-shit take doesn't surprise me in the least. I love how they characterize "ensuring due process" as "[tipping] the scales in favor of the accused and make it harder for those who say they were victimized to get justice."
You know someone's totally lost the plot when they construe efforts to make a semi-legal proceeding more fair to be tantamount to siding with rapists.
This is pretty much the only thing DeVos (or anyone in Trump's administration) has done that I've mostly agreed with, at least in principle. The histrionic mouth-frothing and head-spinning some on the far left are doing over this is ridiculous.
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Post by Vince524 on Sept 8, 2018 16:17:44 GMT -5
As everyone here probably knows, I've followed the college Title IX thing for a while. Been researching for a book I'm plotting. Talked to several people on both sides. The rules were most likely leaked as a test balloon. The idea that colleges have to insure a fair process is somehow throwing rape victims under the bus in a system where a college might suspend an autistic student for a year for a consensual fist bump because you insist the process must be fair is ridiculous. If you look at every bad ruling, not just questionable ones where students are expelled unfairly, but also not responsible findings of people like Larry Nassar, they often come down to the same issues. Secret tribunals, that don't have any checks or balances, or transparency, run by school administrators that are looking out for the schools only, not the students. Many colleges have gone to single investigator model, and more and more, courts are ruling those are inherently unfair. Basically, 1 person interviews who they deem to, often not interviewing all witnesses. The participants don't get to know what was asked of the other, have no right to see the evidence, or in some cases, know the charges. One student was expelled because he came in prepared to prove that the sex was consensual, but the complaint was that right after the sex, he touched her breast without affirmative consent, and therefore she was upset. Skidmore college, right near me, expelled a student for forced oral sex, but he didn't know until the hearing that she was claiming that. One of the new proposed new OCR rules would be that colleges can't keep their training material hidden, as many colleges have training that make favor one side or the other. Yale is under fire for that under a long going lawsuit, and Ole Miss had to release their training. Many will say a victim who consistently tells the same story, or changes major details, or even is caught lying, that's all a part of the trauma of being raped, and therefore increases their credibility. A school once ruled that witnesses who didn't show up for the hearing should have what they said in the report assumed to be true. There are cases where it was a stranger, and the evidence would heavily suggest, (Forensic, DNA, Video) that they got the wrong person, but the school won't care and you have to litigate to clear your record. Which brings up the point that due process shouldn't just apply to those who can afford costly lawsuits. A recent one from James Madison ended with the student being awarded nearly a million in court costs. He'd been cleared in the initial hearing when her own roommate said she was lying because he was with someone else. She appealed and an appeal panel heard 3 pieces of new information, the most damning was a voicemail where she slurred her words. They said she was clearly too drunk too consent. He wasn't given a chance to review any of this, they just expelled him on appeal. They never noticed the voice mail wasn't left on the night of the incident. (Which can be used to argue that she was being untruthful) When this was pointed out, instead of admitting their mistake, they fought. And when it was clear they were losing, they said they should be allowed a 3rd hearing. The thing about the new rules is, they won't really matter much if they don't have transparency and severer consequences for being broken. Yale has admitted they destroy all materials in a hearing afterwards specifically because they knew some students suspended or expelled would use that to sue. They need to be rewritten, but they have to do it fairly. I'm not 100% confident in Betsey Devos's ability to be fair. But at least she's trying.
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Post by Vince524 on Sept 15, 2018 19:34:43 GMT -5
Here's a little more insight into the new rules. reason.com/blog/2018/09/14/title-ix-devos-harassment-new-rulesAs I understand from my conversations with people who study this, one of the biggies is the fact that training must be unbiased and not based on stereotypes, and the school must provided to an accused student. Schools have routinely fought to keep their training a secret, even during a lawsuit and it's never gone well for them when the training material has been made public. The college must also in writing provide an accused student with: Identify specific polices alleged to have been broken. (This would be to avoid cases where the student isn't told the key part of what they were alleged to have done isn't revealed until the hearing, or that in the hearing, the accused disproves what was alleged, so they make up a new charge on the spot. All of which have been done.) Notifications of interview, procedures, investigative steps, etc that helped them reach the determination. (This is to avoid where they say they spoke to all witnesses, but they only spoke to witness from the accuser, not the witnesses suggested from the accused, some of whom may give eye witness testimony. Or that the investigator was told of text messages that would disprove the allegation, but they make no attempt to get them even though they would easily be attainable because they don't see their job as gathering exculpatory evidence. That happened the Amherst case.) Findings of fact supporting the outcome. (If I understand, that's to stop judgements of a he said/she said where they decide he must be a rapist because she said so, but no other evidence exists.) Although schools can continue to use the preponderance of evidence standard,they can use the higher clear and convincing standard. It also points out that while civil cases use the lower standard, there are due process protections that aren't available in a college case such as being under oath, and forced discovery. (For example, either party can refuse to give phone records.) However, they must use the same standard as they use for everything else (Cheating or plagiarism)and it must use the same standard for faculty. (My guess is that they will lower the standard for others.) Cross examination doesn't have to be direct (Despite what many are saying)but colleges need to allow something. (IMHO, they should allow either the students lawyer or an advocate to pose the questions, but record it. Many schools now use a single investigator model where the students can submit questions. A recent case, the college argues this was an effective substitute, but the court disagreed since the college never actually asked the questions. Often, the student, either accussed or accuser, have any way of knowing what questions the other was asked, or how it was asked. Sometimes they change the nature of the question.) Requirement for open discovery. (As KC Johnson points out, this recalls a case where the college was forced to turn over witness statements that led the college to 1 out of the 2 accusations was not credible.) That they have to let the accused know the charges in advance, before their questioned and be given sufficient time to prepare for any interviews. (So no more pulling a student out of bed in the middle of the night, telling him not to call his parents and questioning him for hours without him even knowing what he's accused of) That the college can delay the proceeding for things like law enforcement investigations, or test results, but not for administrative reasons. (This comes from cases like Boston College which suspended a student without waiting for evidence such as forensic, polygraph and video which cleared the student and indicated the assault was committed by another student who had been promised immunity- They're still fighting clearing that students record even though he had to serve his suspension and has graduated. It also recalls a case where a young man was arrested but charges where dropped when eye witnesses, video and dna proved it was someone else and he had to beg other colleges to take him. It should also prevent cases where the school has no evidence, such as (I think it was Amherst again) The accusers statement was that she initiated oral sex on someone, but then felt uncomfortable and even though the male didn't force her to stay, she just felt bad in leaving) The school kept the 'investigation' going for months, keeping him on restriction and under stress until he reached out to a college group for legal help and mentioned her name, and that was enough to expel him, but they found him not responsible at the same time for the original accusation. This is fairly common, but hard to litigate over as it usually involves male students sending a text to leave him alone after multiple moments of harassment. Another case that comes to mind is an early one where the school and police looked at the same evidence. The school decided it was rape and expelled him, the police issued a warrant for her arrest for filing a false police report. She fled the jurisdiction and the school insisted it was irrelevant since her lying wasn't proven.) It establishes that a student should be considered innocent until a determination is made that hes guilty. Most schools don't guarantee this and Uni of Cincinnati argued in court it didn't need to assume someone was innocent until proven guilty. The adjudicators be provided with due process training. Also they can't dismiss witness testimony because it doesn't match their conclusion, such as the witnesses being friends of either party. It also makes it clear that separating a student from their education based on an unfair investigation is itself a Title IX policy violation. This is important because many courts have ruled against students saying that even thought the school was unfair and most likely got it wrong, that isn't evidence that they got it wrong because of gender. Now, intentionally getting it wrong through an unfair process is a title ix violation from the school. It establishes that both parties have to be treated fairly. While the last regs mentioned due process but made it clear that due process shouldn't get in the way of the accusers rights. More will come out as they're parsed, but I'm not hearing of anything that is unfair.
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Post by Vince524 on Nov 2, 2018 13:09:37 GMT -5
As an FYI, KC Johnson on Twitter has reported that there's been a change to the new regulations. Colleges must allow some sort of cross examination. CA6 ruled not too long ago that universities must do this, but many continue to expel students without any live hearing. Some do an initial interview where the student first learns of the charges and then call that the hearing.
A new Lawsuit against Northern Michigan which has had repeated problems shows they are still ignoring this ruling.
Which means any students over the last year who were wrongly expelled or suspended yet can't afford the litigation fees are SOL.
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Post by Vince524 on Nov 8, 2018 7:28:31 GMT -5
Another case to help put into perspective. A student 'won' against his school. His accuser didn't go there, and admitted that she had never been struck by the accused, but he was on an interim suspension for 629 days. Needed a court order to return. Had his identify revealed on campus so he was harassed to leave. School put him on suspension without hearing his side of the story, and within 200 days only interviewed him once and made no further effort to get to the truth. Emotional toll is a state of depression.
The judge ordered the school pay $4,714.91 to cover his legal costs of nearly $465,000. Since the school reinstated him, without a guilty finding, his lawsuit was dismissed as moot. They're appealing. After all, this is a school that had another expulsion overturned because the school didn't show a shred of due process (Student was accused of assault when he slept next to another student, fully clothed after a night of drinking. 2 eye witnesses in the room said they thought she had a nightmare or something, but Doe didn't touch her. Told Doe student was on a drug that can induce night terrors day before hearing, but wouldn't allow him to introduce that to hearing because he didn't have an expert witness, since he had no time to get one) And another case of stalking where the school was told to have a new panel look at evidence, including evidence it suppressed. They issued the same finding word for word with an extra line of looking at the new evidence. They were held in contempt. That case may deal with a student guilty of the misconduct, but the school couldn't be bothered to do it right.
So my point here, is look at the price tag. How many students can afford to fight these things?
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Post by Vince524 on Nov 12, 2018 19:16:32 GMT -5
Here's a blog post from a lawyer Scott Greenfield, who has opined on the Title IX debacle. He and I have interacted through Twitter a few times, including 1 instance where he sent me a picture of a pineapple. (Don't ask.) The blog post is titled the problem with dick. That alone should catch your attention. I'm posting it so you might get an idea of what, once accused, you're up against. We're not always dealing with what would be considered actual rape in legal terms. The woman named Hannah mentioned in the blog is someone who will work to help students who have been expelled from one school attempt to get into another. As I understand from a few of the parents she's worked with, she's very expensive. It's her job often to convince a school that a guy who got expelled for the type of sexual violence described above doesn't pose a serious risk to their campus. A recent lawsuit also shows the inequity. A male student was accused of having sex with a girl too drunk to consent. He had a counter complaint that after he put shaving cream on her back while just out of the shower, she responded by punching him in the face and giving him a black eye, scratching him and drawing blood, and on another occasion, trying to pull his pants down because she thought he might have an STD. (He protested) A witness, her friend, told the school she had facetimed her before the sex and she showed no signs of intoxication, and and at the end, they were going to go have angry sex. She had last had alcohol 5 hours before. So had he, and they put off having sex because he was too drunk to perform. She admitted to punching him, scratching him, and trying to pull his pants down to see his penis against his objections. They expelled him 4 days before graduation. Nothing for her. Her friend was on the panel, but whatever.
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Post by Vince524 on Nov 16, 2018 18:05:11 GMT -5
www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdfSo the prepossessed new guidelines are out. A summary per Fire: One of the big things going around Twitter is the cross examination bit, complaining how unfair it is that a rape victim will have to answer questions from their rapist, but the rules actually prohibit direct cross from either party, but must use advocates. They also state that a school can use ether preponderance standard, or clear & convincing (Most likely they'll use the lower standard.) But the school must use the same for students and for faculty. The issue as has been explained to me is that some states have passed laws requiring the lower standard, but they have contracts with faculties that say the higher standard. I'm not sure how that would be solved, especially if there's a cross complaint situation between a student and professor. One issue is about lawyers. Students can use them, but for those who can't afford one, the school will provide the advocate. The issue there is 1 side might have the money to bring in a lawyer, and the other side is stuck with a French Lit professor. Not sure how to fix that either. Some smaller schools can't afford to hire a lawyer for everyone, complainant and respondent. I haven't read through the rules yet. But I've been following people who are knowledgeable and seeing snippets. I think the most striking thing to me is that most of these things are so basically simple that there should be no controversy. But there is.
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Post by celawson on Nov 16, 2018 18:38:58 GMT -5
Well of course there's controversy Vince. It's because Betsy DeVos! She's evil, don't you know? (Actually, the evidence points to exactly the opposite.) Therefore any changes to Title IX have to be evil, too.
There is a lot of disinformation being spread around right now - like you pointed out about cross examination. So many people are outraged that a rape victim would be cross-examined by her attacker, like this Tweet from Senator Joe Kennedy:
And this:
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Post by Vince524 on Nov 16, 2018 18:58:44 GMT -5
Yeah, I was on that tweet.
In all honesty, I can understand anyone's reluctance to sign onto anything to do with sexual assault that comes from a Trump Admin, and I'm not a huge Devos fan, but these new rules seem fair.
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Post by Vince524 on Nov 17, 2018 11:05:14 GMT -5
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Post by celawson on Nov 20, 2018 12:45:39 GMT -5
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Post by Vince524 on Nov 20, 2018 13:38:42 GMT -5
I've read some stuff from people who have reservations about the new rules that I take seriously. I've become twitter friends with S Daniel Carter (Friends meaning we've DM'ed and we follow each other) He was one of the authors of the DCL 11, and it's been his job to advocate for complainants, but he's a safety consultant now. He's been a vocal critique of the last OCR and how it handled it. very against the single investigator model which reduces the process down to 1 person interviewing who they want, (Sometimes that doesn't include the respondent) whatever witnesses they want, and giving them the power to decide what evidence is relevant. That's been an unmitigated disaster, but one you need a crap ton of money to overcome.
The big objections overall seem to be since this isn't a criminal investigation, due process doesn't apply, which has been ruled on 6 ways to Sunday. While you can't afford a student the same due process protections as you would in a criminal trial, it needs to have enough to cover the fact that you're taking away their ability to get an education as once you're expelled for assault (Which in college, their definitions are vastly different, so a girl who initiates a sexual encounter, feels bad about it but never says anything during the encounter can be ruled assault and yes, that's happened.)
A lot will depend on how the new rules are applied. For example, they're narrowing the definition of what's covered to what the supreme court has ruled is a hostile environment, so I'm guessing that means no more 1 year suspensions for a consensual fist bump.
But will colleges over correct as they did the last time.
The cross examinations needs to be further explained.
The rules forbid allowing the students to cross examine each other. But they can use an advocate. What happens if one student (Either the accuser or accused) can afford a lawyer and the other can? Will the school stick that student with a French Lit professor? Or their mom?
That's also happened. Notre Dame expelled a student because his ex said she was terrified he was going to hurt her because he talked about committing suicide. She submitted texts that were incomplete and college wouldn't admit the full ones which showed he seeking contact with a guy she was terrified of. The was a video that they had of her talking about wanting to destroy him.
She was allowed a lawyer who could interact with her client and the panel, he was not allowed his lawyer, just his mom who had to be quiet.
He was a couple of weeks away from graduating, so a judge gave a TRO, forcing them to administer the final exams so if he won he wouldn't have to repeat the entire semester. Eventually they settled because it was clear they'd lose when all evidence showed she was harassing him, not the other way around.
1 of the moms I know told me she was told by one of the admin people that there was no way her son wasn't going to get expelled, and to get ready to sue. Her son had 2 eye witnesses and texts that backed up his account that he never touched the accuser, but they didn't allow that into the record. The school settled in 3 days, and the accuser admitted she lied, because the evidence was so overwhelming in their favor.
That's how bad it is.
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Post by Vince524 on Nov 28, 2018 13:02:19 GMT -5
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Post by Vince524 on Dec 18, 2018 13:00:49 GMT -5
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