Proposed Title IX rule changes, two takes

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.

Here's a little more insight into the new rules.
reason.com/blog/2018/09/14/title-ix-devos-harassment-new-rules


As 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.

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?

www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf

So 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.

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.

Well, one writer at The Atlantic agrees with a few of us here, regarding the ACLU:

www.theatlantic.com/ideas/archive/2018/11/aclu-devos-title-ix/576142/

www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal

Official new guidelines come out tomorrow. It'll also start a 60 day period of comments and questions. Interestingly, a lot of people who are up in arms, challenging that there's only 60 days and during the holiday season, want to return to the previous guidelines,which were pushed through with no notice and comment period and therefore lacked force of law.