Grade Point DeVos decries ‘failed system’ on campus sexual assault, vows to replace it

[amigocabal]

https://www.washingtonpost.com/news/gra ... 99935b3d8a

Education Secretary Betsy DeVos vowed Thursday to replace what she branded the “failed system” of campus sexual assault enforcement, to ensure fairness for victims and the accused.

“Instead of working with schools … ,” DeVos said, “the prior administration weaponized the Office for Civil Rights.”

“We must do better because the current approach isn’t working,” she said.

[Read the full transcript here: Betsy DeVos remarks on campus sexual assault]

In an interview with CBS after the speech, she was asked if she was rescinding the Obama-era guidelines. “Well, that’s the intention, and we’ve begun the process to do so,” DeVos answered.

“… The process is an extended one. But it is the intention to revoke or rescind the previous guidance around this.”

Continue reading...

[Zaune]

You know what? I'm okay with this. Key quote:

“One rape is one too many,” DeVos said firmly, and “not one more survivor will be silenced. We will not abandon anyone.” As a mother, she said she has sympathy for parents whose children are victims of sexual misconduct. “I cannot imagine receiving that call.”

But she also repeatedly emphasized the rights of students who are accused, saying one person denied due process is one too many, and was harshly critical of the system established by the Obama administration, saying it had failed too many schools. “School administrators tell me it has run amok.”

She said the department would go through a formal process seeking public input in order to replace the current system with a more effective and just system.

“Every survivor of sexual misconduct must be taken seriously,” she said. “Every student accused of sexual misconduct must know that guilt is not predetermined.

“These are non-negotiable principles.”

DeVos criticized a key element of Obama’s policy: that schools use a standard known as “preponderance of the evidence” when weighing sexual misconduct cases.

“Washington dictated that schools must use the lowest standard of proof … it’s no wonder so many call these proceedings ‘kangaroo courts.’ ”

Now it wouldn't surprise me doing these schools a disservice and exaggerating just how bad it can get, and it still remains to be seen how well she fits the deed to the word, but as someone who has first-hand experience of the consequences of being mistakenly labelled a sex offender* I am extremely uncomfortable with the fact that a lot of people seem to think an accusation is as good as a conviction.

* To make a long and unpleasant story short, it seems I have a distant cousin with the same last name and a similar date of birth who's done time for attempted rape, among other things. There was a mix-up when someone had to carry out a criminal record check.

[Ralin]

Saw this a little while ago. Strictly speaking much of what she's saying is true. University procedures for dealing with sexual assault allegations are often unfair and harmful, and the fact that they some of them can effectively punish an accused student on scanty evidence with little or no recourse is a legit issue, if exaggerated in some corners.

But I have no faith in her or the administration who appointed her to improve things or not actively make them worse.

[amigocabal]

Saw this a little while ago. Strictly speaking much of what she's saying is true. University procedures for dealing with sexual assault allegations are often unfair and harmful, and the fact that they some of them can effectively punish an accused student on scanty evidence with little or no recourse is a legit issue, if exaggerated in some corners.

But I have no faith in her or the administration who appointed her to improve things or not actively make them worse.

She could merely withdraw the letter.

The whole problem arose because the previous Administration stretched the definition of sex discrimination past the point of incoherence, and decided that they needed to micromanage how universities should police the sexual behavior of its students.

[Simon_Jester]

There is literally every reason to expect DeVos and the administration of which she is a member to do nothing about campus sexual assault except make noise about how they're going to have the biggest, yugest, best system ever.

The bare fact of being willing to work for "grab 'em by the pussy" Trump is evidence of people who have a high tolerance for sexual assault. For people with DeVos's kind of money, combine that with the idea that they're to high-status to be vulnerable, it's the pretty peasant girls who have to worry...

[Flagg]

Saw this a little while ago. Strictly speaking much of what she's saying is true. University procedures for dealing with sexual assault allegations are often unfair and harmful, and the fact that they some of them can effectively punish an accused student on scanty evidence with little or no recourse is a legit issue, if exaggerated in some corners.

But I have no faith in her or the administration who appointed her to improve things or not actively make them worse.

She could merely withdraw the letter.

The whole problem arose because the previous Administration stretched the definition of sex discrimination past the point of incoherence, and decided that they needed to micromanage how universities should police the sexual behavior of its students.

No, the problem was widespread sexual assaults happening and nothing being done even when reported.

[The Romulan Republic]

Even if the Obama policy is seriously flawed, I, similar to Simon_Jester, have absolutely zero faith in President Pussy-grabber's administration to "improve" the situation for anyone except wealthy white rapists.

Edit: Bottom line is, Trump (and by extension, his cronies) doesn't get "benefit of the doubt" from me any more. No silver lining, no compromise or bipartisanship, no "maybe this time they won't fuck up". Even when they do something right, or seem to, its for selfish reasons and only serves to obfuscate and confuse opposition to the horrible things that follow it.

As long as Trump is in the White House, I will extend no trust or support to any action originating from the White House. They don't deserve it, and we'll only pay for giving it to them. Experience has shown this again and again.

[Flagg]

The bare fact of being willing to work for "grab 'em by the pussy" Trump is evidence of people who have a high tolerance for sexual assault. For people with DeVos's kind of money, combine that with the idea that they're to high-status to be vulnerable, it's the pretty peasant girls who have to worry...

She's a "blame the victim" type, I can tell. To her, a college girl who gets raped due to being drunk and unable to give consent and/or resist, date raped, or assaulted and raped while walking alone in the middle of the night is partly or equally responsible for "bad behavior", "leading him on", or "taking a risk and practically asking for it".

I would expect her to act the exact same way if it were her own daughter.

[Crazedwraith]

You can tell from.... what exactly?

[Flagg]

You can tell from.... what exactly?

Her tone and experiences with people just like her. I mean I can't say 100% but given who she's working for and this being the first big thing she does? It's obvious. Though, granted it's my opinion. But I also don't feel like I'm going out on a limb here.

[Ralin]

No, the problem was widespread sexual assaults happening and nothing being done even when reported.

In a lot of ways I don't think there's really a right answer here for what the schools should do. I mean it seems obvious they should do something and they need some sort of policy for expelling rapist students or at least restricting them from contact with their victims until (or if) the courts make a ruling on whether they're guilty or not but... they're schools. They don't have the authority or the resources to perform a fair and impartial investigation in a lot of cases, and without the protections the legal system has built-in them trying can very easily lead to either victims or the accused being badly mistreated.

Due process isn't just a legal concept, after all.

[Alyrium Denryle]

No, the problem was widespread sexual assaults happening and nothing being done even when reported.

In a lot of ways I don't think there's really a right answer here for what the schools should do. I mean it seems obvious they should do something and they need some sort of policy for expelling rapist students or at least restricting them from contact with their victims until (or if) the courts make a ruling on whether they're guilty or not but... they're schools. They don't have the authority or the resources to perform a fair and impartial investigation in a lot of cases, and without the protections the legal system has built-in them trying can very easily lead to either victims or the accused being badly mistreated.

Due process isn't just a legal concept, after all.

It is actually not that hard to deal with.

Right now, universities are using a Preponderance of Evidence standard for determining guilt (and thus expulsion and the like) just like they do for academic misconduct. That is too low. Particularly combined with the fact that this is done by university admins and not properly trained legal professionals. Procedural due process gets short-circuited. Under normal circumstances if a student gets caught cheating the Preponderance of Evidence standard is sufficient, but not in this case due to implications in criminal court etc.

The Beyond a Reasonable Doubt standard is too high, because this is a civil matter as far as the school is concerned.

Thankfully, we have a middle ground legal standard in the US. The "Clear and Convincing" evidentiary standard.

So use that. Universities have their own police forces as well, if they have police they SHOULD have the other apparatuses of a justice system. At the very least in house arbitration courts that are staffed by actual fucking lawyers. Have an advocate for the victim, and advocate for the alleged perp;both contracted from local attorneys (paid by the university, not the students), and a judge (another actual lawyer on permanent university staff) to adjudicate and pass judgement. Use evidence collected by the police. Steps can be taken to keep the defendant from bothering the plaintiff. Once everything is settled, send everything to criminal court, unless the criminal court deals with it first. University administration has no fucking say in any of this. If the police don't do their damn job, the lawyers can pass that recommendation up the chain to admin to clean house.

[The Romulan Republic]

That... makes a lot of sense to me.

[Elheru Aran]

The main difficulty would be ensuring that this is consistent across the board. Expect the usual states to cry 'government overreach' when they try to enforce it on the public schools, and the private schools will clutch their pearls and send out nasty-grams to their deep-pocketed old-money funds.

But on the whole the notion of a 'judiciary' for colleges and universities isn't a bad notion, at least in the ones big enough for these kind of things. Smaller schools should have something similar set up in the local justice system, particularly if they use local police for law enforcement on campus.

Strangely enough my wife's school, even though it wasn't much bigger than a couple thousand students, had its own 'security force'. They were just rent-a-cops rather than proper police, granted, but that's probably fine for a small Christian college in a small town.

[amigocabal]

Saw this a little while ago. Strictly speaking much of what she's saying is true. University procedures for dealing with sexual assault allegations are often unfair and harmful, and the fact that they some of them can effectively punish an accused student on scanty evidence with little or no recourse is a legit issue, if exaggerated in some corners.

But I have no faith in her or the administration who appointed her to improve things or not actively make them worse.

She could merely withdraw the letter.

The whole problem arose because the previous Administration stretched the definition of sex discrimination past the point of incoherence, and decided that they needed to micromanage how universities should police the sexual behavior of its students.

No, the problem was widespread sexual assaults happening and nothing being done even when reported.

Universities should not be required to pick up the slack just because law enforcement could not do things like getting rape kits tested in a timely manner.

The main difficulty would be ensuring that this is consistent across the board. Expect the usual states to cry 'government overreach' when they try to enforce it on the public schools, and the private schools will clutch their pearls and send out nasty-grams to their deep-pocketed old-money funds.

In most cases involving public schools, it is overreach,

The federal government is a government of limited powers, and it is not granted a general power to provide public education, nor a general power to discipline students. the only schools directly operated by the federal government are the District of Columbia public schools and the federal service academies.

When the feds are involved in the issue of student discipline by state public universities, it has historically acted to restrain, not compel, student discipline. See Papish v. University of Missouri Curators, 410 U.S. 667 (1973) , Healy v. James, 408 U.S. 169 (1972), Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University , (4th Cir. 1993), Ward v. Polite, 667 F.3d 727 at 738-739 (6th Cir. 2012)

this is because federal interference in state affairs is in the context of protecting rights from state intrusion. Our Bill of Rights has never been interpreted to require states to intrude on people's rights.

But on the whole the notion of a 'judiciary' for colleges and universities isn't a bad notion, at least in the ones big enough for these kind of things. Smaller schools should have something similar set up in the local justice system, particularly if they use local police for law enforcement on campus.Strangely enough my wife's school, even though it wasn't much bigger than a couple thousand students, had its own 'security force'. They were just rent-a-cops rather than proper police, granted, but that's probably fine for a small Christian college in a small town.

They should be modeled after the disciplinary process in the service academies and the Senior Military Colleges.

Right now, universities are using a Preponderance of Evidence standard for determining guilt (and thus expulsion and the like) just like they do for academic misconduct. That is too low. Particularly combined with the fact that this is done by university admins and not properly trained legal professionals. Procedural due process gets short-circuited. Under normal circumstances if a student gets caught cheating the Preponderance of Evidence standard is sufficient, but not in this case due to implications in criminal court etc.

Defenders of that standard would point out that this is the standard of proof used when rape victims sue their attackers in court for monetary damages (something William Kennedy Smith certainly heard from his lawyer).

The retoert would be that campus disciplinary hearings do not afford the same protections that courts provide to defendants in civil lawsuits.

[Alyrium Denryle]

Universities should not be required to pick up the slack just because law enforcement could not do things like getting rape kits tested in a timely manner.

You are speaking from a position of profound ignorance here. In the US, many universities have their own jurisdiction separate from the municipality in which they exist. They have their own police.

The federal government is a government of limited powers, and it is not granted a general power to provide public education, nor a general power to discipline students. the only schools directly operated by the federal government are the District of Columbia public schools and the federal service academies.

You don't actually know how our government works. Title IX consists of rules and regulations on universities that accept federal funds. Which is just about all of them. Most universities are public, and funded in part by money from the state and federal governments. Both of these entities can impose rules and conditions on the universities.

this is because federal interference in state affairs is in the context of protecting rights from state intrusion. Our Bill of Rights has never been interpreted to require states to intrude on people's rights.

The Bill of Rights is largely irrelevant here. There are these things called "federal statutes". And yes, the federal government WAS given the power to provide for education etc etc. By legislation. Legislation passed by congress under the aegis of the Necessary and Proper clause and which come into force when universities accept federal funds.

[Flagg]

She could merely withdraw the letter.

The whole problem arose because the previous Administration stretched the definition of sex discrimination past the point of incoherence, and decided that they needed to micromanage how universities should police the sexual behavior of its students.

No, the problem was widespread sexual assaults happening and nothing being done even when reported.

Universities should not be required to pick up the slack just because law enforcement could not do things like getting rape kits tested in a timely manner.

The main difficulty would be ensuring that this is consistent across the board. Expect the usual states to cry 'government overreach' when they try to enforce it on the public schools, and the private schools will clutch their pearls and send out nasty-grams to their deep-pocketed old-money funds.

In most cases involving public schools, it is overreach,

The federal government is a government of limited powers, and it is not granted a general power to provide public education, nor a general power to discipline students. the only schools directly operated by the federal government are the District of Columbia public schools and the federal service academies.

When the feds are involved in the issue of student discipline by state public universities, it has historically acted to restrain, not compel, student discipline. See Papish v. University of Missouri Curators, 410 U.S. 667 (1973) , Healy v. James, 408 U.S. 169 (1972), Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University , (4th Cir. 1993), Ward v. Polite, 667 F.3d 727 at 738-739 (6th Cir. 2012)

this is because federal interference in state affairs is in the context of protecting rights from state intrusion. Our Bill of Rights has never been interpreted to require states to intrude on people's rights.

But on the whole the notion of a 'judiciary' for colleges and universities isn't a bad notion, at least in the ones big enough for these kind of things. Smaller schools should have something similar set up in the local justice system, particularly if they use local police for law enforcement on campus.Strangely enough my wife's school, even though it wasn't much bigger than a couple thousand students, had its own 'security force'. They were just rent-a-cops rather than proper police, granted, but that's probably fine for a small Christian college in a small town.

They should be modeled after the disciplinary process in the service academies and the Senior Military Colleges.

Right now, universities are using a Preponderance of Evidence standard for determining guilt (and thus expulsion and the like) just like they do for academic misconduct. That is too low. Particularly combined with the fact that this is done by university admins and not properly trained legal professionals. Procedural due process gets short-circuited. Under normal circumstances if a student gets caught cheating the Preponderance of Evidence standard is sufficient, but not in this case due to implications in criminal court etc.

Defenders of that standard would point out that this is the standard of proof used when rape victims sue their attackers in court for monetary damages (something William Kennedy Smith certainly heard from his lawyer).

The retoert would be that campus disciplinary hearings do not afford the same protections that courts provide to defendants in civil lawsuits.

Did you get your BS in Arrogant Ignoramus from Liberty University?

[Simon_Jester]

this is because federal interference in state affairs is in the context of protecting rights from state intrusion. Our Bill of Rights has never been interpreted to require states to intrude on people's rights.

The Bill of Rights and subsequent amendments have repeatedly been interpreted to require states to punish criminals that the states might otherwise allow to go unpunished.

For example, the equal protection clause of the Fourteenth Amendment requires that the states provide all citizens with the protection of the law. Interpreted correctly, it doesn't matter whether these citizens are white or black, female or male, straight or gay, nerds or jocks, rich or poor. The state still has to provide the appropriate level of protection. That includes protections like "the rights of the accused under due process of law." It also includes protections like "a reasonable expectation that if someone assaults you, they will be tried and punished."

Not all forms of protection are "rights" to be free "from state intrusion." One of the biggest things that citizens depend on the state for is protection and the maintenance of public order.

If a gang of thugs beats up a straight citizen and they get punished, but a gang of thugs beating up a gay citizen get winked at, that is a violation of the Fourteenth Amendment. A state which fails to prosecute hate crimes against gays is violating the Fourteenth Amendment and the federal courts have every reason to slap them down for it. And if you want to call that "intruding on people's rights," I'm going to laugh.

Likewise, it is reasonable for the federal government to require that colleges which receive federal funds refrain from sex-based discrimination, and make reasonable efforts to ensure that their campuses are safe for potential victims of rape and other sexual assault.

[Flagg]

I guess a lot of people forgot that barely a decade ago there was a huge problem with women being raped at colleges and the schools doing nothing or very little about it. I mean if there has been actual systemic overreach then that can and should be addressed. But are the rights of those accused of such crimes really being so horribly abused that the first major issue the Education Secretary appointed by a vile rapist, pedophile, and overall perverted misogynist should be tackling?

Because speaking of tackling, I still see stories of celebrated college football players getting accused of rape and being protected by the school and municipality. For instance, Florida State University and Jameis Winston.

[Simon_Jester]

To be fair, I think it may well still have been true that rape rates in that age bracket were higher off college campuses than on. But fighting the problem in one place contributes to fighting it in all places, especially if you can win a victory like "college-educated males routinely grow up thinking of rape as a dangerous AND stupid AND evil thing to do, not just some horrible self-serving myth like 'oh yeah chicks like to say it's evil but secretly like it,' "

[Elfdart]

I find it interesting that DeVos claims to be concerned about the due process rights of those accused of rape on campus (fair enough, given some of the outright hoaxes that have been perpetrated), but she has no use whatsoever for the due process rights of tenured teachers or those under contract, whom she thinks the schools should be allowed to fire at will regardless of any contract.

[Patroklos]

Students are not employees, nor am I aware of any federal policy which is coercing action against tenured professors.

I am not saying you concerns there are not valid, but they really are not meaningfully related source or process wise.

[Simon_Jester]

Students are not employees, but a scrupulous concern for due process is a scrupulous concern for due process.

What we have here, the argument goes, is an unscrupulous concern for due process. Something like "due process for my friends, but not for my enemies."

[Flagg]

I find it interesting that DeVos claims to be concerned about the due process rights of those accused of rape on campus (fair enough, given some of the outright hoaxes that have been perpetrated), but she has no use whatsoever for the due process rights of tenured teachers or those under contract, whom she thinks the schools should be allowed to fire at will regardless of any contract.

The only "hoax" (I dislike that term since they were terrible miscarriages of justice) I can really recall was the Duke case where those racist rich white kids were falsely accused of rape by black strippers and all but burned at the stake in the media only for it to turn out they were falsely accused and the DA knew it but still prosecuted them. Then the case fell apart and he lost his law license which would probably not have happened if they were black kids on scholarship. In fact odds are good they would still be in prison as opposed to rich white kids whose families could afford expensive attorneys.

[amigocabal]

this is because federal interference in state affairs is in the context of protecting rights from state intrusion. Our Bill of Rights has never been interpreted to require states to intrude on people's rights.

The Bill of Rights and subsequent amendments have repeatedly been interpreted to require states to punish criminals that the states might otherwise allow to go unpunished.

For example, the equal protection clause of the Fourteenth Amendment requires that the states provide all citizens with the protection of the law. Interpreted correctly, it doesn't matter whether these citizens are white or black, female or male, straight or gay, nerds or jocks, rich or poor. The state still has to provide the appropriate level of protection. That includes protections like "the rights of the accused under due process of law." It also includes protections like "a reasonable expectation that if someone assaults you, they will be tried and punished."

Not all forms of protection are "rights" to be free "from state intrusion." One of the biggest things that citizens depend on the state for is protection and the maintenance of public order.

If a gang of thugs beats up a straight citizen and they get punished, but a gang of thugs beating up a gay citizen get winked at, that is a violation of the Fourteenth Amendment. A state which fails to prosecute hate crimes against gays is violating the Fourteenth Amendment and the federal courts have every reason to slap them down for it. And if you want to call that "intruding on people's rights," I'm going to laugh.

I refer to this article.

http://www.nytimes.com/2005/06/28/polit ... ref=oembed

Supreme Court rules that police do not have constitutional duty to protect person from harm, even woman who obtained court-issued protective order against violent husband which made arrest mandatory for violation; decision overturns ruling by federal appeals court in Colorado; it had permitted lawsuit to proceed against town of Castle Rock, whose police failed to respond to woman's pleas for help after her estranged husband

In the hypothetical you describe above, if a state were to decriminalize gay-bashing, the remedy would likely be in the form of overturning convictions, or requiring dismissal of charges, of assault and battery against those accused of bashing straights, on the basis that if the state chooses to criminalize battery, it must do so in an even-handed manner, and unless and until it does so, no persons may constitutionally be tried for battery.

Furthermore, if there was a positive Constitutional entitlement to have one's attackers punished, The victims could appeal sentences, independent of prosecutors. Or alternatively, they would have Article III standing to petition for an injunction in federal court to compel a prosecutor to appeal a sentence the victims feel is not enough. There is no precedent for this.

Likewise, it is reasonable for the federal government to require that colleges which receive federal funds refrain from sex-based discrimination, and make reasonable efforts to ensure that their campuses are safe for potential victims of rape and other sexual assault.

The dispute of course is what constitutes reasonable, and just how far Congress should go in regulating universities in this regard, especially in adopting specific disciplinary procedures.