DoE OCR Finds Princeton in Violation of title IX

[amigocabal]

http://www.huffingtonpost.com/2014/11/0 ... 07756.html

The Department of Education's Office of Civil Rights had found Princeton University to be in violation of Title IX for its disciplinary procedures regarding sexual harrassment.

Accused students also were provided reports that detailed the alleged misconduct, as well as the names of the committee members. During the committee review process, accused students could request that anyone with information about the accusations appear before the committee and could question them; accused students were permitted to have an adviser in the process, could submit character statements in writing and could make a closing statement, according to OCR. Reporting victims were not allowed any of these.

That clearly was discrimination, and could be sex discrimination in violation of title IX if applied unevenly with regard to sex. Furthermore, ethical principles require that both sides have a chance to present their case, and this chance was denied by Princeton.

But the below disturbs me.

The agency also said Princeton violated the rights of rape survivors by using a standard of proof for sexual assault cases higher than the federally recommended standard, which requires a "preponderance of evidence" for responsibility.

The problem is, first of all, our criminal courts use a "beyond a reasonable doubt" standard when it comes to sexual assault cases. This implies that our criminal jurisprudence stretching back two centuries violates the rights of rape survivors by insisting on a "beyond a reasonable doubt" standard. Furthermore, a cursory reading of the text of the law at issue is silent on the burden and standard of proof universities may use in campus disciplinary proceedings.

http://www.justice.gov/crt/about/cor/co ... ixstat.php

Thus, the ban on sex discrimination would only require that the burden of proof and standard of proof apply equally despite the sex of the accused or the accuser. It would not mandate "preponderance of the evidence" as opposed to "clear and convincing evidence", let alone "beyond a reasonable doubt".

As to ethics, I do not believe that Princeton was required to use a "clear and convincing evidence:" standard, let alone a "beyond a reasonable doubt standard", as opposed to a "preponderance of the evidence standard". that sasid, it is clear from the text of the law that Congress did not intend to determine what standard of proof must be used by universities- only that they apply equally with respect to sex.

[Coop D'etat]

The beyond a reasonable doubt standard is only applicable for matters of criminal law, most importantly because of the imbalance in power between an individual and the state as well as the prospect of loss of liberty. Its deeply inappropriate to use that as the standard outside of the context of criminal law.

University discipline is a civil law matter, and in such cases the "preponderance of evidence" standard is to be expected. Its exactly the same if the alleged victim was suing for the tort of (sexual) battery, or if an employer was looking at whether to discipline an employee for misconduct.

In other words, if there isn't a prosecutor coming down on you with the full power and resources of the government behind them, you shouldn't expect to avail yourself of the "beyond a reasonable doubt" standard. Its a legal doctrine governing the relationship between the state and its citizens, not between private persons or entities.

The protection the defendant would have here is the presumption of innocence, which means the burden of proof is on the other side. Which means the defense technically doesn't have to do anything to get a favourable decision and the other side has to prove every legal element to win.

[amigocabal]

The beyond a reasonable doubt standard is only applicable for matters of criminal law, most importantly because of the imbalance in power between an individual and the state as well as the prospect of loss of liberty. Its deeply inappropriate to use that as the standard outside of the context of criminal law.

University discipline is a civil law matter, and in such cases the "preponderance of evidence" standard is to be expected. Its exactly the same if the alleged victim was suing for the tort of (sexual) battery, or if an employer was looking at whether to discipline an employee for misconduct.

In other words, if there isn't a prosecutor coming down on you with the full power and resources of the government behind them, you shouldn't expect to avail yourself of the "beyond a reasonable doubt" standard. Its a legal doctrine governing the relationship between the state and its citizens, not between private persons or entities.

The protection the defendant would have here is the presumption of innocence, which means the burden of proof is on the other side. Which means the defense technically doesn't have to do anything to get a favourable decision and the other side has to prove every legal element to win.

This is true, and I have no objection to private universities to using a "preponderance of the evidence" standard when it comes to internal disciplinary matters. That written, I also have no objection when a private university chooses to use a higher standard. I would object to Congress requiring a higher standard (than preponderance of the evidence) for universities. It should not interfere (except to make sure whatever standards are used are applied in an evenhanded manner)

What we have here though, is a single executive agency usurping the role of the judiciary in finding that the "clear and convincing" standard used by Princeton violated Title IX. The link I posted leads to the text of the law, which does not mention the standard to be used by universities at all. Surely Congress did not intend to stop private universities from adopting a clear and convincing evidence standard or a beyonf a reasonable doubt standard.

[Simon_Jester]

Because you're getting your information second-hand, I think you may be jumping to conclusions.

OCR does not "usurp the role of the judiciary" by talking about the standard used by Princeton to judge purely civil cases that are internal to Princeton. Since no actual court case is involved, there's nothing here that the federal judiciary would need to do. This is more like having the Better Business Bureau regulate and monitor privately employed contract arbitrators.

It is routine and normal for private organizations to be investigated by regulatory boards. And to have the board comment on whether that private organization's practices are in compliance with federal law. Here, the OCR has found that Princeton did not follow federal requirements or recommendations. Which may not be fully included within Title IX itself. As a rule, a detailed description of "this is how you do things to avoid legal trouble" will take up a lot more space than the law you're trying to cope with does.

You and I presumably do not know every page of what the federal government issues as guidelines on the subject of Title IX. OCR, however, does, and Princeton should be expected to know too.

[Beowulf]

The beyond a reasonable doubt standard is only applicable for matters of criminal law, most importantly because of the imbalance in power between an individual and the state as well as the prospect of loss of liberty. Its deeply inappropriate to use that as the standard outside of the context of criminal law.

University discipline is a civil law matter, and in such cases the "preponderance of evidence" standard is to be expected. Its exactly the same if the alleged victim was suing for the tort of (sexual) battery, or if an employer was looking at whether to discipline an employee for misconduct.

In other words, if there isn't a prosecutor coming down on you with the full power and resources of the government behind them, you shouldn't expect to avail yourself of the "beyond a reasonable doubt" standard. Its a legal doctrine governing the relationship between the state and its citizens, not between private persons or entities.

The protection the defendant would have here is the presumption of innocence, which means the burden of proof is on the other side. Which means the defense technically doesn't have to do anything to get a favourable decision and the other side has to prove every legal element to win.

Except to call university disciplinary proceedings "kangaroo courts" to defame kangaroo courts. Civil cases have procedural safeguards to protect the defendant, despite the low standard of evidence required. There are, generally speaking, zero procedural safeguards in a disciplinary proceeding. There's no requirement for an impartial arbiter (and so, you generally have an arbiter that's going to be partial towards kicking the alleged offender out, just to avoid a lawsuit against the school), no right to counsel (even if you can afford one (and how many student can afford a lawyer?)), no requirement for discovery, and no actual standards for what evidence can be presented. Or for that matter, any punishment for untruthfulness in a proceeding. There's frequently no ability to cross-examine "witnesses". There's no right against self-incrimination (and testimony from a disciplinary proceeding can be used in a criminal case). There's no right to confront your accuser.

And the repercussions of a finding of guilty in a disciplinary proceedings are greater than one might expect. Because not only are you out of school, you're out the tuition you've paid, and you're not likely to get into another school to finish your degree, as whatever school you apply to will ask your previous school why you're not going there, and what school will let a known sexual predator attend class?

--

Bottom line: if it would be a crime in the outside world, why the hell is a university displinary hearing the proper forum for the charges? If a university want to convene a hearing after a criminal conviction has been issued, that's another thing.

[Alyrium Denryle]

The beyond a reasonable doubt standard is only applicable for matters of criminal law, most importantly because of the imbalance in power between an individual and the state as well as the prospect of loss of liberty. Its deeply inappropriate to use that as the standard outside of the context of criminal law.

University discipline is a civil law matter, and in such cases the "preponderance of evidence" standard is to be expected. Its exactly the same if the alleged victim was suing for the tort of (sexual) battery, or if an employer was looking at whether to discipline an employee for misconduct.

In other words, if there isn't a prosecutor coming down on you with the full power and resources of the government behind them, you shouldn't expect to avail yourself of the "beyond a reasonable doubt" standard. Its a legal doctrine governing the relationship between the state and its citizens, not between private persons or entities.

The protection the defendant would have here is the presumption of innocence, which means the burden of proof is on the other side. Which means the defense technically doesn't have to do anything to get a favourable decision and the other side has to prove every legal element to win.

Except to call university disciplinary proceedings "kangaroo courts" to defame kangaroo courts. Civil cases have procedural safeguards to protect the defendant, despite the low standard of evidence required. There are, generally speaking, zero procedural safeguards in a disciplinary proceeding. There's no requirement for an impartial arbiter (and so, you generally have an arbiter that's going to be partial towards kicking the alleged offender out, just to avoid a lawsuit against the school), no right to counsel (even if you can afford one (and how many student can afford a lawyer?)), no requirement for discovery, and no actual standards for what evidence can be presented. Or for that matter, any punishment for untruthfulness in a proceeding. There's frequently no ability to cross-examine "witnesses". There's no right against self-incrimination (and testimony from a disciplinary proceeding can be used in a criminal case). There's no right to confront your accuser.

And the repercussions of a finding of guilty in a disciplinary proceedings are greater than one might expect. Because not only are you out of school, you're out the tuition you've paid, and you're not likely to get into another school to finish your degree, as whatever school you apply to will ask your previous school why you're not going there, and what school will let a known sexual predator attend class?

--

Bottom line: if it would be a crime in the outside world, why the hell is a university displinary hearing the proper forum for the charges? If a university want to convene a hearing after a criminal conviction has been issued, that's another thing.

All that would be true, and absolutely galling if it actually had the effect of harming those accused of rape on campus. It does not. Princeton, and over 70 other universities, are under Title IX investigation right now for their procedural misconduct in handling rape accusations from the other side of the equation. Mistreating rape victims, shoving said rape under the rug and refusing to even accept reports, obstructing ACTUAL police investigations etc etc etc etc.

Though I do agree, the University should not be doing the investigating. Actual law enforcement should. Except, you know... in some cities with big universities, the police obstruct their own investigations in order to protect football players and the like.

[amigocabal]

The beyond a reasonable doubt standard is only applicable for matters of criminal law, most importantly because of the imbalance in power between an individual and the state as well as the prospect of loss of liberty. Its deeply inappropriate to use that as the standard outside of the context of criminal law.

University discipline is a civil law matter, and in such cases the "preponderance of evidence" standard is to be expected. Its exactly the same if the alleged victim was suing for the tort of (sexual) battery, or if an employer was looking at whether to discipline an employee for misconduct.

In other words, if there isn't a prosecutor coming down on you with the full power and resources of the government behind them, you shouldn't expect to avail yourself of the "beyond a reasonable doubt" standard. Its a legal doctrine governing the relationship between the state and its citizens, not between private persons or entities.

The protection the defendant would have here is the presumption of innocence, which means the burden of proof is on the other side. Which means the defense technically doesn't have to do anything to get a favourable decision and the other side has to prove every legal element to win.

Except to call university disciplinary proceedings "kangaroo courts" to defame kangaroo courts. Civil cases have procedural safeguards to protect the defendant, despite the low standard of evidence required. There are, generally speaking, zero procedural safeguards in a disciplinary proceeding. There's no requirement for an impartial arbiter (and so, you generally have an arbiter that's going to be partial towards kicking the alleged offender out, just to avoid a lawsuit against the school), no right to counsel (even if you can afford one (and how many student can afford a lawyer?)), no requirement for discovery, and no actual standards for what evidence can be presented. Or for that matter, any punishment for untruthfulness in a proceeding. There's frequently no ability to cross-examine "witnesses". There's no right against self-incrimination (and testimony from a disciplinary proceeding can be used in a criminal case). There's no right to confront your accuser.

And the repercussions of a finding of guilty in a disciplinary proceedings are greater than one might expect. Because not only are you out of school, you're out the tuition you've paid, and you're not likely to get into another school to finish your degree, as whatever school you apply to will ask your previous school why you're not going there, and what school will let a known sexual predator attend class?

--

Bottom line: if it would be a crime in the outside world, why the hell is a university displinary hearing the proper forum for the charges? If a university want to convene a hearing after a criminal conviction has been issued, that's another thing.

All that would be true, and absolutely galling if it actually had the effect of harming those accused of rape on campus. It does not. Princeton, and over 70 other universities, are under Title IX investigation right now for their procedural misconduct in handling rape accusations from the other side of the equation. Mistreating rape victims, shoving said rape under the rug and refusing to even accept reports, obstructing ACTUAL police investigations etc etc etc etc.

Though I do agree, the University should not be doing the investigating. Actual law enforcement should. Except, you know... in some cities with big universities, the police obstruct their own investigations in order to protect football players and the like.

an actual obstruction of a police investigation would be a crime. University administrators who did that should be prosecuted under state law.

[PKRudeBoy]

Thing is, most college campi have their own police departments, who, in some cases report directly to the administration.

[Elheru Aran]

Thing is, most college campi have their own police departments, who, in some cases report directly to the administration.

These campus police departments, however, are generally little more than glorified security goons. The most they deal with are theft, vandalism, the occasional fight, and crowd control. They don't handle anything like detective work and forensics. Should they run into an actual serious crime, they are generally expected and/or required to bring in and cooperate with the local authorities.

[SCRawl]

Though I do agree, the University should not be doing the investigating. Actual law enforcement should. Except, you know... in some cities with big universities, the police obstruct their own investigations in order to protect football players and the like.

an actual obstruction of a police investigation would be a crime. University administrators who did that should be prosecuted under state law.

Underlining mine. Alyrium is suggesting that it is the police who are responsible for the obstruction, not the university authorities. I'm not familiar with any such incidents, and I'm not trying to give weight to his claims, but I'm simply trying to remove any confusion over this point.

[amigocabal]

Though I do agree, the University should not be doing the investigating. Actual law enforcement should. Except, you know... in some cities with big universities, the police obstruct their own investigations in order to protect football players and the like.

an actual obstruction of a police investigation would be a crime. University administrators who did that should be prosecuted under state law.

Underlining mine. Alyrium is suggesting that it is the police who are responsible for the obstruction, not the university authorities. I'm not familiar with any such incidents, and I'm not trying to give weight to his claims, but I'm simply trying to remove any confusion over this point.

Yeah, I misread that.

[Alyrium Denryle]

Though I do agree, the University should not be doing the investigating. Actual law enforcement should. Except, you know... in some cities with big universities, the police obstruct their own investigations in order to protect football players and the like.

an actual obstruction of a police investigation would be a crime. University administrators who did that should be prosecuted under state law.

Underlining mine. Alyrium is suggesting that it is the police who are responsible for the obstruction, not the university authorities. I'm not familiar with any such incidents, and I'm not trying to give weight to his claims, but I'm simply trying to remove any confusion over this point.

One example. One that happened In MY Fucking Building.

A woman was blitz-raped in our animal care facility on a saturday night, in an area that is access controlled and monitored on camera. She called the police, naturally. It took 13 hours for there to be any kind of response, by which time she had showered and all evidence at the scene was contaminated by the fact that it is an animal care wing and people move in and out on the weekends.

The police then dropped any investigation for lack of evidence. A lack they pointedly caused. Incidentally, I know the victim. I dont know who the victim is due to rape shield laws, but I know everyone in the building including the janitorial staff, ergo, I know her and she is likely someone I rather like.

Within the same stretch of a few weeks, three women were raped by one dude in one of the frat houses. In the span of a week. They all knew their rapist--who had drugged them. No charges filed because the police bungled the investigation. The dude was not even subject to a university disciplinary hearing, but was instead found not-guilty by of all things, the Greek Life internal system which is composed entirely of other frat douches.

Then there is the Tallahassee PD. All of it.