A judicial process that doesn’t allow the accused to cross-examine his accuser or reliably see the evidence against him is a civil libertarian’s nightmare. It traduces every principle of fairness and is blatantly un-American.
Yet Education Secretary Betsy DeVos is about to get savaged for replacing just such a process with something more in keeping with our longstanding legal norms.
The Education Department is preparing new rules that would roll back the monstrously unfair Obama-era requirements for how colleges handle sexual-assault and harassment allegations. It will be a significant advance for due process, which is almost as out of style on campus as free speech.
In one of its least defensible actions, the Obama administration used its Office for Civil Rights to impose its preferred procedures for handling sexual-assault cases on all the universities in the country that receive federal funds. It did it via a 19-page “Dear Colleague” letter, in the name of Title IX, the provision in federal law prohibiting sexual discrimination in education.
The process was terrible. It blew right by the Administrative Procedure Act, which requires public notice and comment before such rules go into effect. And the substance was worse. If the letter reads as if it was written by inflamed activists who had no interest in balanced proceedings, that’s because it was.
It required colleges to adopt a “preponderance of evidence” standard rather than a “clear and convincing” standard.
It more or less forbade colleges from allowing the cross-examination of accusers.
It adopted a remarkably broad definition of sexual harassment to include “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
The administration also encouraged the use of a “single investigator-adjudicator system,” i.e., one person as investigator, judge and jury.
The Obama rules are medieval in the sense that they ignore central developments in Anglo-American justice that arose hundreds of years ago.
In their important book “The Campus Rape Frenzy,” KC Johnson and Stuart Taylor Jr. describe how the rules often played out: “Start with an alcohol-soaked set of facts that no state’s criminal law would consider sexual assault. Add an incomplete ‘investigation,’ unfair procedures, and a disciplinary panel uninterested in evidence of innocence. Stir in a de facto presumption of guilt based on misguided Obama administration dictates, ideological zeal, and fear of bad publicity.”
The result has, inevitably, been jaw-dropping miscarriages of justice. Everyone should want perpetrators of sexual assault to be punished — and in the criminal-justice system, not just by colleges — but elementary protections for the accused can’t be discarded in the process.
One reason the Obama rules were so lopsided is that they were crafted in an atmosphere of moral panic. It was assumed that there was a spiraling epidemic of sexual assault on campus. Taylor and Johnson note, to the contrary, that sexual assaults of female college students dropped by more than half between 1997 and 2013, and that young women in college are less likely to be assaulted than those who are not in college.
The Obama rules have been receiving a battering in the courts, where due process is still taken seriously.
A US district court judge wrote in a 2016 ruling against Brandeis University: “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion.”
This is the animating spirit behind the DeVos changes. They are still being formulated, but a New York Times report suggests that they will correct the worst excesses of the Obama rules and interject fairness into proceedings that were, shamefully, designed to lack it.
Source
Let's thank Betsy Devos: Betsy.Devos@ed.gov and let her know that what she is doing is fantastic and that we fully support it and her. The more of us they hear from the better so let's do it.
Showing posts with label changes. Show all posts
Showing posts with label changes. Show all posts
Thursday, September 6, 2018
Friday, September 29, 2017
Campuses Cautious As They Adjust To New Sexual Assault Guidelines
New federal guidelines for handling allegations of sexual assault are prompting a range of reactions from school administrators. While many are expressing concerns and vowing to maintain current policy, others are breathing a sigh of relief or scratching their heads in confusion.
Education Secretary Betsy DeVos officially rescinded Obama-era rules last week, replacing them with interim guidelines, until new permanent rules can be implemented. The Department of Education's new "Q&A on Campus Sexual Misconduct" may change everything from how much evidence should be required to prove allegations to how accused students can cross-examine witnesses.
Universities are "scrambling right now" to figure out what it all means, says Kristi Branham, associate professor and director of gender and women's studies at Western Kentucky University, who serves on a committee that works on education, training and awareness around sexual assault. "This is a tricky area."
"We're reading the new guidance carefully," says Kathleen Salvaty, systemwide Title IX coordinator for the University of California. "I definitely have some questions."
For example, Salvaty says that according to the new guidance, applying "special procedures" in sexual misconduct cases "suggests a discriminatory purpose, and should be avoided."
"I'm not sure what that means," Salvaty says. Schools have lots of special procedures for sexual misconduct cases, she says, precisely because they are different from cases of plagiarism, for example. And many of those are required by federal regulations. Schools are also unclear whether new language in the new guidance means that Title IX rules would no longer apply off campus — at a fraternity, for example.
"That is causing some concern and confusion," Salvaty says. "We're just not sure what to do."
Others have raised concerns that the new interim guidance contradicts a 2001 directive that was not among those rescinded by DeVos. John Clune, an attorney with Hutchinson Black and Cook LLC, says "the whole purpose of the 2001 guidance is that grievance procedures be prompt and equitable." But, he says, the new guidance removes time limits on investigations, allows schools to offer an appeal option exclusively to accused students, and permits schools to raise the evidentiary bar from "preponderance of the evidence" to a "clear and convincing" standard, making allegations harder to prove.
"That discriminates against complainants," Clune says. "It certainly undermines the concept ... that the proceedings be prompt and equitable."
Many schools say they are also confused by mixed signals on whether schools can try informal resolution methods, like mediation; the new guidance allows it, but the 2001 guidance bars it.
Skidmore College sociology professor David Karp says he hopes it signals a new opportunity for an alternative process he has been promoting known as restorative justice, a nonadversarial model that focuses on a victim's healing, and how offenders can contribute to that. Schools have refrained from trying the idea for fear it would be seen as a form of mediation.
"I do think this is a green light that hasn't existed before," Karp says. He cautions that more guidance and training is needed, because "if badly implemented, [RJ] can backfire and cause further harm." But "I think schools will feel like they have more latitude to explore this as an additional option," he says.
Oklahoma Wesleyan University is one school feeling freed up by DeVos' decision to rescind the Obama-era guidance, which OKWU President Everett Piper calls "nothing short of a disaster."
Last year, the university sued the Department of Education, arguing that those guidelines resulted in a "growing number of innocent students being trampled [by the] 'shoot first, ask questions later' approach."
Piper says he is relieved now that OKWU will no longer feel pressure to "compromise ... students' rights" and can now "operate ... without threat of government intrusion and overreach." But OKWU has not yet announced any specific change in policies or practices.
Indeed, most schools appear to be holding off on any immediate action. Officials from schools including Harvard, Cornell, the University of Missouri and the University of Michigan say they are still reviewing the new guidance to see what, if any, changes need to be made. And many more have announced they are simply staying the course.
"All of us are continuing as usual," says Sarah Berg, deputy Title IX coordinator of prevention, training and outreach at the University of Colorado, Denver and the Anschutz Medical Campus.
A letter to the Yale University community says the school has "no plans to deviate" from current Obama-era policies. California State University, Northridge says "Regardless of this new DOE action ... we will not waver in our commitment to Title IX and its protections." Similarly, Washington University in St. Louis says "regardless of decisions at the federal level, we have no intention of turning back on our commitment or resolve."
While that kind of resolve is reassuring to some, it's frustrating to others.
"It is disappointing, but not surprising," says Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a group that has criticized previous policies as unfair to the accused. Many schools see the new guidance as "designed to go back to the Stone Age," he says. "But really this is about an adjustment to make sure that both sides' needs are met, because that wasn't happening before."
Attorney Andrew Miltenberg of Nesenoff & Miltenberg LLP, who represents dozens of accused students, says the "pushback" from universities is unfortunate. "It's a stubborn 'we're still going to do it our way,' " he says.
While the interim guidance is technically just a recommendation, not a binding rule, Miltenberg says schools that stick to old policies do so at their own peril. He says DeVos' recent comments, and her decision to rescind the old guidance, will be a big boost to accused students' lawsuits.
"It's a significant acknowledgement that there is a problem in [that] process," says Miltenberg. "It's a great thing to say to a judge that 'before last week, you didn't have to believe that there might be inherent bias throughout the process, but now those arguments carry much more weight. The secretary of the Department of Education publicly announced those very things.' "
Miltenberg rejects the notion that the new guidance causes chaos or confusion, or even what he calls the "false hysteria" that the new guidance represents a setback for rape victims.
"This constant refrain is an attempt to create a ... big lie," he says. "It's like if you say it loud enough and often enough, people will believe it."
Ultimately, Miltenberg says, real change will require not only new policies but also a shift in who is administering them on campuses.
"The reality is that most of the people that I've come in contact with as part of any school's Title IX apparatus have some sort of victimcentric view, or previous work history, or something in their lives that I think makes them unable to be as impartial and objective as someone should be," Miltenberg says.
Title IX administrators deny any bias in their work, but they don't dispute how fervently they want to maintain current policies. "Everyone I know who does this work ... wants to hold on to this process, because we've really put our careers into this," says Berg. "We're really proud of where we've gotten. So to have someone essentially gut that policy would be really painful."
Source
This is great news. Let's thank Betsy DeVos for rescinding Dear Colleague. The more of us she hears from the better. Contact her: Betsy.Devos@ed.gov
Education Secretary Betsy DeVos officially rescinded Obama-era rules last week, replacing them with interim guidelines, until new permanent rules can be implemented. The Department of Education's new "Q&A on Campus Sexual Misconduct" may change everything from how much evidence should be required to prove allegations to how accused students can cross-examine witnesses.
Universities are "scrambling right now" to figure out what it all means, says Kristi Branham, associate professor and director of gender and women's studies at Western Kentucky University, who serves on a committee that works on education, training and awareness around sexual assault. "This is a tricky area."
"We're reading the new guidance carefully," says Kathleen Salvaty, systemwide Title IX coordinator for the University of California. "I definitely have some questions."
For example, Salvaty says that according to the new guidance, applying "special procedures" in sexual misconduct cases "suggests a discriminatory purpose, and should be avoided."
"I'm not sure what that means," Salvaty says. Schools have lots of special procedures for sexual misconduct cases, she says, precisely because they are different from cases of plagiarism, for example. And many of those are required by federal regulations. Schools are also unclear whether new language in the new guidance means that Title IX rules would no longer apply off campus — at a fraternity, for example.
"That is causing some concern and confusion," Salvaty says. "We're just not sure what to do."
Others have raised concerns that the new interim guidance contradicts a 2001 directive that was not among those rescinded by DeVos. John Clune, an attorney with Hutchinson Black and Cook LLC, says "the whole purpose of the 2001 guidance is that grievance procedures be prompt and equitable." But, he says, the new guidance removes time limits on investigations, allows schools to offer an appeal option exclusively to accused students, and permits schools to raise the evidentiary bar from "preponderance of the evidence" to a "clear and convincing" standard, making allegations harder to prove.
"That discriminates against complainants," Clune says. "It certainly undermines the concept ... that the proceedings be prompt and equitable."
Many schools say they are also confused by mixed signals on whether schools can try informal resolution methods, like mediation; the new guidance allows it, but the 2001 guidance bars it.
Skidmore College sociology professor David Karp says he hopes it signals a new opportunity for an alternative process he has been promoting known as restorative justice, a nonadversarial model that focuses on a victim's healing, and how offenders can contribute to that. Schools have refrained from trying the idea for fear it would be seen as a form of mediation.
"I do think this is a green light that hasn't existed before," Karp says. He cautions that more guidance and training is needed, because "if badly implemented, [RJ] can backfire and cause further harm." But "I think schools will feel like they have more latitude to explore this as an additional option," he says.
Oklahoma Wesleyan University is one school feeling freed up by DeVos' decision to rescind the Obama-era guidance, which OKWU President Everett Piper calls "nothing short of a disaster."
Last year, the university sued the Department of Education, arguing that those guidelines resulted in a "growing number of innocent students being trampled [by the] 'shoot first, ask questions later' approach."
Piper says he is relieved now that OKWU will no longer feel pressure to "compromise ... students' rights" and can now "operate ... without threat of government intrusion and overreach." But OKWU has not yet announced any specific change in policies or practices.
Indeed, most schools appear to be holding off on any immediate action. Officials from schools including Harvard, Cornell, the University of Missouri and the University of Michigan say they are still reviewing the new guidance to see what, if any, changes need to be made. And many more have announced they are simply staying the course.
"All of us are continuing as usual," says Sarah Berg, deputy Title IX coordinator of prevention, training and outreach at the University of Colorado, Denver and the Anschutz Medical Campus.
A letter to the Yale University community says the school has "no plans to deviate" from current Obama-era policies. California State University, Northridge says "Regardless of this new DOE action ... we will not waver in our commitment to Title IX and its protections." Similarly, Washington University in St. Louis says "regardless of decisions at the federal level, we have no intention of turning back on our commitment or resolve."
While that kind of resolve is reassuring to some, it's frustrating to others.
"It is disappointing, but not surprising," says Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a group that has criticized previous policies as unfair to the accused. Many schools see the new guidance as "designed to go back to the Stone Age," he says. "But really this is about an adjustment to make sure that both sides' needs are met, because that wasn't happening before."
Attorney Andrew Miltenberg of Nesenoff & Miltenberg LLP, who represents dozens of accused students, says the "pushback" from universities is unfortunate. "It's a stubborn 'we're still going to do it our way,' " he says.
While the interim guidance is technically just a recommendation, not a binding rule, Miltenberg says schools that stick to old policies do so at their own peril. He says DeVos' recent comments, and her decision to rescind the old guidance, will be a big boost to accused students' lawsuits.
"It's a significant acknowledgement that there is a problem in [that] process," says Miltenberg. "It's a great thing to say to a judge that 'before last week, you didn't have to believe that there might be inherent bias throughout the process, but now those arguments carry much more weight. The secretary of the Department of Education publicly announced those very things.' "
Miltenberg rejects the notion that the new guidance causes chaos or confusion, or even what he calls the "false hysteria" that the new guidance represents a setback for rape victims.
"This constant refrain is an attempt to create a ... big lie," he says. "It's like if you say it loud enough and often enough, people will believe it."
Ultimately, Miltenberg says, real change will require not only new policies but also a shift in who is administering them on campuses.
"The reality is that most of the people that I've come in contact with as part of any school's Title IX apparatus have some sort of victimcentric view, or previous work history, or something in their lives that I think makes them unable to be as impartial and objective as someone should be," Miltenberg says.
Title IX administrators deny any bias in their work, but they don't dispute how fervently they want to maintain current policies. "Everyone I know who does this work ... wants to hold on to this process, because we've really put our careers into this," says Berg. "We're really proud of where we've gotten. So to have someone essentially gut that policy would be really painful."
Source
This is great news. Let's thank Betsy DeVos for rescinding Dear Colleague. The more of us she hears from the better. Contact her: Betsy.Devos@ed.gov
Thursday, May 16, 2013
On changes
There aren't going to be any. In fact I would love to double the activism and quarter the misandry. Those are the only changes I see worth being made. Let the questions begin.
Masc,there are women who read this blog. Shouldn't you take their sensetivities into consideration?
No,they came to my board,my area I didn't go to theirs. I'm not toning a fucking thing down for anyone. The problem is that some "MRA's?" tone it down,diluting the message and the message is dismissed. I'm not going to let that happen. Too many times guys get sweet talked by women into toning down the message until it is no longer effective. Irlandes warned us of this and he is right. I've seen the problem and I don't want to be part of it.
If changes were beneficial to the movement would you make them?
Yes,I would. I think that Register Her at A Voice For Men is a great idea and I would like it to be activated and updated. It was a very powerful tool against the feminists and they feared it. If I ran A Voice for Men it would up,running and kept up to date.
Where is the movement right now?
We're at a crossroads. We've come a long way and we need to use what works. I've always found that political activism works. If you help pass laws that benefit you and help defeat those that hurt you you live a lot better. That is what the feminists did. There is no reason we can't do the same.
what's a hinderance to men?
Rugged individualism especially the individual part. We need to work as a team or we will be defeated. That is the way it is.
Masc,there are women who read this blog. Shouldn't you take their sensetivities into consideration?
No,they came to my board,my area I didn't go to theirs. I'm not toning a fucking thing down for anyone. The problem is that some "MRA's?" tone it down,diluting the message and the message is dismissed. I'm not going to let that happen. Too many times guys get sweet talked by women into toning down the message until it is no longer effective. Irlandes warned us of this and he is right. I've seen the problem and I don't want to be part of it.
If changes were beneficial to the movement would you make them?
Yes,I would. I think that Register Her at A Voice For Men is a great idea and I would like it to be activated and updated. It was a very powerful tool against the feminists and they feared it. If I ran A Voice for Men it would up,running and kept up to date.
Where is the movement right now?
We're at a crossroads. We've come a long way and we need to use what works. I've always found that political activism works. If you help pass laws that benefit you and help defeat those that hurt you you live a lot better. That is what the feminists did. There is no reason we can't do the same.
what's a hinderance to men?
Rugged individualism especially the individual part. We need to work as a team or we will be defeated. That is the way it is.
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