A lot of times when I write these little political blogs I’m very confrontational and frankly downright mean to the other side. I do this on purpose. I like making fun of people because I’m a horrible and spiteful little man. But this isn’t one of those times. Every once in a while I realize I need to dial back a little bit because i really want to understand an opposite point of view. I want this to be one of those times. I want to ask people actually understand a viewpoint that is pretty much diametrically opposed to my own. So I’m going to try to play nice. I’m really going to try. But it’s going to be hard… really hard…. because,
Betsy Devos, WHAT THE ACTUAL FUCK?!?!?!!!
Today, in my freshman writing class, I was teaching my students about logical fallacies in rhetoric. Things that you might want to look out for because they actually make for bad arguments, even though they’re sometimes very effective. One of the fallacies on our list is a “straw man.” Some of the students were having trouble with this concept. If you’re not familiar with how a straw man works, it’s very simple. Person A makes an argument. Person B doesn’t have a good refute for that argument so instead they try to argue against some vaguely related argument (sometimes only barely related at all) so as to have something they feel like they can compete on. In my example I said, what if I was running a political campaign against Amy (my co-instructor for this class) and she was campaigning with the primary case of “I want more money for public schools!” I certainly can’t campaign that I think schools are stupid and want them to have less money, so instead I argue against her wanting higher taxes. Sure she never said anything about wanting to raise taxes. Maybe she intends to take the money from another program. But campaigning against education is a losing battle so I attack the straw man of my opponent wanting higher taxes. It’s generally considered a weak way to argue, but it’s fairly common.
Ok, I can’t believe I’m saying this, but will someone please teach Betsy Devos how to attack a straw man?
So if you’ve been too busy today worrying about hurricanes killing you or you’re loved ones… or even if you were paying attention to political news and so are consumed by Trump making backdoor deals with the democrats to undermine the republican party (yes, I actually just said that), what you might have missed was that today Betsy Devos gave a speech where she talked about reversing/rewriting the Obama administration changes to Title IX regarding Sexual Assault Investigations on college campuses.
For those who don’t know what that means, basically Obama essentially made it policy that colleges and universities had to take accusations of sexual harassment seriously. That’s it. He set guidelines for investigating rape charges. Which, for the most part were basically: “you know… do it…” and also “and if you find that you have a rapist, do something about it.” That’s pretty much all he did. Like for both democrats and republicans this should pretty much be one of the least controversial things to come out of the Obama presidency. But for Betsy Devos? I mean… WHAT THE ACTUAL FUCK?!?!?!!!
So here’s where I’m looking for other people to explain her reasoning to me. Back when Devos first got nominated, Stephanie wrote about her and about how unqualified she clearly was for the position of Secretary of Education. Some people argued with her… mostly i think because Devos supports vouchers, even though she doesn’t seem to understand what it means or how the education system works. But you know, she wants this one thing… so uh… yay I guess. And I argued about why she was a bad pick then. I also made quite a bit of fun of her when she argued that we needed guns in schools because of all the wild bear attacks we teachers have to fend off. I mean, how could I not?
But on this one? WHAT THE ACTUAL FUCK?!?!?!!!
Like, I get the complaint that the University has become too much of an ivory tower. I get the complaints about political correctness run amuck. I get that some people might be worried about the liberal snowflakes and their safe spaces. And honestly, there are even reasonable arguments that one can make against all of that. Unfortunately, often the people arguing against it aren’t very smart and they make really shitty arguments against it. But there are reasonable arguments that are intelligent.
There isn’t much of one here. What you need here is to attack a straw man. If you really want to go down this road — and HOVA knows why you would — what you need here is to do your best to ignore the sexual assault part at all and focus on “typical liberal government overreach. Trying to stick federal control into situations that it has no business.” That’s at least a defensible stance. But not ol’ Betsy. Nope, her argument is that this needs to be corrected because it creates an unfair burden on the accused rapist.
WHAT THE ACTUAL FUCK?!?!?!!!
Like… who willingly walks into this argument on that side? What are you thinking? Like even the MRA groups who want this have the sense to attack a straw man. They focus on the rights of the people who are falsely accused. They play up the numbers— make it seem like there are millions of young men being falsely accused and having their lives ruined. It’s not true… but fine…. I mean… make some shit up! But not Betsy… she is worried that having these regulations forces schools that aren’t equipped to be judges and juries deal with sexual predators. The punishments are too severe. There are so many appeals to go through… Blah blah blah…
Once again…. WHAT THE ACTUAL FUCK?!?!?!!!
How do you come out in favor of the rights of the accused over the accuser in a rape case? Seriously though… I mean, I get that I’m predisposed to not be on her side. Sure. But like is there any way to defend her on this? What am I missing? I really want to know… is there anyone out there who thinks this is a good idea for any reason? If you have friends who are supporters of her or support her on this, send them my way. I’ll even try to be nice…, I just want to know what the line of thinking is here.
Because like, the only ways I can work it out…. WHAT THE ACTUAL FUCK?!?!?!!!
Related articles
I actually thought I heard and read the news wrong. I had to read it 3 times to make sure I had. I 100% agree with you Mav.
Cc: Kiki Parry
Seriously WTEF OL.
Devos is a worthless, privileged, out-of-touch dummy … with that out of the way.
I’d rather hear your thoughts on the dilemma caused by the concepts of burden of proof & innocent until proven guilty in regards to sexual assault. Typically, one can say innocent until proven guilty because the crime involves people AND things; a broken window, stolen goods, or even murder w a resulting corpse. The accused can be innocent until guilt is proven without the window, item, or corpse branded a liar. In the case of sexual assault, you (typically) have two parties stating opposite, contradictory facts. To hold with ‘innocent until proven guilty’ you must then assume the accuser untrue until proven true … which creates the very problem ‘innocent until proven guilty’ was trying to avoid.
I’m interested to hear thoughts on how this can fit our legal system and/or ideas on changes needed to accommodate this circumstance.
I mean. That gets super complicated. See, the problem there isn’t limited to sexual assault. It’s all assault. Or really any crime against a live accuser. The beyond a reasonable doubt provision always puts the burden of proof on the prosecution. Because the justice system isn’t about the victim. The victim in American justice is just a witness. The crime is actually prosecuted by the state. Everyone else is collateral.
So yes, by design you implicitly call the live victim a liar by exonerating the defendant. I might not LIKE that but I understand it.
And if she’d taken that course of argument… she might have something. One could argue that the legal system is designed to give the benefit of the doubt to the defendant. The in-house system of many schools is not in some cases. It gives the benefit of doubt to the defendant. Devos could have therefore argued that the system is unjust because it undermines the legal system. The argument would have been cold hearted. Downright abhorrent even. But it’s a better argument than what she gave.
See below for my cold-hearted, abhorrent argument
Not as abhorrent as I think you think. Because you sort of addressed it as a legal system… (side stepping the specifics of the rape issue) not as a justification… which is what she’s sort of implicitly doing. Anyway, I answered you in your thread, Strauss.
Yes, I think that there is certainly a nuanced legal discussion worth having. However, that is way beyond the skills/interest of DeVos.
An additional point was brought up by the head of the UC title IX department in an interview this morning … California state law aligns w the guidance verbiage and changes to that may put UC’s in conflict between California state law and federal law.
Right. There is certainly an argument for reform in criminal proceedings. Several arguments. One could argue that they’re too lax or too stringent.
Neither of those things are under Devos’s control for education and not addressed by her statement.
I’m sorry, Mav, but you’re hoping someone can explain her logic where the logic has nothing to do with the actual issue. She probably does not even fully understand the topic she’s discussing. The logic behind this is “Obama made it, so let’s unmake it.” That’s it. There is nothing else going on. That is the sum total of her logic on this. Because she does not understand the issue, she cannot construct any sort of reasonable argument. Someone tried to explain it, she only got bits of it, and decided this was a good way to attack it instead of admitting it’s all because this administration wants to get rid of anything the previous admin did. I think ascribing any other motivations to this is giving her too much credit for rational thought.
Oh totally. She’s absolutely an idiot. I mean… BEARS!!!
But what I’m wondering is if anyone is willing to defend her here.
And I totally agree with you. She simply doesn’t actually understand the argument she’s making. It’s like when they sent Trump to that debate and told him to come out strongly in favor of ProLife and overturning Roe v. Wade and he said “we’re going to arrest women who seek abortions” and the Republican Party said “holy shit!!! No!!!” And had to reign him in and give him new talking points.
But like she started making these murmurings over a month ago. And they just got bad today.
So I’m wondering if there’s any person willing to back her.
There is a SNL skit running through my mind… DeVos is sitting down to have a fireside chat where she says, “Some people do not understand my reasoning behind reversing Title IX. The mandate this administration has is simple. It is spite. We are here to hit the undo button on every single action taken under the previous administration – even the actions that were good ideas and would have agreed with had they been done by anyone else. Spite. It explains everything we do.”
See…. honestly that is even a better argument.
It’s kind of sad when life has become an SNL skit.
Where’s the samurai chef?
You forgot to end the sketch with a bear attack. ?
I can’t explain her reasoning, because I am almost certain it is awful beyond belief. But, purely on principle, I agree with the decision. I am certain I will disagree with the implementation (again, see the almost certainly awful beyond belief reasoning).
The reason I agree with principle is because I believe in the principle of defending the rights of the accused, for ALL crimes. Due process is important. It is what makes our justice system approach actual fairness (again, implementation often ruins what principle starts). It is literally enshrined in our Constitution next to inalienable rights like freedom of religion, equality of races, and the right of every citizen to vote regardless of genetics.
The concept of protecting the rights of the accused is rooted in the goal of protecting the rights of the innocent. The concept is that the rights of the innocent can only be adequately defended if the rights of the accused (innocent or guilty) are given priority over the rights of the victim. That can be a hard pill to swallow, but it is the undeniable basis of our justice system.
The Obama regulations on title IX fail in two major ways, in my opinion. First and foremost, a university has no place investigating felony accusations any more than you or I do. When crimes this serious are involved, only police, prosecutors, and their designated investigators should be anywhere near the evidence (including witnesses). University officials shouldn’t be talking to witnesses, shouldn’t be conducting interrogations, and definitely shouldn’t be making decisions of fact.
Second, the regulations require a preponderance of evidence standard rather than a beyond a reasonable doubt standard. This literally obliterates one of the main rights of the accused in the United States.
Now, most will say that a university is not the government, so it isn’t required to follow the 5th amendment or abide by any other part of the justice system. That is a good argument, with one exception. Title IX, either on its own, or as implemented by the Obama administration (not sure which), requires universities to engage in these investigations and requires them to use a specific standard for judging the accused. That requirement by the federal government, makes the universities a de facto agent of the government in these cases. And as de facto agents of the government, all of those Constitutional rights suddenly need to be protected.
I’ve thought about how this should be handled and I don’t have a lot of great answers, but I am certain that the Obama solution is wrong. University officials (other than University police officers) should not be investigating felonies (of any type) or making decisions regarding guilt until after the police / district attorney has finished with a case. At the same time, we need some stupidly strict regulations to ensure that no accusation is swept under the rug (something along the time of multiple year prison terms for any university or government official that is found to have ignored or tried to hide an accusation). And Title IX guidelines should help universities implement fair ways to keep the accuser and the accused separated while any legal and potentially subsequent university investigations are ongoing.
And looking at that last paragraph I wrote, this is why I am certain that I will hate the DeVos rules. Because I don’t need to be Kreskin to know that no safeguards will be put in place to ensure that all accusations receive due diligence and that no fair guidelines will be made to keep accused and accuser from interacting.
So there’s a lot here. And like I said in response to Samantha, it’s super complicated and not just as easy as saying “we can’t ever blame the victim”.
Before I say anything, I’ll take Danielle A. St. Hilaire, a prof of mine, who literally posted about doing her Title IX training today (by sheer coincidence…. not in response to yesterday). She likely understands nuances better than I do and if she has time, may correct stuff. And I’m sure Nicole is still paying attention too because she already commented.
So anyway, Yes… I agree with you. Constitutional protection of the rights of the accused is of tantamount importance. And as I said to Sam, I don’t think that the justice system necessarily even should consider the victim as anything more than a witness, so (perhaps sadly) the accused has to be the focus. But Title IX doesn’t change the justice system or the burden of proof in a criminal case. Which you sort of pointed out when you said “universities aren’t the government”
Because that part is important. My understanding of the regulations is that they require (actually, I don’t even think they require… I think they mostly “encourage”) that the university “take the allegations seriously.” They DO NOT preclude police involvement. If a student is raped, s/he may just call 911 and avoid the university entirely. If a student comes to the university then the university can still just call 911 for her or it can investigate.
And this is true of ANY crime, really. If a student walks into my classroom and say “OH MY GOD! There’s been a murder right outside! There’s a dead body on the ground. What should we do?” I have a choice. I can pull out my cell phone and call the cops. Or I can say “Holy shit?!?! Really?!?!? Where?!?!? Show me!!!” and go outside and say “yep, that’s a murder alright. Let’s call the cops!” What I CAN’T do is tell the reporting student “Well, I mean, murders are complicated. Do we really want to go through the trouble of reporting a murder? They’re going to ask you a lot of questions as a witness and wouldn’t you just rather put this all behind you? And think about the murderer. He’s going to lose his athletic scholarship. And really, how is that going to bring the victim back? Is any of this really worth the disruption? Haven’t we all just suffered enough?”. And then bury the body in garden and not report it at all because I don’t want the college to have a rep as “the murder school.” Because in the case of rape, and sexual assault it turns out that this was happening a LOT.
It would be great to say the school should never be involved at all — that it should always just be a pass through to the “real authorities” to handle the situation. But for a variety of reasons (some good and honestly, some that really aren’t good at all, but still are there) this just isn’t true or practical. The school is going to be involved and therefore regulations need to be there. For one, students have a weird relationship with their school. It’s not quite professional. It’s not quite personal. It’s not quite parental. If a student is disclosing a rape to professor or advisor, that’s because there’s a sense of vulnerability (obviously) and a sense of trust that goes beyond what you might have the cops. There’s a preexisting relationship there.
And in order to foster that relationship, since we ARE NOT the justice system, you sort of want to err on the side of the victim rather than accused. Keep in mind, that no matter what happens with the school “investigation” the rights of the victim and the accused in the court of law are unchanged. And vice versa. So preponderance of evidence vs beyond a reasonable doubt, matters because you want to be able to protect the alleged victim even if the alleged accused is legally innocent. Like, in the absolute worst possible case here, lets say a girl accuses a boy of sexual assault… lets say there’s no evidence whatsoever. Maybe it even goes to trial even, and the boy is exonerated. Or maybe there’s not enough evidence to warrant that and the whole thing goes away. Either way, it’s still probably in the best interest of the school to make sure these people are not in the same class at the very least. And I can tell you from personal experience that that happens and it’s not good for anyone (teacher included).
But as you said, and as Nicole said, and as I basically pointed out originally, nothing Devos said actually addresses ANY of this. I don’t think she actually even understands the issue. Like, I think YOUR concerns could just be solved by adding the phrase “mandatory reporting of all allegations” and you’re done, right?
Not quite a solution, because I disagree that the rights of accused and accuser are preserved by the school performing an investigation / making a decision.
In the theoretical that is true, but as a matter of practicality, such investigations / decisions usually interfere with the rights of the accused, accuser, or both. The most common example is that a university will force one or both to make a statement without a lawyer present, threatening disciplinary action (up to expulsion) if such a statement isn’t made. That directly interferes with a right that a person would have in a court of law because that statement can then be used in court.
So, yes, I think mandatory reporting of allegations is a good start, but I don’t think it alone solves a problem that exists with current Title IX enforcement.
except that Devos isn’t addressing that. Like, at core, I don’t necessarily disagree with you. But what you’re actually arguing for is MORE regulations and guidelines. That is, you’re saying “this is a problem, we need strict constitutional mechanisms to handle this.”
I’m saying there are two issues.
1) the university and the state are different in function. Even in the case where there is no legally defined crime (because I agree with you that the rights of the accused need to be preserved) for the state, that doesn’t mean there is no issue that needs to be dealt with on a social or personal level by the university (and quite often there is). On the state level the accused has to be the focus. On the university level the accuser should be.
2) both my #1 statement here, and your policy are orthogonal to what Devos actually said, which was basically “blow the whole thing up.”
I mean, there’s an argument to be made that shoehorning this into Title IX which is actually about discrimination and not assault was the wrong thing to do anyway. But again, that’s not what she’s saying either.
Then let’s examine #2. From her perspective, the current system violates the rights of the accuser and the accused. She said as much during her press conference. Why shouldn’t she “blow the whole thing up?” If the policy violates Constitutional rights, in her opinion, and she has the power to end it, why should she allow it to last even a single day longer than necessary.
Like I said, that is where I agree on principle. Where I disagree is that I would institute a replacement policy (I think she hinted that she might, too *shudders*). But even if I couldn’t institute a replacement policy (for reasons of political red tape that I am not familiar with), if I were in her position, I’d definitely lean towards “blow the whole thing up” too, just because I have major concerns with violating due process rights.
All of the above, though, definitely is conditional on my understanding being correct of how Title IX was executed under Obama regulations (which could potentially be far off the mark).
because it doesn’t violate constitutional protections. Again, there are two issues. There is the issue of how the state treats a defendant and how a private institution handles a dispute. My understanding of Obama directive is that it says “Take this seriously.” It in no way precludes or substitutes for the actual legal proceedings. In fact, it was added to stop universities from just trying to make allegations go away without due process. Something which Devos seems to not realize was an issue at all (and frankly still is, because the regulations don’t go far enough).
So even if you argue that it’s “not perfect” the “so just blow it up” solution is essentially the same as “repeal Obamacare and we’ll figure out a replacement later.”
But worse, because the at least the “repeal and replace obamacare” people are attempting to address an actual problem… as opposed to a misunderstanding of the problem.
This is closer to when in the debates Trump’s handlers had told him to take a hardline ProLife stance, so when he was asked the question about what he would do about abortion he said “we’re going to arrest women who seek abortions” and suddenly the RNC was like “what? Holy shit?!?! NO!!! That’s not what we want!” and he had to walk it back. The only way what Devos actually said “helps” anyone, including the accused is if we interpret it as “just don’t look at sex crimes at all.” Any other interpretation is to read wishful thinking into it in order to match it up to a preferable viewpoint. You have to assume “well, she probably meant….” and I don’t think we can EVER assume that with her… because, you know… BEARS!
I can’t speak for her, but as I understand the Obama regulations, they do violate Constitutional protections. As I said, my understanding is that the Obama regulations require 1) an investigation, 2) decisions to be made using the “preponderance of evidence” standard. And, as I said earlier, since the state is requiring this, that makes the university a de facto agent of the state.
You appear to disagree with some part of the above and I am not certain which of our understandings are correct.
Chiming in because I was tagged. Investigations of sexual assault on campus are not criminal investigations, and, as Mav said, they in no way preclude criminal investigations. They are conducted independently. If a university finds a respondent (we don’t use the language of the “accused” or “defendant” because it is not a criminal process) responsible for a violation of the code of conduct–which explicitly prohibits sexual misconduct, assaults, etc.–that does not affect any potential criminal investigation in any way.
“Beyond a reasonable doubt” is not the standard in all legal proceedings; it is in criminal proceedings, but not always in civil ones. If the state is considering depriving someone of their liberty, then I damn well want that standard to be “beyond a reasonable doubt.” But there are other situations, where less is at stake for the accused, where the standard of evidence is simply lower. University Title IX proceedings aren’t even civil legal proceedings, so the fact that they take a lesser standard of evidence seems reasonable to me. It was also explained to us today that one of the reasons for the lower standard of evidence was to prevent a “chilling” effect on reporting. Getting a conviction in a criminal rape case is hard, and this has a very obvious effect on the willingness of victims to pursue criminal charges. Where the stakes are relatively low–no one has a “right” to attend a specific university–and where there is a very clear, known problem–1 in 4 women and 1 in 16 men on college campuses are sexually assaulted during their time there–going with the lower standard of evidence to make sure that victims of sexual assault feel comfortable coming forward is important.
The university has a responsibility to maintain a non-hostile environment for all employees and students. Investigation of complaints against students who create a hostile environment for others–whether it’s sexual assault, simple assault, theft, etc.–is necessary for the university to be able to maintain its responsibility to students in this regard; and when it’s found likely that a student has in fact violated the code of conduct in a way that creates a hostile environment, then removal of the student from the university is a way for the university to discharge its responsibility to all the students.
A student’s “right” to attend a given university extents only as far as that student’s adherence to the standards of conduct–academic and behavioral–that the university sets out. We do not have legal proceedings when a student is accused of egregious plagiarism; but if a student is found to have plagiarized egregiously, that student may well be expelled. A violation of academic standards–where the standard of evidence is often “preponderance of the evidence” (or sometimes “clear and convincing”)–is considered a reasonable reason to remove a student from the university. In a case where one student has assaulted another–whether sexually or otherwise–this seems even more obviously reasonable. The process for judging responsibility for a sexual assault on campus (by members of campus) is the same as it is for all other code of conduct violations, at least here; the only difference is that we get a LOT more training about sexual assault cases. So I’d say the rights of students accused of sexual assault on college campuses are probably better protected BECAUSE of Title IX legislation–because it encourages a lot more training–than they are for any other code of conduct offense.
“…as Mav said, they in no way preclude criminal investigations.”
I never said the preclude criminal investigations. However, I did say, and still believe, that they interfere with criminal investigations in a way that potentially interferes with the rights of the accused, the accuser, or both.
“…that does not affect any potential criminal investigation in any way.”
And again, I agree that this is true in theory, but I do not believe it is true in practice. At a bare minimum, a finding of guilt or innocence will be raised by the appropriate counsel in a trial. And other factors can also influence a potential investigation or trial in ways that simply aren’t fair to one or both parties (see the example I gave above).
Of course, none of that answers the question of whether my interpretation or Mav’s is right on the Obama policy, but I’m not sure if you (or anyone on this thread) has the information to know for sure on that.
Not really. Because guilt or innocence is not the purview of the university.
Take rape out of it. We have rules as a university. One of our biggest rules is “academic integrity” which for the layman mostly means “we’re against plagiarism.”
So say you turn in a paper on Shakespeare for my class. I figure out that your paper is really just entirely cribbed from the cliffs notes for hamlet. I turn you over for investigation. The university looks and says “yep, he cheated” and you get expelled.
Now at the same time the cliffs notes people might also sue you for copyright violation. And that’s a complete and separate legal investigation. Maybe you go down for it. Or maybe the court finds that you changed enough to not technically be IP theft. As a university we don’t care. Like at all. You’re still expelled. Because you violated OUR terms.
We have rules about everything. Cheating. Theft. Assault. Even speech. And certainly rape. Our ability, responsibility, or ignorance of any of these things doesn’t affect the state’s pursuance of the rule of law at all.
Except that your plagiarism example ignores one very salient point. The government isn’t telling universities that they are required by law to investigate and enforce plagiarism rules.
I am reading the “Dear Colleague” letter right now (thanks Stephanie) and I just got to the part where it explicitly requires that universities, make a decision, and implement a consequence. I can’t think of any other infraction that a student can be accused of where the government requires a similar response. Thus, it becomes impossible to take rape out of the equation.
I am still reading the letter, so I have yet to confirm or deny the “preponderance of evidence” part.
Actually, I’m not positive the government DOESN’T tell us that. Danielle could probably say for sure… but I’m actually pretty positive that the government DOES tell us we have to investigate plagiarism charges in order to maintain our accreditation. There are actually lots of rules like that. Like the government tells us that we have to maintain that a student being in class X hours.
That said, the reason the government HAD to tell universities to investigate sexual harassment is because like THEY WEREN’T DOING IT. And moreover, they were actually hampering legal investigations by actively trying to hide it. Like a LOT.
(which is kind of why the Department of Education exists in the first place)
We are definitely in lock step on those last two sentences. It is just the sentence before that where I have problems. I strongly don’t think universities should be investigating felony accusations of any type, and if they must, I think it should only be after the authorities are done with the case.
And I finally reached that section. This letter states quite clearly that the “preponderance of evidence” standard must be used. In fact, it explicitly says that the “clear and convincing” standard (a standard that is stronger than PoE, but weaker than BaRD) is not allowed for this accusation, even when it is acceptable for judging other infractions.
In short, this specific infraction is forcibly being judged on a different standard than other infractions. And again, since the federal government is mandating this, I can’t see any way that this isn’t a violation of civil rights.
Yeah, but you’re assuming an order of operations that to be in line with a perfect world that you imagine it. It’s far more likely to be the opposite way.
As you’re well aware, rape is super underreported in general. For obvious reasons. And clearly it involves a lot of trauma.
In the case where a victim is raped and immediately goes to the police, then sure… the legal system can jump into play.
But often, that’s not what happens. What happens is the victim is embarrassed and hurt and maybe says nothing. Or if they get the courage to say something, goes to a trusted authority figure rather than an unknown law enforcement figure. So they go to a teacher, advisor, RA, dean, whatever.
The reason Obama made the changes is that often that authority figure would tell the victim “oh, well are you sure that’s what happened? Maybe we should think this through. We’d hate to cause a lot of trouble over nothing.” Sometimes this is maybe to protect the victim from further trouble. Often it was to protect the school from a bad rep. But in any case, it short circuits the very thing you’re asking for. Because it KEEPS the report from ever getting to the legal authorities.
So that’s one issue.
The other is that again, there’s no interference. There’s no reason a person can’t be investigated by two bodies at the same time with different standards. That’s why there’s the preponderance of evidence rather than the reasonable doubt difference. There’s different issues at play for criminal proceeding vs. university code of conduct. They’re not equal.
Assume this case: Frat party happens. People get drunk. Susan is black out wasted. Susan wakes up in Bob’s bed the next morning with a naked Bob. Bob says “oh that was some great sex last night. Holy shit. You rocked my world.” Susan says “who the fuck are you? Are you that guy in my physics class! I don’t even know you’re name. I never would have slept with you!” Susan then goes and reports it as a rape.
So two things are of issue here. Was there a legal rape? And did Bob violate university code of conduct.
The LEGAL proceedings might very well argue that it’s not clear “beyond a reasonable doubt” that Bob knew that Susan was intoxicated beyond her ability to offer informed consent. Bob does not go to jail. The SCHOOL proceedings on the other hand, might find that Bob should understand that the university does not consider it appropriate to have sex with a stranger you met at a party when alcohol is involved. Bob gets expelled.
MAYBE, you might argue that this is unfair. Sexist even. You might argue that Bob and Susan are both drunk, both impaired, and one’s has no more responsibility than the other. There are personal moral decisions to be made there.
BUT no matter what, the university is still well within its rights (and I’d say responsibilities) to act on such things in some way. And in order to do that, they need to investigate. And they need to do so immediately and outside of the purview of the legal investigation because it is unreasonable to expect that life is going to proceed as normal for Susan or Bob or any student that happens to encounter them. The legal investigation and trial could take months, or even years. We can’t just have the two of them sitting in physics like nothing happened.
importantly
“In short, this specific infraction is forcibly being judged on a different standard than other infractions. And again, since the federal government is mandating this, I can’t see any way that this isn’t a violation of civil rights.”
No it’s not. Again, school proceedings are not legal proceedings. I don’t have to determine that a student is cheating “beyond a reasonable doubt.” Hell, I don’t even TECHNICALLY need a preponderance of evidence. I can turn you in for citing something incorrectly.
You are ignoring the specific point I am making. Your university can decide any standard it wants for cheating ranging from “it’s possible” to “absolute, undeniable proof.” And that is true for every single infraction except for sexual assault. The Dear Colleague letter mandates a specific standard that is not consistent with the Constitution. When the government mandates that specific action, it turns your university into a de facto agent of the government in regards to that infraction, and thus the mandated actions can’t violate civil rights.
And you keep saying there is no interference, but that simply isn’t realistic. If you are threatening to expel me if I don’t participate fully in a university investigation, without the presence of my lawyer, you are engaging in interference. You are eliciting a response, that could later be used against me in court, via coercion. Similarly, if you find me guilty because a witness was unwilling to speak to a disciplinary panel (for whatever reason), that finding of guilt will be brought up by the prosecution during trial, even though it was made in a situation where I couldn’t compel testimony from a defense witness.
Similar scenarios can be constructed that would harm the accuser’s case in a later trial. The simple fact is that any investigation by an independent body, that isn’t required to follow the same rules of due process, can interfere with a criminal investigation / prosecution in a number of ways. And while I think universities / schools should, by law, be precluded from doing simultaneous or prior investigations, for now I am only arguing that the federal government requiring these things is a violation of civil rights unless all due process rules are enforced as part of those investigations / findings.
Finally, I really wish you would stop raising the specter of universities discouraging students going to the authorities. I have already agreed with you as firmly as possible on that point, and even argued that there should be severe criminal penalties if anyone is discovered doing it. Every time you bring it up after determining we are in full agreement it feels like you are building a straw man.
And really, just to get it off the table, if the Dear Colleague letter had been one line that said: “Hiding sexual assault accusations or discouraging victims from reporting in any way is a violation of Title IX and you will be prosecuted to the fullest extent of the law if you do so,” I wouldn’t object to it in any way and I would be firmly and vehemently opposed to what DeVos did.
But I’m not…. I’m saying what you are arguing ISN’T what Devos is doing. I’m saying Obama’s changes were BECAUSE of the discouragement. That was a problem. You agree. I’m saying her solution is “get rid of his changes” which doesn’t actually fix the problems you are arguing. It just undoes his.
As for the issue of interference. Again, you’re assuming that the legal proceeding and the university one are related. They’re not. You don’t have a constitutional right to attend my school. I can absolutely compel you to behave by my rules.
Here’s an example that might make sense. My university is ANTI-condom. By living at Duquesne, students run the risk of having their dorm rooms searched at any time and fined if condoms are found. I am 100% against this. I find it outrageous, abhorrent and damaging on SO many levels.
However, it does NOT violate 4th Amendment protections. Because you don’t have a RIGHT to live at or attend Duquesne. So say you are under criminal suspicion for a crime… I dunno… selling heroin. The authorities don’t have enough evidence for a warrant yet. And thank god… because you have 1000 kilos of heroin under your bed. As the university I can still search your room just because I think you might maybe have condoms. Cuz that’s against our rules.
Its just a different thing.
Again, my school is 100% in the wrong here. I don’t agree with the policy in any way shape or form. But its still a different standard than the criminal one.
I for one really wish the DoE made a regulation that said students 100% had the right to own condoms. I’m also 100% behind the DoE making regulations that say “the university can search a student dormitory under these ten and only these ten circumstances.” And those rules DON’T have to be the same as the ones for granting warrants. Because criminality and “rights as a member of the institution” are just different things.
Strauss says: “And really, just to get it off the table, if the Dear Colleague letter had been one line that said: “Hiding sexual assault accusations or discouraging victims from reporting in any way is a violation of Title IX and you will be prosecuted to the fullest extent of the law if you do so,” I wouldn’t object to it in any way and I would be firmly and vehemently opposed to what DeVos did.”
yes. And I addressed that a while ago. I said that if Obama’s changes were simply “all allegations must be reported” your issue largely goes away.
(meaning allegations brought to the university must be reported to legal authorities. That might not have been clear. But like the same way that a hospital is legally bound to report all allegations of child abuse)
I’m running out of ways to phrase this. They become related the moment the federal government requires your university to take specific action regarding specific infractions.
If the federal government didn’t require Duquesne to investigate and didn’t require a specific standard for guilt while engaging in an investigation, you would be right, the two investigations would be entirely unrelated. At that point, I would still personally believe that universities should be prohibited from doing independent investigations on matters relating to felonies, but that personal belief wouldn’t be directly relevant to this discussion.
But that isn’t the case. Until this morning (yesterday?? I lost track), the federal government was requiring Duquesne to investigate and judge these specific actions based on specific standards of evidence. That requirement by the federal government intertwines the state response to the accusation and the university response.
And I’m saying it DOESN’T. The federal government requires us to do LOTS of things. (and frankly sometimes we… that is duquesne specifically… don’t listen, which is another can of worms on a completely unrelated issue)
“And I addressed that a while ago. I said that i Obama’s changes were simply “all allegations must be reported” your issue largely goes away.
meaning allegations brought to the university must be reported to legal authorities.”
Except both statements here are factually incorrect. I am assuming you haven’t had time to read the Dear Colleague letter. I can’t blame you. It is long and cumbersome. I’ve read a good chunk of it since your wife was kind enough to link to it. I haven’t read all of it, but I have read the sections that cover these two statements.
Obama’s changes were a lot more intrusive than just requiring allegations be reported. The letter explicitly requires an investigation, explicitly requires that it is not put off until after a trial, explicitly prevents cross-examination of accused and accuser, explicitly prevents revelation of identity of accuser (when possible), explicitly allows lawyers to be banned from the proceedings, and explicitly requires the “preponderance of evidence standard.”
Furthermore, the letter explicitly states that allegations must NOT be reported to legal authorities if the complainant doesn’t want them to be reported.
Those are undeniable facts based on the Dear Colleague letter.
I’ve not read it all. But I was actually aware of all of those issues.
What I’m saying is three things.
1) Devos didn’t actually address them. She said that the current system was unfair to accused (and the accuser) because university personnel aren’t trained to deal with is… patently false. As I said, Danielle was literally in that training meeting today. If Devos understood the issue well enough to have addressed them, I’d actually be more inclined to being on your side here. It’s why I wouldn’t just outright agree with Samantha above. Like you’re totally doing a better job of being Secy.Ed. than Devos is by even bring that up.
2) Those things being true DOESN’T constitute an interference with the criminal proceedings. At least most of them don’t. One could argue that the part about not reporting if the accuser doesn’t want it reported could be argued to be hampering the investigation. But that’s a non-issue, because that’s true whether Devos’s changes happen or not… There’s just not really a case without the accuser backing you. All of the other issues constitute a different matter (adherence to school policy) than the criminal one (adherence to law). Which is why I brought up the academic integrity issue. The standards of proof for an in school plagiarism charge are WAY lower than the standards for legal copyright violation. That’s by design. And the two investigations can totally proceed simultaneously…. and even inform each other.
3) That said, making specific changes to the policy are completely reasonable. Like if you wanted to argue that schools were required to allow the accused to bring legal counsel before answering questions… I’d entertain that. I don’t know that I’d agree. But it’s a reasonable point. Again, this wouldn’t just be limited sex crime allegations though. Your point would stand for the plagiarism example too. We don’t do it… because we’re not a legal proceeding. But you at least have a point to be considered. Which again… means you’re putting more thought into this than what Devos actually SAID.
And that’s my real issue. I’m not saying the rules are perfect. They’re not. I’ve said a couple times they almost certainly don’t belong under Title IX no matter what since they’re honestly not really about discrimination… unless you squint REALLY HARD. But that’s not what I’m asking here. I’m saying can anyone defend HER specific argument… which even you’ve said, you don’t think she really understands what she’s saying.
I don’t think she understands what she is saying, but I think she is correct by accident. You described her argument as a claim that the Obama letter put an unfair burden on the accused. Because I believe that the Obama letter makes universities a de facto agent of the state (an argument that she didn’t even vaguely attempt to make), I believe that it is unconstitutional to put any burdens on the accused that don’t align strictly with due process and civil rights regarding the justice system.
So, yeah, I can defend her specific argument, even while believing that all the supporting evidence she personally gave for that argument is hogwash. Like I said, I think she is correct by accident, not because she is in any way informed. This is also the reason that I think pretty much all actions she takes regarding this decision will range from barely reasonable to completely awful.
fair enough…. except for one part. By the issues you specifically called out, they aren’t an agent of the state because the results on the investigation aren’t required to be shared (and in fact, are prohibited from being in some situations). Like I don’t necessarily agree with that implementation. But it’s relevant to your argument.
They aren’t required to report, but they can still be compelled to produce by a court of law. Thus, it creates the same problems. Students are forced to participate in an extra-legal process that denies civil rights, via coercive methods, due to the dictates of the federal government. All elements of that federally mandated process can be then used by either party in a court of law.
and again, I’d say that’s a fair criticism. But not the one she is making. At best, as you said, she is “right on accident”
I was going to weigh in but Michael Strauss covered it pretty well. The Obama policy was wrong and a great overreach. I can tell you from personal experience that false accusations are one of the primary weapons in people with borderline personality disorder. There aren’t many good answers here, but our criminal justice system was design to free many guilty men in order to prevent one innocent one from being locked up.
Except that, as I pointed out in response to Michael Strauss… Devos didn’t actually address any of that at all (which he acknowledges). Neither Title IX nor Devos’s comments have anything to do with the actual justice system.
Right. So if a crime occurred why not just prosecute it in the actual justice system.
A parallel to this would be the government directing banks to seize any assets of a person accused of fraudulent behavior. No due process, no representation, just a single person at the bank acting as judge, prosecutor and investigatory. I bought a bicycle off you, but had buyers remorse the next day and wanted my money back. You said no, so I reported you to the bank and they seized your money. This rule may help stop fraud, but it also transfers a great deal of power to me in this scenario.
They do…. they’re separate instances and investigations.
If you’re accused of a crime (any crime) that is also against school rules. I may kick you our of my school even if you’re legally innocent. Different standards of proof. The rules and the laws are different things. Sometimes you’re just in violation of both.
If schools did this voluntarily then they would be well within their rights to do so. But it is wrong for the federal government to force schools to implement this flawed approach.
And this was done not only without congressional input but also without even public comment or debate. Read the Harvard law faculty open letter regarding this issue. This isn’t even something just conservatives oppose or opposed because Obama did it. It is poorly implemented unworkable policy
this has all been dealt with in detail in other comments in (this admittedly long and confusing) thread. You’re not alone in saying these things. But they’re not cut and dry the way you’re implying. It doesn’t work like that. It’s not an unworkable policy. It’s working just fine, actually. There could be improvements, but it’s not really having the negative effect people are worrying about. possibly others.., and arguably ANY negative effect is bad. But that’s a different issue. Because most imporrtanly, Devos didn’t actually say ANY of what you’re saying here.
And despite the speech she does not plan to rescind the policy just revise it after public debate.
I will grant you that she has not officially implemented any policy yet. That said she doesn’t inspire a lot of faith here. Partly because of that speech. But also because of BEARS.
Honestly I have more faith in her than mr. Duncan. Isn’t hard to find a bunch of dumb quotes from him. Especially if you are a white suburban mom
You’re right. My heart goes out to all white suburban moms. The single demographic group most disproportionately affected in the entire American educational system debate.
(I’m sorry. I know I promised to not be unnecessarily combative on this post, but I simply don’t have a better response here than that)
And as usual, when we even partially agree on a topic, you just push it well beyond reason. DeVos has done nothing to engender even the slightest faith that she will make good decisions regarding education policy.
She is completely on the side of any organization that is for-profit, at the expense of students. Her most recent action was to dismantle a whole bunch of rules that protect students from predatory lenders and to refuse to work with the one government organization that actually has the necessary tools to prevent illegal loan practices.
She supports charter schools not because there is evidence that they are superior to public schools, but simply because she automatically supports private endeavor over public. The fact that, even in the most generous studies, charter schools only barely perform better than public schools doesn’t concern her, despite the fact that charter schools get to pick and choose their students while public schools have to take all students.
Any faith in her is not earned by any action she has taken before or after becoming Education Secretary.
Odd for me to be in the position of defending DeVos, but I think miscarriages of justice can arise when education institutions have to turn into quasi-judicial entities in ways they are not prepared for, and that certainly seems to be a consideration. I don’t see why that should be a “straw man”.
In particular I find the rhetorical question “How do you come out in favor of the rights of the accused over the accuser in a rape case?” odd, or at least highly highly prejudicially formulated. Is it a matter of a conflict of rights at all to wonder whether the accused gets due process rights they would get in the criminal justice system? Should an accused have no rights when the accusation is “rape”? Should there be no protections against false accusations? That seems absurd. But then you have to face the question of whether the systems that have resulted do protect rights of the accused.
I have indded encountered the argument that the system *should* be biased in favor of the accuser, for various reasons. Proponents of such a view are willing to tolerate some innocent people getting punished as the price of supporting sexual assault victims where most accusations are not false. Deliberately allowing innocent people get punished in defense of a greater good may be morally OK according to utilitarianism, but is generally considered injustice.
Anyway I don’t see this position as indefensible. One might argue for example that universities should just turn sexual assault accusations over to the police and get out of the business of constructing parallel criminal justice systems with quasi-judicial proceedings.
Here is one longish piece on the subject if you’re interested.
http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html
Another piece making the argument that things have gone wrong:
http://www.nybooks.com/articles/2015/02/05/rape-campus/
Another woman arguing against the government push to enforce Title IX this way:
https://www.nytimes.com/2015/02/08/opinion/sunday/the-best-way-to-address-campus-rape.html?
So obviously there’s a lot here. But really I return to my points in the Michael Strauss thread above. It is unreasonable (for reasons I outlined there) to think that schools don’t have to address the issue. They just do. They weren’t. Maybe there are better regulations they could use. Maybe not.
But the investigation and rulings of the school have no bearing on the legal ones. One can certainly violate one without violating the other. Devos didn’t offer better regulations. She argued that the schools shouldn’t be addressing it at all. She’s wrong.
Chris Maverick I can’t accept your formulations as fair paraphrases of the positions involved. For example when you say:
“Basically Obama essentially made it policy that colleges and universities had to take accusations of sexual harassment seriously. That’s it. He set guidelines for investigating rape charges. Which, for the most part were basically: “you know… do it…” and also “and if you find that you have a rapist, do something about it.” That’s pretty much all he did.”
No. This grossly misrepresents what Obama did (or, relatedly, what colleges have done in efforts to avoid charges of Title IX violations due to campus sexual assaults).
Opponents of the action believe it has mandated (or perhaps just inevitably resulted in) an unjust system of kangaroo courts for sexual assault that violate rights of the accused. This is an issue that has been brewing for some time. This objection has been widely voiced, not just by fringe groups of “Men’s Rights” advocates. (For example, 24 members of the Harvard Law faculty signed a public letter urging Harvard to rethink its revised Sexual Harassment Policy, complaining that “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”)
“[DeVos] argued that the schools shouldn’t be addressing it at all. ”
This also seems completely unfair as a paraphrase. I simply can’t find any basis for it in the New York Times article you linked. All I can see is a pointer to a yet-undetermined change in regulations coming down the road.
I think the specifics there are spelled out in more detail in the Strauss thread.
Yes, you are correct. Specifically on the “kangaroo court” argument. Except as we sort of debate in that thread… that’s something that has to happen inside of the confines of a university. He set guidelines for how those proceedings should happen. One could argue they’re too strict. One could argue they’re not strict enough. One could argue (as Strauss is) that they de facto represent an illegal investigation of the accused outside of his constitutional rights (something i disagree with for reasons explained up there… but it’s a valid point).
Devos didn’t actually make ANY of these arguments.
I really do not understand what you are saying here. The NYT article you cite says “in a strongly worded speech, [DeVos] made clear she believed that in an effort to protect victims, the previous administration had gone too far and forced colleges to adopt procedures that sometimes deprived accused students of their rights. “Through intimidation and coercion, the failed system has clearly pushed schools to overreach,” she said in an address at George Mason University in suburban Arlington, Va. “With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”
All it announces is that she is going to revise the regulations. She nowhere says that educational institutions don’t have to deal with it, or anything like that.
This is completely defensible position, it seems to me. It has very little in common with your distorted paraphrases which make it seem somehow outrageous.
There is little direct quotation in the NYT piece, but you can read DeVos’ actual remarks here:
https://www.washingtonpost.com/news/grade-point/wp/2017/09/07/transcript-betsy-devoss-remarks-on-campus-sexual-assault/
Because she’s wrong. There’s a difference between civil rights and following a code of conduct. Academic hearings are not the same thing as justice (nor should they be)
I have admired Strauss’ comments. But I would not argue that colleges have to respect constitutional rights simply because they are constitutional rights — and DeVos does not make this argument.
Rather, I think they have to avoid gross injustice simply because injustice is morally wrong. The argument is that these pressures and regulation lead to a system in which someone can suffer extremely serious consequences: being expelled and having their reputation ruined, tarred for life by a “conviction” (as it will inevitably be seen) as a rapist or sexual assault perpetrator — but all on possibly flimsy grounds by a fundamentally biased process. That is unjust and so morally impermissible. If it makes sense to have those rights in criminal trials, then you have to have them in any quasi-judicial proceeding that can have similar consequences for basic fairness. They are there to protect against injustice.
That would be my best version of the argument anyway.
BTW it does not seem obvious to me that colleges have to set themselves up as quasi-judicial investigators of crimes of sexual assault. They could just refer accusations to the police and only take action on code-of-conduct violations when that process yields a result.
Except there isn’t really a lot of evidence of that happening. No more under the Obama regulations than there was before. The regulations are there because of an underreporting (and in fact burying) problem. To say the “clearly pushed the schools to overreach” is just untrue. There’s actually still an underreporting problem. ARGUABLY there is a problem in that codes of conduct have moved towards an “explicit consent” model… but that was happening before Obama and I’d argue isn’t really “a problem”.
For it to be a “problem” you have to equate expulsion from the university (or honestly, other sanctions, because in most cases, expulsion doesn’t happen. There are other sanctions) as equivalent to a “conviction” and there really isn’t a lot of that. It’s what people are WORRIED about. But there’s not a lot of evidence of it.
Like, you can be expelled or many code of conduct violations. Grove City basically has rules against being gay. I know an individual who was expelled when it was discovered that he was paying for school with his side job as a gay porn star.
Where Michael Strauss has a point is that the federal govt didn’t tell Grove City to be anti gay porn. They are telling the schools to be anti-rape and how to determine if a rape has occurred. To argue that the DoE should revisit (and improve) those regulations is not the same as saying that the institutions are “forced to be judge and jury”. They’re just separate issues.
The question is what is the civil rights violation you are arguing? Are you arguing that the proceedings are unfairly implemented? That they should be improved? Maybe. Are you arguing that the institutions shouldn’t have them because they should be the sole purview of legal authorities? No! Because even if they are unfair, they’ve demonstrably done more good than harm. So the question is one of improvement not negation.
“Demonstrably done more good than harm”? Perhaps, but what is the demonstration you are referring to?
Again, the bad consequence is not merely expulsion. Much worse is irrevocable damage to reputations.
I guess you’re saying: sure, you might wind up sacrificing some innocent people, but that’s fine, because it’s for the good cause of reducing campus sexual assault and supporting sexual assault survivors (assuming it does have this effect, itself debatable).
As I said elsewhere, some people would be fine with that. (Though if you’re the one being sacrificed, probably not). That’s the view of utilitarianism. But other moral intituions say that if the procedures lead to injustice of that magitude, it doesn’t matter if they do more good overall — you just can’t do it.
So my point: it may be OK, but it’s not *OBVIOUSLY* OK. It’s not some kind of ridiculous WTF absurdity if folks say, wait a minute, this is not OK, it’s leading to injustice.
Here it turns out you also have disagreements about certain facts with DeVos. That’s fine, one can argue about facts. Again I would say it’s not some kind of obvious WTF absurdity to take her view.
That’s what gets me. You made it sound like there was something ridiculous and outrageous about her position. I just don’t see it. It strikes me as an eminently reasonable position with which I have a lot of sympathy.
I do think it’s ridiculous. If nothing else she’s shown less understanding of the fact that most people here have gotten with even a cursory google search.
But what I did what rant about her and ask for public discussion. Which I’ve gotten. I’m not at all mad about that. And I’ve gone out of my way to be way nicer about it than I usually am.
But my key thing here is even the people defending what she said are for the most part not defending what she said. You’re defending what you want her to mean.
One must allow for a certain amount of bullshitting in the remarks of a political appointee. But with that said, I see little direct quotation of what she said on any side in this dicsussion. I posted the transcript of her remarks to try to remedy that. Can you indicate what she actually said that supports your paraphrases? (You will recall, I found your paraphrases unfair)
Devos: “Here is what I’ve learned: the truth is that the system established by the prior administration has failed too many students.
Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved.
That’s why we must do better, because the current approach isn’t working.
Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate.
Where does that leave institutions, which are forced to be judge and jury?
Where does that leave parents?
Where does that leave students?
This failed system has generated hundreds upon hundreds of cases in the Department’s Office for Civil Rights, mostly filed by students who reported sexual misconduct and believe their schools let them down.
It has also generated dozens upon dozens of lawsuits filed in courts across the land by students punished for sexual misconduct who also believe their schools let them down.
The current failed system left one student to fend for herself at a university disciplinary hearing.
She told her university that another student sexually assaulted her in her dorm room. In turn, her university told her she would have to prosecute the case herself.
Without any legal training whatsoever, she had to prepare an opening statement, fix exhibits and find witnesses.
“I don’t think it’s the rape that makes the person a victim,” the student told a reporter. She said it is the failure of the system that turns a survivor into a victim.”
This is the current reality.”
etc. etc. etc.
I’m still puzzled. What in that supports your paraphrase?
This is clearly a political speech. It’s trying to make the case that the system is broken for all concerned. For maximum sympathy it starts with the claim that it fails even assault survivors, trying to highlight that case with anecdotes.
I would expect the anecdote-based point about failing survivors is the most dubious factually. But that’s the way it goes in politics. If true, the anecdote does illustrate the rickety nature of the improvised ad hoc judicial systems that have resulted.
But actually I notice your paraphrases don’t even acknowledge that she makes this claim about failing survivors at all.
The argument about rights of the accused that I focused on is there in her speech.
The suggesting about it leading to a mess of lawsuits for colleges (so failing them as well) is also in there and not absurd.
So still in the dark how you are the one looking at what she actually said.
I admit that I didn’t address her concerns about the victims in my original post (that was by design). I have addressed them in comments since. Though mostly in the sense that her understanding of them or the process is hella broken. I admit that I’m sort of being unfair. But I’m a blogger. I’ a cultural critic. I’m not a reporter. And she’s the secretary of education. She’s not even a politician. She doesn’t get elected. It’s not her job to energize the base. This is why the Secys are appointed by the guy elected and don’t run themselves. It is her job to understand these things and work to make them better through implementation of policy decisions. It’s my job to complain about her and make cases for where she is being harmful. And when she misrepresents facts… and when she misunderstands the policies she’s supposed to implementing or enforcing, that’s a problem. Even in the quote above:
“The current failed system left one student to fend for herself at a university disciplinary hearing.
She told her university that another student sexually assaulted her in her dorm room. In turn, her university told her she would have to prosecute the case herself.”
Except that’s explicitly what the Title IX regulations are designed to prevent. Like when Michael Strauss and I were discussing them above, this issue came up. She DOESN’T get to prosecute or confront the accuser and vice versa. Maybe its a problem that there’s no lawyer present, but Devos never addresses that at all. She thinks that the students are prosecuting the case. That’s not what happens. EVER. It’s the exact opposite. There are investigations by the school AND an independent investigation (and possibly trial) by the state. Maybe it’s a problem that there are two issues. Maybe its a problem that there’s not enough “due process” for the accused in the university investigation. But NONE of that has to do with the fact that “Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served.” The exact opposite happens.
And yes… these are subtle distinctions in some ways. And yes, maybe lawyers need to be involved in order to hammer them out. I would even entertain the argument that maybe there should be congressional LAWS passed rather than DoE regulations (this is complicated… and not cut and dry… since again…. its about codes of conduct regulations… not the laws… which we do have… but again… she NEVER addresses this at all). So yeah, this is complicated stuff with no easy answers. But it’s literally her job to understand it. And she clearly doesn’t.
This seems to describe the case referenced by DeVos. The incident took place in 2014, so after the “Dear Colleagues” letter, According to this article, SUNY has since modified their policies in response to urging from New York State Governer Andrew Cuomo.
http://www.lohud.com/story/news/local/westchester/2015/02/22/stony-brook-student-prosecute-alleged-sex-attacker-lawsuit-says/23743857/
Also, if you’re interested, the libertarian journal Reason has this list attempting to identify every absurd case referenced in DeVos’ speech in support of the idea that the result is a broken system for everyone concerned.
http://reason.com/blog/2017/09/07/devos-title-ix-example-cases-rape
Anders Weinstein case 1: title ix says nothing about whether students should be allowed to have counsel or not. That’s completely up to the university. Solution: this university can allow students to have counsel.
Case 2: again, not the fault of title nine. This particular University and its administrators chose a particular viewpoint to believe.
or not allowed lawyers…. really there are lots reasons to NOT have the lawyers too. It could go either way. But really, the point is, Devos shouldn’t be citing anecdotal data anyway. That’s not how her job work.
In any case, the SUNY student was failed by the system not because o Title IX, but because those implementing the system failed her at every turn. She went to the police and that should have short circuited everything right there. The police are outside the purview of Title IX. They told her she had no case because she didn’t scream loud enough. But that’s not how rape works. That was a bad cop. SUNY sounds like they have a poor implementation of the disciplinary action committee. THat’s not Title IX being broken. That’s SUNY being crappy. That is under Devos’s control. Her job is to make them fix it.
Again… she’s not a politician.
This response seems to miss the point. Sure colleges are free to institute fairer procedures. But as things stand they are also free to institute unfair procedures (“kangaroo courts”). Do you mean the guidelines should be changed to PROHIBIT absurd procdedures such as the one in that SUNY case (the one which, I can’t help noticing, Mav confidently but completely wrongly denied could ever happen under Title IX requirements?) Then you would be with DeVos, not against her, in claiming the requirements should be changed to avoid absurdities like this.
The position is that that the pressure to comply with Title IX as interpreted has led educational institutions to implement a system of amateur-hour quasi-judicial procedures adjudicating accusations of sexual assault. This has led to a broken system which in many cases is highly biased and fails requirments of basic fairness. In many cases it violates the rights of the accused, leading to some absurd results (see the Reason site’s list of cases). Results are frequently subject to further lawsuits which colleges often lose, thus throwing out results and failing victims. Some change is needed to get out of this absurdity.
I concede there is some unfairness in laying this *all* to Obama-era regulations. Sure that is just something Republicans do. Some of the brokenness stems from larger movements (e.g. the push for affirmative consent policies) which lead colleges to adopt stronger policies favoring accusers than actually required.
But remember, DeVos has no power to change law at all –the only thing she can do is alter regulations.
I continue to believe Devos position is very reasonable and defensible. It is very widely held, as I tried to point out, certainly among conservative sources, but please also check out pieces I cited which were published in more liberal-leaning publications, such as those by Emily Yoffe if you want more background about where DeVos is coming from.
I never said anything COULDNT happen. That’s ridiculous. I can go stab my neighbor. That doesn’t mean it’s not against the rules. SUNY did the wrong thing. That’s not a flaw in the rules. Thats someone not following them. It’s like there should be a government department set up to force them to. Which there is. She’s supposed to be running it.
(and it appears that they have done this)
Chris Maverick Why do you say that SUNY violated any rules with their procedures?
Again, the general claim is that the result of compelling colleges to set up these quasi-judicial procedures for adjudicating rape claims in order to comply with Title IX and pushing them to favor the accused, the inevitable result is these amateur-run or poorly-implemented systems. So some change is needed.
“THat’s not Title IX being broken. That’s SUNY being crappy. That is under Devos’s control. Her job is to make them fix it. ”
Right, isn’t that agreeing with DeVos and precisely what she is doing? The system resulting from the current system is broken because it allows or encourages things like the SUNY case to happen.
PS I edited one of my comments to change “politician” to “political appointee”. But clearly this was a political speech. I don’t think it is at all inappropriate to rely on anecdotes in such a speech. It is just normal political persuasion used on both sides. And ultimately enough anecdotes, each of which is individually something that is outrageous enought that it should NEVER happen do make some sort of a case for change.
No. The regulations… specifically the ones Michael Strauss quoted… specifically say that the proceedings should be for the university to investigate and the disputing parties should not cross examine each other. That’s what they say (good or bad).
The SUNY case had the the university telling the victim that if she wanted to do something she had to prosecute the case herself. That is they worked in direct opposition to the regulations. That’s not the regulations being broken (which they may or may not be) – that’s the university not following them.
Which means the entire anecdote is irrelevant to the case that Devos is making. It’s a rhetorical fallacy. One that I’d use in my class if it weren’t so patently ridiculous.
It actually is a problem for her to be making political speeches like this at all. But that’s a separate issue. The dept heads aren’t designed to be politicking. They’re supposed to be domain experts who inform the political decisions of the executive. Which is why people had a problem with her appointment in the first place.
I don’t see that at all. Any cabinet head is of necessity in a political position. They are not just expert consultants. Their job is to implement priorities of the administration and they are otherwise supposed to support the whole administration. Being able to make a public case for their positions is part of the job. So there is nothing surprising to me at all about a cabinet head giving what I call a political speech in announcing a policy.
I never said it was “surprising”
but that’s NOT the job. That’s how the job was filled. But that’s not the job. They’re not meant to be minions. They’re designed to be ADVISORS. The ideas is *supposed* to be that they are domain experts put in position to manage departments under the executive branch that president isn’t (and shouldn’t be) a domain expert on. The same way it’s supposed to work in any organization, actually. The domain expert on education is supposed to run studies and analyze data and come up with best practices suggestions which they go to the chief executive with for approval and funding and then implement them. The domain expert on energy is supposed to do the same thing for their department. The Joint chiefs are supposed to do this for the military. etc. etc. etc.
The same thing happens in companies, really. If I’m veep engineering or chief technologist, it is my job to figure out what my resources my department needs to best fulfill its mission. And then I work together the budget and I go to get it approved by the CEO. There may be business concerns that mean I can’t get my budget approved or that my needs get pushed down the priority chain in favor of the needs of the advertising department or the accounting department. The CEO decides that. And fine. This is why we have meetings.
What is the WRONG thing to do is for the CEO with not technical experience to decide “I want this company to build software in COBOL. And they should be using Commodore 64s to do it!” So then he hires a woman who also has no technical experience but is the sister of a dude who gave him a nice birthday present once, to be the new chief technologist and enforce his Commodore 64 and COBOL agenda. And then her way of doing that, is to go out and give speeches to customers explaining that “the problem with Java is that there was this one programmer who wasn’t using semicolons correctly in his Turbo PASCAL code and it didn’t compile. So therefore Java sucks. COBOL all the way. And ummm… Commodore 64s… I dunno… just because! AmIRite!!!! Also, can we get some guns up in this place? Because I’m really worried about bear attacks.”
Because that’s literally what happened here.
Sorry, I don’t see it this way at all. That is, I see no evidence that DeVos is some complete incompetent coming in to make policy on stuff she doesn’t really understand with this.
I would certainly expect she is informed by right-wing sources, among which her view is pretty standard (check National Review after her speech for example). So you could say she has imbibed a certain party line, drank a particular flavor of kool-aid, in taking this particuar view of the weight of the anecdotes. But as far as I can tell she has come to understand the issue, in the way a cabinet secretary — a kind of executive, not a technical specialist — normally does.
And as I’ve tried to point out, you can find this view taken by lots of other non-right-wingers as well (I would start with Emily Yoffe who has a more recent piece in the Atlantic). For example the Washington Post editorial board applauded her remarks. And I would never mean that to be telling of anything about the *merits* of the view. It’s more in support of a kind of meta point– to me, her position is a very standard, widely shared, one, of course by conservatives especially, but also by many more liberal sources one could cite. I’ve been hearing this complaint about the results of Title IX for some time.
So I just can’t see anything meriting “WTF” about it in the least. Sure her actual speech may include lots of political persuasion which does not constitute rigorous argument. Duh. That’s the way these things go.
There are liberal people with a similar view. Yes. Not as many as she (or you) are implying. But some. But they’re not the same view. They’re SIMILAR. As Michael Strauss pointed out. Paying attention to what she actually SAID its clear that she doesn’t understand the subtle nuances in what she’s saying vs. what they are saying. It feels like maybe you don’t see it either. And it’s actually fine if YOU don’t… you’re not the secretary of Education. SHE IS!
Like, I actually don’t have a problem with YOU as a private citizen having the concern you do. In fact, even though I made fun of him, I don’t have a problem with Jeffrey Kertis having the view he did. But neither of you are qualified to be Secy.Ed. Nor do you pretend to be.
She is Secy.Ed. but as Strauss pointed out, in the past 9 months she’s provided no evidence whatsoever that she understands the specifics of the workings of the department that she is supposed to be running. And in fact, quite often the exact opposite. Like he said, BEST CASE scenario, she’s “right on accident” here. And while that’s maybe slightly great if you agree with her, it’s super damaging because in that best case scenario, you have a person who doesn’t understand the issue they’re trying to fix, given the full resources of the government to just sort of willy nilly do whatever.
In my previous example… there are good reasons to use COBOL. It’s a fine programming language. Java is certainly not perfect. But if the person making the edict to switch from Java to COBOL is using the reasoning “because someone screwed up their semicolons in Pascal” then some shit is probably going to go wrong in the implementation.
That just seems prejudiced to me, a projection of (perhaps justified) contempt for DeVos based on other things than what she said. I sure don’t find any case for it in your remarks (starting with your ridiculous false paraphrases in the original post, for example that she wants to do nothing about the problem).
As Harvard Law professor Jeannie Suk Gerson (one of the signatories of the Harvard Law professor’s letter re Harvard’s policy) says here:
“In short, DeVos appears to be proceeding exactly as an agency head should: give notice, take comments, and explain why a given policy is being adopted. But the intent to depart from an Obama-era policy, which itself did not go through those steps, will undoubtedly garner outrage and dismay. … If these statements were made by a different official in a different Administration, they would seem rational, uncontroversial, and even banal. The idea that an adjudicatory process should be fair to both sides is about as basic as any facet of American law can be …”
https://www.newyorker.com/news/news-desk/betsy-devos-title-ix-and-the-both-sides-approach-to-sexual-assault
Another cautiously optimistic view that DeVos might improve the flawed system that Title IX pressure as wrought:
“And yet it is also true that the current regime under which campus sexual-assault allegations are investigated and adjudicated is seriously flawed. Before the Obama administration instructed colleges and universities that they had to take sexual-assault allegations seriously — or risk losing federal funds — the system was way too disposed to discourage complaints. But the Obama administration’s move also prompted an overcorrection at some institutions that failed to do enough to protect the rights of students accused of wrongdoing.
Which is how I find myself in the unexpected position of writing not to lambaste DeVos but to praise her, albeit tentatively and preliminarily, for announcing plans to rework the department’s approach to Title IX,…” [Ruth Marcus]
I also am in this unexpected position! I think she expressed a reasonable view.
https://www.washingtonpost.com/opinions/betsy-devos-could-change-sexual-assault-policy-for-the-better/2017/09/08/893adc04-94ce-11e7-89fa-bb822a46da5b_story.html
Hmm I guess all publications use the same stock image for their thumbnails.
Except those people are doing he same thing that you are. That’s why they’re cautiously optimistic. She didn’t actually say any of the stuff they want.
What she said was that rape and assault are bad (I agree)
Then she said and here are a bunch of problems caused by the “rule by letter” of the Obama administration.
Only the problems she mentioned weren’t caused by it. It was a bunch of false equivocations. That’s why I made the cobol example. Those things may or may not be true. But there’s no linkage.
The reason Gerson is wrong is because she’s speculating that now Devos will do the right thing and implement policies with the input of the community… which I agree with her… is how it should work.
Except that’s not Devos said. What she said was we need to overturn the letter and do something different. She’s doing the equivalent of “repeal and replace Obamacare” and with the same problem. That should never be the goal. The goal should be “fix problems”.
Again, Devos is not a politician. She doesn’t need to announce anything. She can’t be elected so it doesn’t matter. If she were serious about doing what Devos is talking about then what you do is announce a committee to be formed to look into sexual assault on college campuses. Then you ask for input. You build policy. Then you announce policy.
But when you’re doing that, at no point do you ever worry about “overturning the mistakes of the past administration.” Because you never know. You might want part of it.
To look at the past administration. That DoE implemented Obama’s signature education plan. It’s called “race to the top”. And it was built the exact way I described. Research and implementation. It certainly did not start with a speech of “and we need to get rid of no child left behind because Bush was a poopy head” and that’s good because IT’S BUILT ON TOP OF NCLB. They kept what they liked and improved on it. And NCLB was built the same way over Clinton policy.
Because that’s how it works. Which Devos would know if she had any idea how to do her job.
…and i’m not sure that USC was even wrong. When I was an undergrad, a friend of mine called me crying, saying that her boyfriend was abusing her and pushed her into a glass table. After I got off the phone with her, I called the campus police. After that, she denied that ever happened. If the accuser/victim and accused waive their confidentiality, USC could make the results of the investigation public. It seems to be very likely that the possible victim is just embarrassed, and her denial is really the only face-saving action that she thinks she has.
I believe this is the “Dear Colleague” letter from the Obama administration about how to deal with sexual harassment/assault in Title IX schools (and the source of the current outrage). From my reading of it, it just seems to be reminding the school recipients of what Title IX includes, rather than making any new “official” policies. Seems like much ado about nothing to me…https://obamawhitehouse.archives.gov/sites/default/files/dear_colleague_sexual_violence.pdf
Steph, I am wondering if you read all 19 single-spaced pages of this. I can’t claim to have read it all myself, but just skimming makes clear there are a LOT of quite specific procedural requirements laid out.
From my other acquaintance with this issue, the most widely cited item of concern is the demand that colleges MUST employ a lower standard of proof than is used in criminal trials (preponderance of evidence vs proof beyond reasonable doubt). That is the number one thing that allows innocent students to suffer the stigma of being expelled and tarred for life as rapists based on murky facts (with lots of alcohol consumed by all parties). I gather (from the Shulevitz piece above), the guidelines also prohibit cross-examination of witnesses, something standard in the criminal justice system. I am not sure what else.
Remember, this is a very long-running controversy with many people taking similar positions to De Vos (see articles linked above). It strikes me as highly reasonable. Mav’s emotion-laden rant misrepresents the issues and strikes me as kind of worthless as argumentation.
I did read the whole thing.
My biggest question is” Is the standard of proof outlined in this letter what is outlined in the Title IX law?”
Stephanie Siler Surprising to me that you read it all. It is obviously far from “just reminding”, it lays out lots of substantive stuff about implementations.
My impression from reading the letter is that it is. But I could be wrong.
The question is, though, how does the content of this letter differ from the content of the original Title IX Act? Have you read that?
Stephanie Siler Of course none of this is in Title IX as law, that’s what makes it controversial. It is a purported exercise of the executive’s regulatory authority to interpret the law and determine how it is implemented.
This piece (from a conservative legal blogger) lays out the history leading to the idea that Title IX gave the government authority to dictate procedures like this:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/31/the-path-to-obamas-dear-colleague-letter/
To clarify: my question was: how much of this guidance in that 2011 DCL was “made up” by the Obama administration versus previously existing (including from past administration). So, that includes things like post-Title IX Supreme Court rulings, previous federal regulations, etc. Unless the writer of that letter and all subsequent reviewers of that letter were on crack, because of their constant reference to Title IX, I got the distinct impression that the vast majority of the content of that letter, including the most volatile part to many, that Obama’s administration just made up the part about how an accused student is judged “guilty” within a university setting, was based on previously existing laws/rules/regulations/etc. So, I did some research and though the content of the original Title IX act is brief, there are tons of post-Title IX but pre-Obama clarifications/rules/regulations/etc.
For example: https://www.justice.gov/crt/title-ix#10
That last thing anders said, is 100% correct, and I acknowledged it in a comment somewhere. (getting hard to keep track)
The idea of Title IX is discrimination. Not protection against assault. The Obama administration reinterpreted it to do something it clearly wasn’t designed for. And for a good reason.
But my issue here is Devos didn’t even address this as a misuse of executive power, where she might have had a point (and where a lot of people are arguing). She addressed it as unfair to the accused.
Anders Weinstein Yeah, this dude is clearly biased. For example, he claimed that, in the letter: “And perhaps, most importantly, OCR strongly discouraged cross-examination of accusers” when the only thing the Obama letter says about cross-examination is that “OCR strongly discourages schools from allowing the parties **personally** to question or cross-examine **each other** during the hearing” (**added) Obviously, his claim and fact are very different. He misrepresents other contents of the letter as well. So, I am skeptical of his other claims as well, including that the source of the preponderance of evidence, which even he admits is pre-Obama-era. I’ll have to do more research tonight…
.
That is a misrepresentation that I also made in a different thread (not out of malice, just because I was trying to process a lot of information all at once).
However, while it is misrepresentation of the precise wording, it isn’t a misrepresentation of the spirit of that section of the letter. That section explicitly says that schools can prohibit counsel from being present and since it also allows schools to prohibit parties from cross-examining each other (if it is discouraged, it obviously can be prohibited), the logical conclusion is that, at least in some, possibly many, cases students will have absolutely no means by which to perform a cross-examination (since they will be prohibited and they won’t have a counsel to do it for them).
I acknowledged your point with A, but I actually don’t have a problem with B. Cross examinations (of accuser or accused) don’t have any real reason to exist here since they’re not about legal charges. There’s no expectation of confrontation.
Even without confrontation, it can potentially uncover facts.
Accuser: “I woke up naked in the accused’s room. There was a used condom on the bed and I was sore. I threw on clothing and ran out of there.”
2 Witnesses: “I saw her running down the hallway from the direction of accused’s room that morning.”
Accused: “What posters were on the wall of the room you woke up in?”
Accuser: “They Might Be Giants and Little Mermaid.”
Accused: “That is my neighbor’s room.”
Yes, I would generally assume such details would be worked out long before any sort of hearing, but it is definitely the kind of detail that can be uncovered by a cross-examination.
Sure…. but I don’t need it. I’m not a legal proceeding. One would hope that those questions be asked by the university. One would hope that the university ask the Accuser to describe the room and the university go and make sure that it was the right room. Yes. One would hope that when the Accused says “There was no one in my room. I swear” the administration go back to the Accuser and ask for room details.
But that’s not how it has to work. And that’s a shame.
Again, non-sex crime proceeding: Five students report seeing you vandalize the orange statue thing outside of Wean Hall. School calls you in, says “we have credible reports that you did this.” You don’t get to confront the witnesses. You just have to prove it wasn’t you. It sucks… in that it’s not the same level of proof that you would get in court. But that’s how it works. If you can’t come up with some kind of alibi or something, they’re just not going to believe you.
Which circles all the way back to, there is no government body telling the university that I can’t confront the witnesses (or, more precisely, discouraging that confrontation) nor is there a government body even requiring that the university acts upon that accusation.
Heck, even if I am guilty as sin and the university knows it, if I also regularly volunteer as a tour guide, the university can decide just to let this one slide, with no consequences.
Except when there is. Which is often.
You’ve said that last part a bit, but haven’t provided details. I’d be curious what infractions are regulated by federal law and what comparable regulations exist for non-sexual assault infractions.
FERPA, plagiarism, unions, credit hours. I’ll admit I’m not an expert there. I just know we do have them.
Michael Strauss Well, it says: “While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties.” So, it’s essentially up to the schools whether to allow or not to allow the accusers and accused to have counsel. But, seriously, my reading of this letter, and again, I did read the whole thing carefully, sounds like it’s trying to be very very fair to both parties.
I do not disagree that it is equitable to both parties. I just don’t believe that equitable is acceptable. I explain much more thoroughly in my previous thread, but the short version is that I feel that since the rules are federally mandated, they must protect the civil rights of the accused as strictly as the Constitution does.
Michael Strauss well, I guess I agree with Mav that in order to provide equitable educational opportunities, universities should be less biased toward the accused (as the criminal justice system is) and more equitable toward both parties.
I’d be a lot more sympathetic to that idea if universities were required to wait until after any legal proceedings were completed before starting independent proceedings.
but that’s impractical. And unreasonable. I can say that I have been in a situation where I was personally aware of an allegation between two of my students. It was massively uncomfortable for me as the instructor. And I was not a direct party. It certainly is not sustainable for THEM to be in limbo for their participation in the educational system to deal with an issue until after a legal investigation that could take any amount of time, and a trial that could take any amount of time. It CAN’T work. Which is actually why they were able to make the case that it fit under the bounds of Title IX. Because we can consider the alleged victim of a sexual assault to be a protected class against sexual discrimination whose educational access is being hampered unless steps are taken.
The fuzziness of that reasoning actually bothers me. BUT it certainly isn’t a situation that can be ignored barring legal proceedings.
And it wouldn’t really matter. Because the outcome of the proceeding can’t affect the decision of the school. Assume a freshman is accused or rape. It takes a year to do the investigation. Another year to go to trial. Jury finds not-guilty. The kid is now a junior. The school then STARTS their investigation and after a year says “never mind, we’re expelling you anyway!” during his senior year. How is anyone served by us having kept him around for those three years. And if the accused is a junior or senior it means we never deal with the problem at all?
Can’t you retroactively revoke his diploma?
I mean, I dunno? Maybe? Probably.
But the system isn’t designed to punish him. That’s the the justice system. The university’s system is designed to protect the victim and not disrupt the integrity of the other student’s learning experience.
Again, the reason I agreed with you in Samantha’s thread is that the legal system is about justice. We often like to pretend it’s about retribution. It’s not. The victim doesn’t matter in a legal case. They’re just a witness, to the crime. Even if the crime was performed on the victim. Hence a case being “The People vs. John Doe” instead “Jane Smith vs. John Doe”.
The university’s goal is different. We’re not really concerned with punishing John at all. We just want to get rid of him to allow for the safety of our other students and Jane’s peace of mind.
So, yeah, the preponderance of evidence standard was well before Obama, too. So I wonder what exactly of Obama’s devos wants to get rid of.
http://www.theasca.org/files/The%20Preponderance%20of%20Evidence%20Standard.pdf
Stephanie Siler Wondering what precisely what you mean by “the preponderance of evidence standard was well before Obama, too” and how this document supports that. Of course the standard existed in civil cases. But my understanding is that the guidance in the 2011 “Dear Colleagues” effectively MANDATED use of this standard (on pain of threat of Title IX violation) for campus sexual assault cases for the first time.
That doc is a lot to go through, but it seems to me it is mainly concerned in making the case for that standard as a recommendation of the ASCA. Earlier case law seems to have permitted this standard (on grounds that campus proceedings are not criminal trials) but not mandated it.
No time to really study it, but I don’t immediately understand.
If you’re interested: Washington Post editorial board lauds DeVos remarks ((while the paper publishes other op-ed pieces that lambaste it)
https://www.washingtonpost.com/opinions/betsy-devoss-remarks-on-campus-sex-assault-were-right-on-target/2017/09/08/e6dc7418-940f-11e7-8754-d478688d23b4_story.html
“How do you come out in favor of the rights of the accused over the accuser in a rape case?”
This is a hallmark stance for certain women. The response from rapist men is usually “She wanted it.” But it’s these women who leap up to say, “She deserved it.”
It’s a k-hole of “just world” and counterfactual reasoning as a defense mechanism. Rather than understanding the epidemic, they explain it away.
Mav, I am not sure what you guys are doing for title IX. But that letter was a big deal for us. We get training on how to deal with title IX yearly. Essentially if you’re employed by a school and any kind of unwanted sexual behavior is told to you, even if in “confidence”. You must report it, and must include names. Even if it was you heard rumors in passing. Also the reach of the school is worldwide. Spring break in another country still falls under reporting. Not saying it is bad, in some ways not enough is being done. But that letter made a big change in climate.
I agree with all of that… so then that returns to what Devos said… where is the bad part that she is striking out against
The fact that I cannot have a confidential discussion lowers the likelihood of us hearing about issues. I also find it difficult to consider that a school has a longer reach than the state for investigation.
Oh. I see what you’re saying. The thing is, the dear colleague letter doesn’t say it HAS to work that way. That’s the way you guys chose to implement policy. I’m still not convinced that’s bad overall. But it’s still not an actual edict. And in either case that is not at all one of the things Devos complained about. That’s my real point here. Even to the extent that there are good arguments about this, she chose pretty much the worst possible one.
No, it is what a bunch of lawyers thought it might mean. Not at all interested in defending her position. I do think a better explanation could be created by the government.
And that’s fair. And always true. But again… not what she said. And in fact she implied she’d make it worse in about every possible way.
This interesting piece appeared today. Though some have hinted at similar points, I haven’t seen it made with such specific detail before.
https://www.insidehighered.com/news/2017/09/11/when-obama-era-guidelines-are-rescinded-many-requirements-campus-handling-sex
Yeah, I’m even more convinced now that USC did the right thing…
https://www.buzzfeed.com/tylerkingkade/usc-says-a-star-football-player-abused-his-girlfriend-but?utm_term=.ueo9bvjdl#.tfp0DZamV
Another endorsement of DeVos’ remarks in a generally liberal (though sometimes willfully contrarian) journal, with more interesting stuff at the contained links.
http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/betsy_devos_is_right_that_colleges_trample_on_the_rights_of_accused_sexual.html
(Recall, my big issue with Mav is not so much that I want to say DeVos is right, but that I can’t find anything WTF-worthy, much less incompetence-revealing, in what she said. To me she articulated an eminintly arguable position on one side of a difficult and important debate, a position I recognize immediately as one shared by many, many smart and informed observers on all sides of the political spectrum.)
I agree that she presented an arguable position. However, she then failed miserably to actually support her position with relevant evidence. In fact, if she did anything with that speech, she harmed the position (which annoys me greatly, since I agree with the position).
The WTF-worthy action was taking a legitimate talking point and using it as nothing more than a sound-bite to fire up the base AND doing so in such a way that created the very reasonable perception that she was supporting rapists (perception matters, darnit).
I support the position she presented, but don’t consider her an ally in any way, because she said absolutely nothing to convince me that she understands the topic any more deeply than “Obama did something, so I am doing the opposite.” At this point, since she completely failed to provide concrete reason for her decision, I am pretty much assuming it falls into the pattern of basically all of her decisions (If something increases the power of government over education and harms private education in any way, she is opposed).
Hmm, I sure understand reasons for suspicion based on DeVos’ background, but I just can’t see the speech that way. Argument by anecdote? Sure, that’s how it goes in politics.I suppose one could say the Movement for Black Lives got going primarily by “anecdote” too. Enough outrageous anecdotes conforming to a pattern can make a case that a system is broken and needs reform.
Maybe I’m just happy to project reasonability on it, based on all the people I’ve seen making the same points — and similarly tracing the blame to an “overcorrection” in response to the Title IX shakedown initiated by the 2011 DOE letter.
Since you’re into anecdotal evidence, here’s a recent case showing sexual harassment allegations not being taken seriously by the university. I only found out about this case from a vague email from the department head about sexual harassment at UoR’s BaCS dept (and had to do some online searching). The right wing is generally much better at being vocal and propagandizing their particular point. I bet you there’s been a widespread effort to uncover any potentially controversial title ix related cases by the right. If Devos actually conducts an impartial investigation into this and finds that there are more cases of over-correcting for accusers than for the accused, then I’m on board and will cheer her on. However, as Mav has said, she seems to have drawn her conclusions (referring to anecdotal evidence, some of which is very, very dubious, including the USC case) before gathering evidence (i.e., she’s being political rather than objective).
As for BLM, it may have started out as anecdotal, but (at least from what I’ve seen) quickly branched out to looking at overall trends, such as comparing overall deaths by police by race.
This case below seems pretty solidly pro-accused:
http://www.motherjones.com/politics/2017/09/she-was-a-rising-star-at-a-major-university-then-a-lecherous-professor-made-her-life-hell/
Anecdotal evidence is a perfectly reasonable justification to start an investigation or to look more closely at a possible problem. It is not a reasonable justification to enact a policy decision. BLM represents the former. DeVos represents the latter.
But I don’t need evidence to convince me there can be a problem of sexual assault not being taken seriously. That doesn’t settle the difficult question — how do you design a system for dealing with it? What weight must be given to the competing interest in preserving rights of the accused? As one person formulated in an idealized way: for what value of N would you say “better that n students guilty of sexual assault remain at the university, with no discipline imposed, than one innocent student be expelled or otherwise disciplined?”
That strikes me as a very hard question, on which reasonable people may differ. In fact, my biggest reason for pessimism about DeVos’ plan is simply that I don’t think there is a good solution to be found.
On “overcorrection”, I would recommend the writings of Emily Yoffe, in part because as far as I can tell she is no right wing ideologue with an anti-Obama axe to grind. She has a 3-part series in the Atlantic starting with this one:
https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/
An interesting sidelight: in part 3 of her series, Yoffe raises the question whether Title IX proceedings are racially biased against men of color:
https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/