Biden Would Roll Back New Protections for College Students Accused of Sex Crimes

He's doubling down on hypocrisy.

The presumptive Democratic nominee for President says he’ll reverse new rules providing due process rights for college students accused of sexual misconduct.

The Hill (“Biden says he’ll reverse DeVos rule bolstering protections for those accused of campus sexual assault”):

Former Vice President Joe Biden said Wednesday that if he’s elected president, he will reverse a rule issued by Education Secretary Betsy DeVos aimed at bolstering protections for students who are accused of sexual assault on university campuses.

In a statement, Biden said the new rule was an effort by the Trump administration to “shame and silence” survivors of sexual assault.

“It’s wrong,” Biden said. “And, it will be put to a quick end in January 2021, because as president, I’ll be right where I always have been throughout my career — on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld.”

The new rule issued Wednesday narrows the definition of sexual harassment and requires schools to produce evidence and allow for the cross-examination of students who say they were assaulted.

The rule is meant to ensure that those accused of sexual assault receive due process.

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said in a statement. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”

The Trump administration and many conservatives believe that the Title IX rule changes implemented under the Obama-Biden administration robbed students of due process through unregulated campus tribunals that resulted in scores of lawsuits from the accused.

Critics of the Obama administration rule said the accused operated under an assumption of guilt and were denied basic rights, such as the ability to question the evidence against them or question their accusers.

The Trump campaign gathered a roundup of criticism of Biden’s support for strengthening Title IX regulations in favor of survivors from prominent public intellectuals, such as Andrew Sullivan, Emily Yoffe and Bret Stephens.

The Trump campaign said that Biden is trying to hold students to a different standard than himself. Biden last week denied allegations of sexual assault made by Tara Reade, a former staffer in his Senate office in the early 1990s.

“Biden should cut the malarkey and provide an honest answer to Americans – why shouldn’t he be held to the same standards he spent years imposing on everyone else?” said Trump campaign spokesman Andrew Clark.

As regular readers know, I supported Biden in the primaries and intend to vote for him in November. He’s a good and decent man and there’s no question in my mind that he’ll be a far, far better President than Donald Trump. And, while I haven’t written much about it, I think DeVos has been a disaster at Education.

But Biden is wrong here and Trump and DeVos are right. The Obama-Biden rule simply went too far, all but removing due process rights of those accused of sexual misconduct.

Unlike so many administrative changes under this administration, these were thoroughly vetted by professionals. Greta Anderson for Inside Higher Ed (“U.S. Publishes New Regulations on Campus Sexual Assault“):

It took nearly a year and a half for the department’s Office for Civil Rights, or OCR, to review more than 124,000 public comments on the issue and finalize the proposed regulations, which were published in November 2018. The regulations will be the first Title IX guidance published by OCR to go through a formal notice-and-comment process since 1997, and unlike guidance issued by the Obama administration in 2011 and 2014, they will have the force of law behind them. Colleges and universities will be required to comply with the regulations by Aug. 14.

[…]

The Obama guidance stated college officials should use a “preponderance of the evidence” standard to determine guilt in sexual misconduct complaints, basing decisions on the most convincing evidence presented. It was followed by an explosion of civil lawsuits filed mostly by male students accused of sexual misconduct, who alleged their rights were violated by unfair Title IX procedures at their colleges. The 2020 regulations will instead allow Title IX officials at colleges to use either a preponderance of the evidence or “clear and convincing” standard, which sets a higher burden of proof.

The new evidence and cross-examination standards have been points of contention for advocates for survivors of campus sexual assault, who say live questioning could retraumatize and prevent victims from coming forward to report sexual misconduct. Statements made by parties and not cross-examined as part of a Title IX investigation may not be used as evidence, a summary of the new regulations said.

The regulations also explicitly define the scope of colleges’ responsibility to respond to complaints of sexual misconduct. Colleges must act upon complaints of misconduct that occurs within an education program, such as in off-campus housing for recognized Greek life organizations or at events that are part of a university program. But a college “may address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses,” the regulations say.

[…]

The rule is focused on protecting students on both sides of Title IX complaints, Kenneth Marcus, assistant secretary of OCR, said in a statement from the department.

“It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct,” Marcus said. “There is no reason why educators cannot protect all of their students — and under this regulation there will be no excuses for failing to do so.”

A sidebar highlights the most significant changes:

  • Colleges and universities will now be required to allow cross-examination of the complaining and responding parties, as well as any witnesses, during a live hearing led by institution officials. Cross-examination will be conducted by advisers for parties, including legal counsel, but not the parties themselves.
  • Colleges are only obligated to respond to reports of sexual harassment that occurred off-campus if the location is in use by an officially recognized student or institution organization, such as recognized fraternity or sorority housing or athletic housing.
  • Colleges will be able to determine whether to use a “preponderance of the evidence” or “clear and convincing” standard as a burden of proof and must use the same standard for all complaints, no matter if they involve student or faculty misconduct.
  • Stalking, domestic violence and dating violence are now officially considered examples of sexual harassment under Title IX.
  • The definition of sexual harassment is more narrow than previous guidance. It is defined as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.” Reports of sexual assault, dating violence, domestic violence and stalking do not need to meet the description of “severe, pervasive and objectively offensive.”
  • Colleges are not obligated to handle complaints of sexual harassment that occurs outside the United States. This means any harassment or assault that happens in American education programs abroad would not be covered by Title IX, but the new regulations say institutions “remain free” to apply misconduct policies for programs abroad if they so choose.
  • If a Title IX coordinator receives multiple informal complaints of harassment against a single respondent, they will not be required to begin a formal complaint process. The department changed this requirement from the proposed rule, which sought to obligate Title IX coordinators to take action after receiving multiple informal reports against the same person.
  • Colleges can no longer use a “single investigator model,” which has one official tasked with investigating, adjudicating and issuing disciplinary sanctions against respondents. The regulations instead require three separate officials to work through separate pieces of a single Title IX complaint process: a Title IX coordinator, who receives reports of sexual misconduct; an investigator, to gather facts and interview parties and witnesses; and a decision maker, to determine sanctions and remedies for parties.
  • Colleges must train all personnel involved in the Title IX process and publish training materials on their websites. Training must involve review of the new rule’s definition of sexual harassment and the scope of the application of Title IX to college programs and activities, how to conduct a formal or informal process, and how to “serve impartially,” including avoidance of “prejudgment of the facts at issue, conflicts of interest, and bias.”
  • Title IX processes may be conducted virtually, and staff must be trained on relevant technology to conduct remote investigations and hearings. Live hearings will be recorded, by transcript or audiovisually, and will be made available to parties and maintained in college records for at least seven years.
  • Colleges must provide evidence related to allegations to parties and advisers at least 10 days prior to requiring a response, and parties will not be prohibited from speaking about the allegations. This means doing away with “gag orders.”
  • Colleges are not obligated to follow a specific time frame for responding to reports of sexual misconduct. They are instead required to have “reasonably prompt” periods for carrying out each step in the Title IX complaint process.

This seems to me exactly right. First, it goes a long way to solving the issue I recently noted in my weekend post “The Language of Sexual Violence” of lumping violent acts and those which merely cause discomfort into the same category. Second, it restores due process for those accused of misconduct.

The main complaint, which isn’t unreasonable, is that these new rules make it less likely that victims will come forward, as the requirement to risk cross-examination could potentially add to their trauma. But our criminal justice system is an adversarial process. And, while ensuring justice for victims is a major goal of the enterprise it has never been the primary one; the due process rights of those accused of misdeeds and facing punishment must always come first.

A secondary complaint is that the timing is just awful. With most of the nation’s colleges and universities all but closed by a pandemic, issuing major rules changes that will require them to jump through major hoops to get into compliance by August is the last thing they need.

That’s fair but I don’t know what the alternative is. DeVos and her team have been working on this for years and they potentially only have another few months to implement the policy. The Department should certainly give leeway to institutions under the circumstances but delay was not really a viable option.

As to Biden, one would think having been falsely accused* of sexual assault himself, he would have changed his position on this. As it is, he’s doubling down on the hypocrisy, simultaneously asking us to #BelieveWomen, presume college-aged boys are guilty the moment they’re accused, and to believe him when he tells us he’s innocent.

__________________________

*Biden has flatly and unequivocally denied the allegations and there are good reasons to question the accuser. At this juncture, I believe he deserves the presumption of innocence.

FILED UNDER: *FEATURED, Education, Gender Issues, Higher Ed, Joe Biden
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. drj says:

    I’m sorry I have to say it, but you are being completely unfair.

    Where to start?

    As to Biden, one would think having been falsely accused* of sexual assault himself, he would have changed his position on this. As it is, he’s doubling down on the hypocrisy, simultaneously asking us to #BelieveWomen, presume college-aged boys are guilty the moment they’re accused, and to believe him when he tells us he’s innocent.

    Basing a decision on the preponderance of evidence =/= presume college-aged boys are guilty the moment they’re accused. (Duh)

    And where is the hypocrisy? Did Biden demand that Reade was cross-examined by his lawyer?

    This is so unrecognizable, it’s not even a caricature.

    Second, it restores due process for those accused of misconduct.

    Do you support similar procedures for students accused of academic misconduct? For employers accused of misconduct (sexual or otherwise) in the workplace?

    I bet you don’t. Neither does DeVos.

    So why specifically extend additional protections to those accused of sexual misconduct – ususally done by men against women? What message do you think this sends?

    What does it tell you that thousands of women who experienced sexual assault are not happy with the new rules?

    Last but not least, don’t you think its rather naive to assume that someone like DeVos cares about justice or would ever act in good faith?

    Maybe the old rules fell short, but you can bet your life that the new ones were not designed with fairness and justice in mind.

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  2. James Joyner says:

    @drj:

    Basing a decision on the preponderance of evidence =/= presume college-aged boys are guilty the moment they’re accused.

    A preponderance standard is perfectly reasonable in an administrative hearing. That’s preserved under the new rule, although “clear and convincing”—a slightly higher standard—is permissible. What I object to is the inability to cross-examine witnesses, etc. under the old rules. That’s fixed now.

    @drj:

    Do you support similar procedures for students accused of academic misconduct?

    Yes. And most schools (if not all but I haven’t studied the matter) have rather rigorous due process standards in place. Hell, I’m at a military school and we have all manner of protections in place for students accused of misconduct.

    For employers accused of misconduct (sexual or otherwise) in the workplace?

    Absolutely. It’s fundamental fairness.

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  3. drj says:

    @James Joyner:

    Yes. And most schools (if not all but I haven’t studied the matter) have rather rigorous due process standards in place.

    I have never, ever heard of a student accused of e.g. falsifying lab results who had their lawyer cross-examine the accusing professor.

    Absolutely. It’s fundamental fairness.

    In most workplaces, one can get canned for pretty much anything. So do you (or DeVos) support more stringent labor protections? Really?

    You are not even seeing the double standard you are allowing.

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  4. gVOR08 says:
  5. R.Dave says:

    @drj: In most workplaces, one can get canned for pretty much anything. So do you (or DeVos) support more stringent labor protections? Really?

    Universities are a different animal. In most workplaces, employees don’t live at the office and aren’t paying to be employed there using large amounts of federal funding, and the employer doesn’t have its own police force and quasi-judicial system, tenure its senior employees, maintain a permanent record on all employees that gets shared with any future employer a fired employee applies to, and either enjoy tax free status and the aforementioned copious federal funding or exist as an outright state-run institution (for state schools).

    Also, it’s important to remember that the federal government isn’t swooping in to mandate due process rights in procedures that private universities simply implemented of their own volition; it’s mandating due process rights in the context of a system the federal government itself has already mandated. If the government is going to require schools to have a process in place to adjudicate Title IX complaints, then yes, the government should require that process be fair to all participants.

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  6. John A Peabody says:

    Well written, Mr. Joyner. Thank you.

    4
  7. Michael Reynolds says:

    I’m with Joyner and, God help me, DeVos. Process is important, accusation does not equal guilt, and ‘sending a message’ is not a valid excuse for ruining the life of an innocent person.

    16
  8. R.Dave says:

    Substance aside, I’m not sure I get the politics of this either. Doubling down on this right now seems guaranteed to amplify the hypocrisy charges and give additional legs to the Reade allegations. I think it would have been better to go with some sort of balancing act that (i) praises the Obama-era changes while acknowledging that lessons have been learned through implementation and tweaks are needed but (ii) still criticizes the Trump/DeVos changes as going to far in the other direction and reflecting a general animus toward women and victims. He could even spin it to undermine the seriousness of the Reade situation by throwing in a half-joking line about knowing what it feels like to be falsely accused and (per drj) pointing out that he’s not demanding anyone submit to formal cross-examination by his lawyers.

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  9. Jon says:

    I don’t know enough about this in general to have an intelligent opinion, but I *do* know enough about the Trump admin generally, and Betsy DeVos specifically, to be very very leery of their intentions.

    7
  10. James Joyner says:

    @Jon:

    I *do* know enough about the Trump admin generally, and Betsy DeVos specifically, to be very very leery of their intentions.

    Sure. But we can look at what they actually *did* here and evaluate the substance.

    10
  11. drj says:

    @R.Dave:

    Universities are a different animal

    Sure. But that shouldn’t mean that it is harder to kick out a student for sexual assault than academic misconduct. At the very least, the disciplinary procedure should be roughly the same, no?

    So let’s take a look what it takes to dismiss a student from James Joyner’s Marine Corps University, shall we? We need the Academic Regulations for that.

    Chapter 14: “Academic integrity”

    Cases of suspected academic dishonesty will be investigated by the director of the appropriate MCU college, school, academy, or program. If warranted, the director will convene a Student Performance Evaluation Board (SPEB) to further investigate and propose resolutions for alleged student academic dishonesty.

    Chapter 16: “Student Performance Evaluation Board”

    Procedures. The following procedures will be followed when conducting SPEBs at Marine Corps University for resident and non-resident programs. […]

    A student may seek legal advice and/or retain counsel at his or her own expense, but will not be represented by legal counsel during the conduct of the board. […]

    Recommendations of the board may include, but are not limited to the following: […]

    7) Student is dropped from the course and dismissed from the University.

    8) Further action as deemed necessary by the director.

    So why is it reasonable to extend more protections to those accused of sexual assault than to those accused of academic misconduct?

    Shouldn’t we be more concerned that innocent students get expelled from the MCU? Or does the SPEB function properly already? If so, why then extra protections for those accused of sexual assault?

    Because them hysterical bitches can’t be trusted, I guess.

    14
  12. Jon says:

    @James Joyner:

    we can look at what they actually *did* here and evaluate the substance.

    Except I don’t know enough about all the ins-and-outs of this to be able to evaluate the substance, nor do I think I am particularly qualified to do so, which is why I’m explicitly not.

    4
  13. Gustopher says:

    @drj:

    So why is it reasonable to extend more protections to those accused of sexual assault than to those accused of academic misconduct?

    Because sexual assault is a far worse infraction and there is frequently far less hard evidence making the situation more ripe for abuse. And because removal for sexual assault is going to follow the former student in a way that academic misconduct won’t.

    4
  14. R.Dave says:

    @drj: So why is it reasonable to extend more protections to those accused of sexual assault than to those accused of academic misconduct?

    Generally speaking, I think those accused of academic misconduct or any other offense that could result in serious sanctions against them should be entitled to representation in the proceeding, so sure, I think the procedures for academic violations you just cited are inadequate. We’re talking about 18-20 year-olds facing potentially life-altering consequences imposed by a massive, powerful institution – of course they should be allowed to have assistance of counsel! Nevertheless, I note that even though the procedures you cited don’t allow representation at the hearing, I don’t see any prohibition on cross-examination of witnesses either at or before the hearing, so that’s already a big step toward the DeVos guidance anyway.

    That all said, I can think of at least three important distinctions between adjudication of academic violations and adjudication of Title IX violations that might be used to justify a lower level of due process in the former. First, in academic violations, the evidence will often/usually speak for itself (e.g., clearly plagiarized writing, identical wrong answers among a group, etc.), whereas the evidence in sexual assault/harassment cases is usually mostly testimonial (i.e., he said, she said). For testimonial evidence, the right to cross-examine the witness, ideally via a third-party representative or counsel, is crucial. Second, when adjudicating an academic violation, the university isn’t purporting to act as a neutral arbiter between two parties as it does when adjudicating Title IX violations. Rather, it’s acting in its own interest as an institution, so it’s closer to the employer-at-will model you referenced in an earlier post. Third, and most importantly, adjudication of academic violations isn’t federally mandated, whereas adjudication of Title IX violations is, so the former is a purely private matter between two private parties whereas the latter implicates the panoply of rights that defendants are entitled to whenever they’re facing off against or before a governmental (or quasi-governmental) actor.

    5
  15. Gustopher says:

    Colleges are only obligated to respond to reports of sexual harassment that occurred off-campus if the location is in use by an officially recognized student or institution organization, such as recognized fraternity or sorority housing or athletic housing.

    This is a very bad thing. The question at the heart of this that the university should be asking is “does the behavior of the accused student create a situation where the accuser is denied an opportunity for an education?”

    The harassment is a cumulative thing. Having a bunch of frat boys screaming at someone that she is a fat slut is going to make it just as hard for her to be in a class while they are looking at her and giggling among themselves whether the screaming happened at a frat house or an IHOP off campus.

    3
  16. Slugger says:

    Have any of you read the Jon Krakauer book Missoula that describes the playing out of rape allegations in a college setting? The system found against the accuser at least in part because the accused was a popular football player in a football crazy town. My sense is that achieving balanced justice in these cases is very hard, and many extraneous factors influence the adjudicators. For men of my generation, sex was something that you “got” from women who “gave it up.” I use the quotes to mark the prevailing thinking. You got sex from your campus date by hook or by crook. The guys who got some bragged about it and got praised. A guy like me who didn’t was not admired and made to feel that the road to success was through intoxication, smooth verbalizations, and not taking no for an answer.
    I doubt that a proper balance can be achieved by any written regulation; the issue is just too complex, and some people who make regulations are trying to make ideology serve political ends.
    Things were simpler two generations ago. My sister once told me that her boss was making unwanted advances. She told me instead of Dad because Dad would have killed the guy-no complicated adjudication process needed.

    5
  17. Gustopher says:

    I do think it’s kind of insane for colleges to be investigating rape — that should require a referral to the police department.

    13
  18. Michael Reynolds says:

    @R.Dave:

    Substance aside, I’m not sure I get the politics of this either. Doubling down on this right now seems guaranteed to amplify the hypocrisy charges and give additional legs to the Reade allegations.

    Biden is making the mistake so many of us have made when dealing with absolutists on the Left – he imagines that they are people of good will interested in solving real problems or getting at the truth. Extremists are only interested in being extremists.

    16
  19. Jim Brown 32 says:

    Good. It’s not a good idea to push academics institutions too far into the pool of being the arbiter of guilt or innocence for subjective complaints. They are not designed for that so requirements far outside their scope is bound to be handled poorly despite all the best of intentions.

    But this goes back to the larger point I try to make about zero defect culture. Any institution that does not allow its young to make mistakes are breeding grounds for sociopaths. Much of the drive to punish inappropriate behavior and comments are extensions of this culture and are counterproductive to achieving the outcomes their proponents want.

    There are tradeoff to any system of punishment an institution decides to implement. Zero defect organizations, by default, will punish the innocent to maximize how many guilty they can reprimand. This adds more toxicity because who wants be in a system that tolerates innocent people treated as guilty? The opposite tradeoff is a few guilty escape punishment so that no innocent unfairly suffer. Its clear the MeToo crowd wants to live in the former system but pretend it’s the latter.

    When I was a young officer, I had to investigate several of these harassment/assault events. The typical one is a curse you’d wish on no one to have to decide. Usually its a party where everyone is drunk, the 2 parties wanted privacy so they separate from the group. She says one thing happened–he says another. Both would usually credible backgrounds where you’d not expect either of them to lie and no previous reports against the man. How do you confidently punish the man under these types of circumstances? I’ll tell you, institutional pressure dictates that you BETTER punish him or face scrutiny yourself.

    We need to decide what’s crime and what’s inappropriate or a mistake. Crime belongs in the judicial system. Institutions should have some discretion with handling mistakes in judgment, which the majority of complaints probably down to.

    It seems all the onus for good judgment is now on the man and anything else is victim blaming. I say, equality means equality and that those who say they desire it…often don’t like the downside that comes with it.

    14
  20. Jim Brown 32 says:

    @drj: Surely you understand the ramifications for future school enrollment if your record says expelled for cheating vice sexual conduct. It used to be in the 80s you could get in another school after cheating by simply start over at 0 credits. Its probably not that simple if you’ve been thrown out for sexual misconduct

    3
  21. Daniel Hill says:

    @James Joyner:

    we can look at what they actually *did* here and evaluate the substance.

    Not only can we, but that is the standard to which we should hold ourselves.

    5
  22. Jim Brown 32 says:

    @Gustopher: But that scenario isn’t sexual harassment. I’d hope that it would be covered under bullying policy which should have a larger scope. If a sexual assault/harrassment happens at IHOP–the police can/should be called for that.

    I almost think the previous policy was beneficial to county courts because it allowed them to punt these types of cases to school and wash their hands of it. They dont help prosecutors or sheriffs get reelected and they dont make money for the county. Yes, I’m a cynic

    1
  23. Jim Brown 32 says:

    @Slugger: I’m still a believer in male relative justice. I’ve threatened the boyfriends of countless female relatives if they hit or took what wasnt given. It was well known growing up that the price of taking the virtue of a female “Brown” family member wasnt worth the 10 pounds of flesh it would cost afterwards. Anecdotal I know, but the girls that didn’t have that implicit threat around them were the most susceptible to being put in threatening situations.

    1
  24. drj says:

    @Jim Brown 32:

    So, at Joyner’s MCU students may be expelled for a variety of reasons through a ruling of the SPEB, including “attitudinal problems, and/or violations of professional ethical standards” – which, I can imagine, includes fighting, bullying, drug abuse, and whatnot.

    Joyner implied heavily that the MCU has “rather rigorous due process standards in place.”

    But for this one class of accused there have to be even more stringent protections in place; and only this one class of accusers has to jump through additional hoops.

    This is just another way of saying “Bitches be lyin’.”

    4
  25. Michael Reynolds says:

    Link:

    Somewhat off topic, somewhat on topic.

    A woman who had accused Dr. Anthony Fauci of sexual assault now claims she was paid to lie about the public health expert by a pair of President Donald Trump’s supporters.

    The woman says right-wing provocateur Jacob Wohl and his frequent accomplice Jack Burkman persuaded her to cast Fauci as the assailant using details from an actual sexual assault she survived just after high school, and they paid her to do it, reported Reason.

    11
  26. smintheus says:

    The argument here is way off base, particularly the nutty last paragraph which makes virtually no sense at all.

    DeVos’ rules have several very poor provisions. Eliminating an obligation to investigate violations that occur in off-campus sites, including housing, and in study abroad programs? That’s just egregiously wrong headed. Student groups often go abroad for interim/summer courses, and typically there are males in such group who ramp up their anti-social and bigoted behavior to an extraordinary degree because they feel they are free from punishment overseas. Women students often are appalled at the behavior of certain males on any given trip, and universities are all too eager to wash their hands of any responsibility for holding students accountable once they leave the campus. Requiring that harassment be both severe and pervasive means that universities can wash their hands of incidents however abusive that aren’t repeated multiple times. Substituting “reasonably prompt” as the timeframe means that universities so inclined can just have faux-pending investigations unless or until somebody can force them to actually follow through. I used to work at a university that routinely promised it was investigating things, investigations that never concluded and never had any evidence of existing at all.

    Preventing universities from using a single investigator model is extremely and unnecessarily invasive. There are many things to recommend against a multiple-party model, especially the fact that information that is clear to one person may turn out not to be conveyed or made clear to another. I’ve seen cases of undisputable academic wrongdoing that have been bungled because absolutely basic information was simply overlooked or forgotten by one or more people tasked with addressing it. The multiple person model also increases the likelihood that at least one of the people involved will refuse to accept the validity of some evidence or generally decide in practice to apply a more lenient standard of evidence just because they feel empathy for the accused. Again, I’ve seen cases where blatant academic cheating etc. went totally unpunished because a single person decided they wouldn’t be confused by the facts. Your multi-group model is no stronger than the weakest link in the group.

    Also, it’s crazy to require universities to apply the same standard to faculty accused of wrongdoing – for two obvious reasons: (a) students have an interest (personal benefit) in falsely accusing faculty that they don’t have in accusing fellow students. At some institutions at least, it’s routine for students to make wild and even vicious accusations against faculty for the slightest of pretexts. Lasing out is real, and never once have I seen a student penalized for making things up about a faculty member. (b) faculty make long term commitments to a university, and lifetime commitments to their academic disciplines. Their careers likely are ruined by a single adverse ruling based on a mere preponderence of evidence (which, as I said, in practice can be used in a very wide range of ways depending on the personnel involved in judging the case). By contrast, a student found guilty of sexual harassment can fairly easily just carry on at the same university, or transfer to another one with nobody there being the wiser. Those two reasons make it nuts to apply the same standards to faculty as students. Therefore any university with an ounce of common sense will now have to apply a very much higher standard to accusations against students unless it wished to throw its faculty under a bus.

    Overall, I would rate the DeVos rule changes an almost unmitigated disaster.

    9
  27. smintheus says:

    @Gustopher: Students are free to make up their own minds whether they want to make a charge to the police. Universities have to deal with all bad behavioral problems among students, including behavior that could be criminal. They can’t just ignore plain evidence of a rapist on campus just because the person hasn’t been convicted (yet) under the legal system…any more than they would ignore an abusive drunkard or vandal.

    1
  28. Michael Reynolds says:

    @smintheus:

    (a) students have an interest (personal benefit) in falsely accusing faculty that they don’t have in accusing fellow students.

    This is just nonsense. People have all sorts of motives. A cheats on B, B gets revenge by accusing A. A and B are roommates, they fight, accusations follow. A thinks B is a teacher’s pet. A thinks B stole possible mate C. I could sit here and make you a list of 100 possible motives.

    5
  29. smintheus says:

    @Michael Reynolds: There are all kinds of potential imaginary scenarios you can paint, very few of which carry any specific benefit to a student. Fantasizing about how things could be does not change the reality that students routinely lie about faculty when they see an advantage in it.

    1
  30. grumpy realist says:

    @Gustopher: It’s also that certain levels of sexual behaviour do in fact amount to crimes, while no one cheating on a test is going to get dragged into an actual courtroom.

    The problem we’re running into is that a lot of behaviour at college is now supposed to be “controlled” by universities, either to punish people for cheating, or to keep a reasonable lid on behaviour labeled “antisocial” in what is an extremely close environment. It used to be (in my experience) is that the universities worried about cheating, and anything else that lay within the state criminal code (rape, etc.) would get handed over to the city police. Any other activity complained about (“bullying”, etc.) resulted in a snippy comment that the university wasn’t out to coddle the student, the student was a clear adult, the behaviour complained about wasn’t a crime, and the student should just take his/her lumps and figure out how to deal with the situation him/herself.

    Now students and parents insist that the universities occupy a much more parental role and control the living environment much more closely. Doesn’t surprise me that we’ve gone down the rabbit hole of thinking a separate university legal system should exist as well, complete with due process, discovery, and all sorts of stuff. Probably some lawyer parent of a kid at a state university started the ball rolling and it’s now slopped over to the private colleges….

    5
  31. Michael Reynolds says:

    @smintheus:
    So they routinely lie about faculty, but not about students. That’s absurd on its face. The notion that people only do what they rationally calculate will be profitable betrays a lack of understanding of humans. Good lord if people only did what was likely to profit them we wouldn’t have an orangutan in the White House.

    2
  32. James Joyner says:

    @drj:

    So why is it reasonable to extend more protections to those accused of sexual assault than to those accused of academic misconduct?

    Shouldn’t we be more concerned that innocent students get expelled from the MCU? Or does the SPEB function properly already? If so, why then extra protections for those accused of sexual assault?

    For students at the Command and Staff College, the SPEB will have, as a minimum, the student’s primary civilian (a PhD) and military faculty (a LtCol or equivalent) advisors (as non-voting members), the Dean of Academics (a seasoned PhD), the Dean of Students (usually a full colonel), another LtCol and PhD from outside the student’s conference group, and a representative (a PhD or LtCol, usually) from outside the College. The predisposition is to find a remedy short of expulsion, given the damage that it would have on the student’s career going forward. (Indeed, that predisposition leads to almost all issues being resolved short of calling a SPEB, which is seen as a major shot across the bow.)

    If expulsion is warranted, the decision is made by the Director, a post-command full colonel. And, if he concurs, the decision goes to the MCU President, a brigadier general.

    There’s a ton of due process there.

    Beyond that, in the case of academic misconduct, there is always going to be physical evidence: the paper itself. If there are multiple passages copied from another source without quotation marks or citation, it’s rather indisputable. But, again, the propensity is to find a solution less harsh than expulsion unless the student is a repeat offender or otherwise in serious academic trouble. We have 215-230 students a year. I’m not sure we’ve expelled more than five since I’ve been on the faculty—going back seven years now. Only one of my students was expelled and he didn’t even contest the matter; the plagiarism was blatant—literally the entirely of the paper was the same minus some bizarre Korea/Russia substitutions that rendered it nonsensical.

    In the case of allegations of sexual misconduct, there is frequently (usually?) no physical evidence. We’re not talking about rape here, which would presumably go through the criminal process.

    3
  33. James Joyner says:

    @Gustopher:

    I do think it’s kind of insane for colleges to be investigating rape — that should require a referral to the police department.

    All of the universities I attended or taught at prior to this one have their own police departments, the officers of which are state police. That is, they have state-wide, not just local or campus, jurisdiction and are usually trained and certified at a higher standard than the local cops.

  34. R.Dave says:

    @James Joyner: All of the universities I attended or taught at prior to this one have their own police departments, the officers of which are state police.

    Which, in and of itself, is bizarre and wrong in my opinion. There are a ton of issues with the quasi-private / quasi-municipal status of university campuses.

    3
  35. James Joyner says:

    @drj:

    So, at Joyner’s MCU students may be expelled for a variety of reasons through a ruling of the SPEB, including “attitudinal problems, and/or violations of professional ethical standards” – which, I can imagine, includes fighting, bullying, drug abuse, and whatnot.

    Joyner implied heavily that the MCU has “rather rigorous due process standards in place.”

    As noted above, the due process standards are very, very high for an administrative process. Our core students are mid-career commissioned officers and other national security professionals pursuing graduate-level education. Everyone from instructors to the college president have every incentive to work with the student and graduate them back to the operating forces or the broader national security community as improved professionals.

    Conversely, civilian universities have little to no stake in individual students. All their incentives are CYA. Under heavy pressure from the Obama-Biden Title IX regulations to bend over backwards to ensure those who claim victim status are happy, they’re naturally going to be willing to throw the accused out rather than risk the backlash.

    4
  36. James Joyner says:

    @R.Dave:

    Which, in and of itself, is bizarre and wrong in my opinion. There are a ton of issues with the quasi-private / quasi-municipal status of university campuses.

    Probably. But federal law has, for longer than I can remember, essentially required universities to maintain separate criminal justice systems.

    1
  37. smintheus says:

    @Michael Reynolds: What is absurd on its face is your pretence that you don’t understand the plain language of my statement, viz that students lie about faculty for reasons of academic self advantage that do not generally exist with regard to other students. That is one of the most obvious reasons why allegations by students against faculty should be evaluated differently than allegations by students against other students. The fact that you pretend this is hard to understand suggests to me that the value of your insights in this matter is far less than you seem to imagine.

    1
  38. Michael Reynolds says:

    @smintheus:
    I didn’t pretend it was hard to understand, I said it betrayed a lack of understanding about human nature. Might students have reason to see advantage in lying about teachers? Yes. Might students have reason to see advantage in lying about other students? Yes. Obviously.

    3
  39. drj says:

    @James Joyner:

    Conversely, civilian universities have little to no stake in individual students. All their incentives are CYA. Under heavy pressure from the Obama-Biden Title IX regulations to bend over backwards to ensure those who claim victim status are happy, they’re naturally going to be willing to throw the accused out rather than risk the backlash.

    So it boils down to “We got great due process, which is impossible for civilian universities because (unlike us) they don’t have integrity and don’t care about their students. Therefore, civilian universities have to give extra protections to exactly one category of accused only. Also: Biden is a hypocrite.”

    Got it.

    6
  40. R.Dave says:

    Out of curiosity, drj, do you actually think you’re making strong arguments and effectively refuting counterpoints in this thread, or are you just knowingly sh*tposting? Trying to gauge your level of self-awareness here….

    3
  41. smintheus says:

    @Michael Reynolds: The chance that a student will be academically advantaged by lying about another student sexually assaulting him/her is so small that I defy you to cite a single such instance. You’re just pulling stuff out of a bodily orifice and calling it gold. It’s no harder to understand my rebuttal to your imaginary scenario than it was to understand my original point. You’re clueless about academic issues if you think there’s a crisis on campus of students trying to leapfrog fellow students by accusing them falsely of rape.

    2
  42. smintheus says:

    @R.Dave: drj is talking sense, Joyner and his supporters on this thread are the ones talking nonsense. In particular, the idea that military schools are bastions of integrity and due process is ludicrous. I taught once at one of the military academies, and it was thoroughly corrupt in the way that it dealt with all complaints/allegations – whether academic cheating, or abusive behavior by the ‘students’, or accusations of wrongdoing by faculty/staff/administration. People routinely chose not to report even the most flagrant wrongdoing because the academy normally covered up for the accused while treating the accuser terribly. I have taught at several civilian institutions, and only one of them was even in the same universe of corruption as that academy was and had been long before I got there.

    4
  43. Gustopher says:

    @Jim Brown 32:

    But that scenario isn’t sexual harassment. I’d hope that it would be covered under bullying policy which should have a larger scope. If a sexual assault/harrassment happens at IHOP–the police can/should be called for that.

    Harassment generally requires a pattern of behavior. If you split the behavior up into different buckets based on location, you can create a situation where the pattern, though there, cannot be addressed.

    Campus, township, state park, next town over, federal post office — all different. One incident in each is a pattern, only if you can look at them all at the same time. Granted, the harassment in a post office is a stretch.

    Meanwhile, generally students have to accept a code of conduct that doesn’t specify location when they enroll. That’s the standard that should be used. Along with any nexus on campus that impacts the victim’s ability to get an education.

    2
  44. Michael Reynolds says:

    @smintheus:

    The chance that a student will be academically advantaged by lying about another student

    And that’s the only possible motive? Ever hear of revenge? Rage? Jealousy? Sheer nastiness? Seriously? You’re not making sense. And I’m done.

    4
  45. Crusty Dem says:

    Working at a university, I disagree with the general premise here, largely because title IX has turned from its original goal of empowering victims of harassment and assault into a university office designed to silence and discredit victims. I tell anyone dealing with issues at the my university to skip title IX office, skip HR, and go straight to the city police. And this is before DeVos gutted whatever protection was supposedly in place for victims.

    I understand there are insane overreaches in certain cases by title IX offices and that the law grants them a potential excess of power, but I assure you they pale in comparison to the frequency these offices have been used as a shield to hide, delay and cover up real harassment and assault. See Rochester, Vanderbilt and a myriad of other schools that have hidden or covered up harassment and worse for years..

    4
  46. smintheus says:

    @Michael Reynolds: When did I say that students had no motives or opportunities to lie about other students? Your series of contemptuous screeds here are based upon your eagerness simply to make things up in order to create a straw man you can mock. My point from the beginning is that there is an entire category of lying, for academic advantage, that makes student accusations against faculty qualitatively different and which therefore call for a different standard of evaluation. Not hard at all to understand, if you chose to understand the point.

    1
  47. smintheus says:

    @Michael Reynolds: And it’s amusing how you stalked off as soon as I asked you to cite a single instance of a student “see[ing an] advantage in lying about other students” (in your own words).

    1
  48. Mu Yixiao says:

    @smintheus:

    as soon as I asked you to cite a single instance of a student “see[ing an] advantage in lying about other students” (in your own words).

    Here a list of incidents.

    Please read through them. You’ll find plenty of instances of students taking advantage of students. You’ll even find instances where a third-party student instigated Title IX investigations (which caused harm to the accused) where the alleged victim actively denied that there was an issue.

    Please take notice that I am standing up to side with Michael Reynolds. He and I are on the opposite side of everything–except, it seems, this.

    @drj:

    Please read the same articles. Then take the time to look up the cases as reported from other sources (so you know it’s not bias from a single source).

    Are you okay with:

    * The accused not being told that they’ve been accused until after the verdict?
    * The accused not being able to respond to what they’ve been accused of?
    * The accused not being able to present evidence to refute their accuser?
    * The alleged victim not being able to say “it didn’t happen”?

    Because no one would ever falsely accuse anyone of anything…. Right?

    * Duke LaCrosse
    * UVA (Jackie Coakley)
    * Diana Andrade

    James is right: Every person accused of a “crime” must be afforded both the benefit of the doubt and the full protection of the law. That is the core of our judicial system.

    I’ve lived in a country where they subscribe to the philosophy that you’re presenting. I’ve spent time in a few more.

    You don’t want that to come to America.

    4
  49. drj says:

    @Mu Yixiao:

    You are missing the point.

    If the Department of Education had issued a new policy guideline stating that all students accused of an offense that could lead to expulsion deserve a higher standard of protection, there would be no need to question the fundamental fairness of that decision.

    But now we have a rule that says only those accused of sexual assault (mostly men – a tradtionally advantaged group) should be given addtional protections which would make it harder for the accusers (mostly women – a tradtionally disadvantaged group) to attain justice.

    Reminds me of Lee Atwater:

    You start out in 1954 by saying, “Nigger, nigger, nigger”. By 1968 you can’t say “nigger”—that hurts you. Backfires. So you say stuff like forced busing, states’ rights and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites.

    I hope you can spot the parallels.

    Again, increased protections for everyone: totally fine.

    Increased protections for one traditionally advantaged group only (to the collective detriment of a tradtionally disadvantaged group): not fine.

    Maybe what you are defending is closer to what you experienced in that other country than you are realizing.

    After all, as Atwater said: if you are getting sufficiently abstract, ongoing unfairness can be made to sound reasonable.

    As to the list of incidents you provided, I have zero doubt that universities regularly mess up Title IX adjucations – but not only Title IX adjucations. But neither Reason (apparantly) and DeVos (certainly) can be bothered to get worked up about these other injustices. That is not a coincidence. Because for DeVos (as well as many, but not all libertarians) the goal is not justice, but the preservation of traditonal power structures.

    ETA:

    James is right: Every person accused of a “crime” must be afforded both the benefit of the doubt and the full protection of the law. That is the core of our judicial system.

    FYI: This is NOT what James is saying. Because he clearly admitted he is totally fine with the existing procedures at his university – except, apparently, in cases of sexual assault.

    1
  50. drj says:

    To phrase it even simpler: if an administrative procedure is good enough to expel a student for non-sexual assault, it should be good enough to expel a student for sexual assault.

    A he-said/she-said situation should not be judged differently from a he-said/he-said situation.

    1
  51. smintheus says:

    @Mu Yixiao: You read and reason as poorly as Michael Reynolds. What you share in common it seems is a love of straw men. I said he should cite a single student who sought academic advantage for themselves by falsely accusing another student. As in: I can beat this plagiarism charge by accusing a random classmate of having written the plagiarized paper for me. As I have stated explicitly, and yet you still ignored: I never once claimed that students don’t lie about other students.

    1
  52. Mu Yixiao says:

    @smintheus:

    I said he should cite a single student who sought academic advantage for themselves by falsely accusing another student.

    Why insist on such a restriction?

    I said [Michael Reynolds] should cite a single student who sought academic advantage for themselves by falsely accusing another student.

    Michael has quite specifically said that “seeking academic advantage” isn’t a primary situation in which Title IX is invoked.

    “Seeking academic advantage” is utterly irrelevant. I have no clue why you’re setting that up as some sort of benchmark. The vast majority of the cases I’ve seen reported on are incidents between students. I can think of only one that involved a faculty member–and that was another faculty member using Title IX as a weapon.

    If James Joyner, Michael Reynolds, and I all agree on something…

  53. smintheus says:

    @Mu Yixiao:

    I have no clue why you’re setting that up as some sort of benchmark.

    Then maybe you should have tried reading what I said about it on this thread instead of leaping in to beat away at your own straw men. My original comment about why it matters could not have been more clear. I have restated it repeatedly on this thread. I’m not going to restate it yet again for you, because you could comprehend it if you wished to.

    “Seeking academic advantage” is utterly irrelevant.

    Wrong again. It may be highly relevant if it’s a faculty member who is being accused by a student.

    1
  54. Andre Kenji de Sousa says:

    @Gustopher:

    I do think it’s kind of insane for colleges to be investigating rape — that should require a referral to the police department.

    It is. Expulsion from college is pretty bland punishment for real rapists while destructive for people that are not rapists. It’s also infantilizing, it looks like something that a middle school, that can’t call the cops even for behavior that in theory would be a crime, would do.

    @smintheus:

    The chance that a student will be academically advantaged by lying about another student sexually assaulting him/her is so small that I defy you to cite a single such instance.

    The issue is that people have incentives to lie(Or misrepresent) about rape for any type of consensual sexual relation that he or she might regret. It might be sex with a instructor or with another student, for any type of reasons. If you have a boyfriend that might be convenient if you have consensual sex with another guy, and for obvious reasons minorities are more likely to be accused of rape.

    Part of the problem is that people likes to put bad sex and rape in the same box, so, part of the problem is that a student doesn’t even need to lie.

  55. @Gustopher: This isn’t a substitute for police referral. It’s “instead of” only when the claimant doesn’t report and won’t cooperate, and can be “in addition to.”

  56. My best friend from college is a principal official in a public university for administering this exact system. He called me Friday to solicit my input on whether to choose preponderance or CCE. I advocated CCE.

    Preponderance — an OK standard for moving around piles of money or settling property rights. Only rarely does moving money around alter someone’s life irreparably. Usually it’s just companies writing off losses on balance sheets which they recoup in tax avoidance.

    Beyond Reasonable Doubt — the correct standard for criminality (and in capital cases it should be “beyond a shadow of a doubt and free from bias”, but I digress). BRD is hundreds of years old, has constitutional grounding, and is a high standard when depriving a person of life or liberty.

    This is in between. It isn’t as high as criminality in terms of life altering effect, but it’s way beyond a “normal” civil matter — usually you get ONE chance at education that determines the prospects for the rest of your life. Whether you can afford to have a family. Whether you can afford to educate, shelter, feed, clothe and protect them. Whether you can provide for your own retirement or have to rely on the state for meager subsistence. So CCE is the right standard for this kind of life altering determination, and FAR too much of this system is administered by RANK amateurs wildly uninterested in participation. My friend told me he has had to cancel student misconduct hearings and chastise the participants several times because the participants (the factfinders, including tenured professors) had not read their preparatory materials and were only casually interested in being there, despite the fact a kid’s life was hanging in the balance. His perception was that among students participating, they are WAY more interested in pushing personal agendas (like #believeallwomen or #boyswillbeboys) than being objective factfinders on a weighty matter.

  57. smintheus says:

    @Andre Kenji de Sousa: There are multiple issues, including those I focused on. Do you imagine that you’re “correcting” me by pointing to a different issue?

  58. Andre Kenji de Sousa says:

    @smintheus:

    Do you imagine that you’re “correcting” me by pointing to a different issue?

    No. I was just pointing out that the idea that students have no reason to lie or misrepresent accusations of rape makes no sense at all.

  59. smintheus says:

    @Andre Kenji de Sousa: Who here has expressed that idea, apart from you?

    I’m truly astounded at the perverse misreprentation of other people’s arguments that have been on display by so many commenters on this thread. Willing or even eager to attribute the most profoundly stupid and untenable ideas to others, but not to read and comprehend what those people actually stated. Was this post linked at Redstate or Breitbart?