BearGoggles said:
sycasey said:
BearGoggles said:
The Obama guidance to universities (recently reversed by Devos) massively tipped the scales in favor of alleged victims and eliminated due process for the alleged wrongdoers. This was explicitly the intention and beyond dispute.
You have a tendency to say a lot of things are "beyond dispute" (or using similar language) when making a claim that would very much be disputed. For example, above you seem to think it's "beyond dispute" that Obama wanted to eliminate due process. Really? That's beyond dispute?
I'm not taking issue with the rest of your argument about University policies for adjudicating sexual-assault claims. It does seem that it's been quite a mess in some cases. I would just advise against making these kinds of absolutist claims; it taints the rest of your evidence.
I am basing what i said on the statements of the people who wrote the guidance as well as the fact that over 100 courts have determined that the rules implemented in light of Obama's guidance did not provide sufficient due process. The drafters/proponents of the guidance didn't hide their intention to tip the scales in favor of the "survivors"
Specifically, they changed the standard of proof to the preponderance standard most favorable to complainants despite the fact that the Supreme Court has ruled that the clear-and-convincing standard is appropriate for those civil proceedings where "particularly important individual interests or rights are at stake."
They also advocated for a variety of policies that eliminated or severely limited the right to discovery, of cross-examination, the the right to have representation of counsel, the right to have a neutral judge, etc. These are facts - and all of these reduced or eliminated well established due process protections for students (and others) accused of wrongdoing. These policies were widely adopted (if not universally)
I also note that Obama/Catherine Lhamon did this without following any of the typical rule making procedures (i.e., proposing rules and allowing public comment, etc.). That may seem trivial, but I'm sure you are outraged when Trump does similar things.
The changes were so clear and unambiguous infringements on due process, that even liberal Harvard law professors objects - this article lists many of the specific issues.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/15/28-harvard-law-professors-condemn-harvards-new-sexual-harassment-policy-and-procedures/?noredirect=on&utm_term=.454723f9ed30
https://www.weeklystandard.com/kc-johnson-and-stuart-taylor-jr/overruled-campus-kangaroo-courts-get-schooled
https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/
https://www.forbes.com/sites/georgeleef/2016/03/04/yet-another-good-reason-to-abolish-the-department-of-education/#5e2cd73716db
It's an administrative procedure, not a criminal trial. You're not going to jail; you're just getting kicked out of UC Berkeley. They're not remotely comparable.
The procedural protections present in criminal trials are
designed to stack the deck *against* the prosecutor. He can't just prove that you "probably" raped someone. He has to prove that you almost certainly did it. This means that lots of people who actually did commit crimes are getting off (or just not being prosecuted in the first place because the prosecutor doesn't think he can win) - ie, there's a lot of Type II error. And we accept that, because we consider the possibility of someone who actually didn't rape someone going to jail - ie, Type I error - totally unconscionable. Because they're gonna be locked in a metal cage for years on end.
But we don't have the same concerns in, say, expulsion proceedings, and intuitively, you probably understand that.
For example, I don't think we'd bat an eye at the idea of someone being kicked out for plagiarism, even if we didn't have totally dispositive proof that the person knowingly copied passages from another journal, rather than just like, innocently forgot to put quotation marks around it. We wouldn't say, "oh, you need to prove with 99% certainty that the person did it, and you have the right to appeal over and over again, and you have the right to a government-provided counsel," and so on. That's ridiculous. It makes it impossible to expel someone despite the fact that the consequences - you're kicked out of a prestigious school, and that's literally it - are honestly...pretty minor? The same is true of Title IX complaints.
Were we to impose those incredibly defendant-friendly proceedings, schools would just decide not to expel people in all but the most insanely over-the-top circumstances. There'd be Type II error.
Unfortunately, you're getting your wish. The Trump administration has promulgated new rules rolling back the Dear Colleague standards. The standards the new administration has proposed create greater protections for the accused--heightened evidentiary standards, a presumption of no guilt, right to cross-examination, and greater appeal rights--than you'd get in basically any other administrative proceeding, for basically no other reason than that they presume the people making complaints are liars.
The upshot of this is that it's going to be essentially impossible to kick someone out of school for sexual harassment/assault. People won't want to bring complaints, the school won't want to go through the hassle of bringing a case, and a lot of terrible young men get to keep being awful.
Don't take it from me. Take it from my fianc. She was drugged and raped at an Ivy League grad school during the Dear Colleague years, brought a Title IX complaint. The "accused" still graduated. And the police told her they'd never get a conviction.