For the life of me I don’t understand why government funded institutions run their own tribunals. Send it through the proper court system, if the accused is guilty you can expel them cleanly.
...I can fire him. I mean, obviously I need to go through the proper HR procedures, follow local employment law, respect the terms of his contract, etc., but I have no obligation to keep him employed if I think he's a net negative to my company. Arguably I have an obligation to not keep him employed. And I certainly have no requirement to wait until he has been convicted of a crime; it's not even clear any of the above is a crime.
Similarly, if I run a resort, and one of the guests is so unpleasant they're driving away other guests, or if I run a restaurant, and one of the guests is making other guests uncomfortable, or I run an apartment building, and one of the tenants is behaving poorly.
A university is a business. People come and pay money in exchange for a service, and if someone is interfering with the ability of other people to receive that service, or making people reluctant to come and pay money, it's perfectly fine for them to be asked to leave. If what they're doing happens to be a crime, then by all means, also report them to the police, but it's kind of odd to suggest that you shouldn't expel students except if they've been convicted of a crime.
That being said, I think universities are doing a terrible job here, and I think that given the extreme importance of a university education in modern life, the disruption that being expelled entails, and the stigma that will follow someone if they are expelled, we need to be very careful about the process here. My local dollar store will ban you from the store if they think you shoplifted, and I assume they get it wrong sometimes, but it's fine, because being unjustly banned from a dollar store does not ruin your life. Being unjustly expelled from university could! Things are broken and need fixing. But a world where you can only be expelled on conviction of a crime makes no sense either. The discussion need to be about the correct amount of protection needed.
This is a massive false equivalence. For one thing, most of the "employees" in your metaphor are eighteen to twenty-two years old. Not to mention the fact that students are regularly put through the ringer and expelled on the first accusation. It's hardly akin to the "repeat offense" scenario you outlined in your first example. And comparing being expelled for an alleged sexual assault to being asked to leave a resort for rude behavior? Come on.
This is a different situation than anything you described. Universities have much more of a guardian and stewardship role than an employer, and rape is a fucking crime. It should be handled by the mechanism we've created to handle crimes, i.e. criminal courts of law.
The fact that two things share a superficial attribute does not make them equivalent.
At a university, dating other students is so commonplace that a large portion of people meet their spouses that way.
Title IX may want to treat dating at universities with the same disdain as in the workplace, but it's not going to be an easy cultural shift.
And at a restaurant, being in a relationship with a fellow patron is quite common. Similarly, no legal or cultural ban against dating your room mate when you rent a house (much to the relief of married couples everywhere).
Students are (mostly) not employees of the university, but they are customers of educational services and (quite often) tenants. A university has a number of relationships to students, and a number of responsibilities, both to the (alleged) predators and to the larger student body.
I mentioned a startup situation in the hopes it would seem relevant to many here (surely we've all had at least one co-worker that was disruptive?), but trying to view this purely through the lens of employment law will get you nowhere.
https://www.reportlinker.com/insight/finding-love-online.htm...
This is to say that of course the poll at age 40 gives a very different result from the same poll at age 25.
The strange thing is that it is precisely this type of law that has created this situation. The Feds assert that if a university does not apply these extraordinarily dubious adjudication rules for sexual harassment and rape, then it is discriminating against women and is subject to losing any federal funding, including student loans, which effectively shuts down the university.
You're still a business if you're a non-profit.
> Almost all of them take Federal money
You're still a business if you accept government contracts.
> Classifying them as a business isn't accurate.
I mean, they act like businesses, and in most cases they very explicitly legally are businesses. They accept money in exchange for services. If not a business, what would you classify them as?
By that definition every nearly single non-governmental organization is explicitly legally a business, so stating that an organization is a "business" is meaningless.
A church, a soup kitchen, and fraternal lodge are also explicitly legally businesses as well, but it's not useful to classify them alongside for profit businesses.
Many very well off schools don't even charge students who make below a certain income, and the vast majority of their operating expenses come from donations--saying they charge money in exchange for a service isn't a very useful description of what they do.
This would be a valid comparison if the company in question were receiving massive amounts of federal funding, in which case, I would say yes the accused _does_ have a reasonable expectation of fair treatment. Why? Well the accused is also paying for the regulatory system in question.
It's not really possible to deny that these universities receive "massive amounts of federal funding" either, considering that receiving federal funding is the explicit motivation of performing these title IX tribunals in the first place.
Are you in the right as an employer to fire employee B without serious due diligence? To potentially ruin employee B’s life or reputation? Instead of letting it escalate to a real court case (if applicable)?
-Failing you from classes you are in with 0 refund.
-Permanent mark on your academic transcript you supposedly can't escape.
-Having to report to future employers you plagiarized.
Which is essentially asking guests to leave and utterly destroying half a decade of their lives and tens of thousands of their dollars in many cases. This is the part I take issue with. The dollar store you shoplifted from according to one "witness" has now come into your house, took all the groceries in it, and beat up your fridge.
Most universities and businesses (corporations) are government chartered and entitled enterprises.
And students can already be expelled without being convicted of a crime, e.g., if they get bad grades.
A state organization is legally bound to offer certain equal rights and due process protections, which is one of the trade-offs of having state schools.
That doesn't mean anything, one way or another, about how well these university tribunals work. It's just pointing out deficiencies in the existing court system.
Another way to think of it is balancing false negatives and false positives. The court system, ideally, errs on the side of minimizing false positives, because of how damaging they are for the accused. That inherently means more false negatives, and aspects of the process that are also much more burdensome for victims to navigate. Universities are trying to create an alternative system, where more false positives are accepted and consequences are less severe, and more focused on making sure the victim doesn't have to confront their rapist in day-to-day life than on life-altering consequences for the accused or protecting the public more generally from repeat offenses.
Now, you might disagree with this approach to any/all of the above, but this is the reason that answers your question.
Source: I work in higher ed technology, at times very closely with some of the disciplinary groups.
Sexual assault is much more complicated. If the accuser doesn't want to report it to law enforcement and press charges, the maximum penalty the school can inflict is expulsion. Historically this has been a problem in a variety of ways. First, schools have sometimes been accused of discouraging the accuser from going to the police. That problem has resulted in dedicated sexual assault response plans to avoid that sort of thing and work with the accuser to connect them to appropriate resources, counseling, etc. Beyond that, the school is in a bind: prior to either legal action or a school-based disciplinary hearing for violation of the code of conduct, it is punitive to inflict punishment like suspension or force schedule changes to avoid the accused coming into contact with their alleged victim. At the same time, if there was an assault, it can very much exacerbate the harm to the victim to keep things as they are. I don't know of a good solution to this. It often results in the accuser being the one that has to change their schedule or drop out to avoid coming into contact with their alleged attacker.
Again, I don't have an answer that both completely protects a victim from further trauma at the same time that it provides the accused with protection from penalty until they are found guilty. Personally, I think it helps the situation when the accuser is willing to go to the police because that opens up other options like a restraining order that can both protect the victim but also provides judicial review before the accused's rights and privileges are abridged. That is still far from ideal in many cases though. No easy answers here.
Student A and Student B have a class together. Their dorms are next door to each other. Student A rapes Student B. Is Student B expected to attend class every day with their rapist? To live next door to them? How could one expect Student B to maintain their academic performance in that sort of environment?
Currently the de facto assumption is whoever files a Title IX report first is the victim and whoever files second is the rapist. I'm sure you can see how this system can be abused: https://www.theatlantic.com/ideas/archive/2018/06/title-ix-i...
Let's even admit that forcing a rape victim to live in the same dorm as their rapist is untenable. So that option is off the table and one of them should leave, but in that case it would be the same burden (of leaving) on each class of victim and the tiebreaker should be innocent until proven guilty. On top of that, it may be possible to live in a different dorm or take different classes while remaining at the same school, which is a lesser burden than an innocent victim being forced out of the entire school.
Student A and B have consensual sex and then student B regrets it and claims student A raped her. Student A is now considered guilty from the onset and is banned from attending class and given no opportunity to read the charges against him or to refute his accuser.
Outside of universities, we've decided on a particular balance between the rights of the accused and the psychological well-being of the accuser. Perhaps we should change the system everywhere to more greatly favor the accuser and to lower the standard for guilt in cases of sexual assault, but I don't see why universities should have a different standard than the rest of society.
There absolutely should be a different standard for “can continue to be in this school” and “can continue to walk down the public sidewalk”, and also decided by different people.
But having a lower standard of proof means expelling people who haven't actually done what you're expelling them for. That's a whole other thing, and I'm very hesitant about it.
Of course, when the expulsions almost only happen to members of one gender, on the say-so of members of the other gender, it gets extra complicated.
>We’ll argue that this sort of deference is mistaken, for at least two kinds of reasons. One is that, as anti-rape activists have often emphasized, law enforcement procedures themselves are deeply flawed when it comes to their practice of dealing with sexual assault. Another has to do with the connections between knowledge and action, and between knowledge and knowledge ascriptions. We also think that these disparate considerations are more closely interconnected than it may at first appear.
Totally agreed. That doesn't justify instituting another unjust system to somehow counterbalance the existing unjust system. This just shifts the injustice to another class of people, it doesn't eliminate it, and human nature being what it is, people will exploit it for selfish ends.
You can only eliminate injustice by specifically addressing the injustice, not by moving it around.
No, I'm actually presuming that injustice cannot be weighed and compared. Statements like "equally or more unjust" are fallacious. If injustice is demonstrable, then we know where the injustice is and so where to focus our efforts, since presumably our goal ought to be eliminating injustice.
How does creating a whole new system that introduces its own problems and its own injustice further the agenda of eliminating injustice? Now you have two unjust systems.
This is HN, so consider the question of when it's appropriate to throw out a buggy program and rewrite it all from scratch, as opposed to gradually evolving the buggy system to a better state. Rewrites are occasionally justified, but it's widely recognized that this is a rare exception, and I'd argue for many of the same reasons.
> after all, it is undoubtedly easier to change the laws of a university body than to change them in society as a whole
That's not a priori a good thing. Laws should be hard to change. Attempting to bypass this process ignores all the reasons why laws must be hard to change.
The central position taken by the authors comes from MacKinnon's Marxist Theory of the State which argues that such change cannot happen within the state as it exists, with all the relations which have constructed it - the argument being that sexist injustice exists prior to the law, and in the law's veneer of equality, it assumes that there is no fundamental injustice to be corrected - the dogma that justice is blind works against justice, not for it. A system in which justice isn't so poorly sighted, and which, according to the authors, starts from the recognition of injustice prior to the law of the state, would be a just one. I'm not convinced that it's fallacious to talk of being "more" or "less" just, since I'm comfortable saying that a Western European country's legal system is more just than Saudi Arabia's.
>as opposed to gradually evolving the buggy system to a better state
Critical legal theory takes the metalegal position that this gradual evolution is impossible given the totality of relations which determine the law. That is to say, the law is a reflection of the society it rules over, its relations of power, of property, of information, knowledge and other things.
>Laws should be hard to change.
It's hard for me to take that as a priori a good thing when laws as they exist in any system reinforce a likely unjust status quo. The law being hard to change seems like a bad situation to be in if you were a Saudi Arabian woman who wanted to drive five years ago. Nevertheless, it circles back to the main point: there are different standards for the law governing society and the law governing a university.
I've read many fallacious arguments with a veneer of plausibility, but in the end, speculation must explain the facts. The fact is that sporadic revolution followed by iterative refinement only is the only approach that has enjoyed any reliable measure of success in any sphere of human knowledge. The law is not exempt from this.
> Critical legal theory takes the metalegal position that this gradual evolution is impossible given the totality of relations which determine the law.
The clear evidence of social and cultural progress must be remarkably inconvenient for critical legal theory.
> That is to say, the law is a reflection of the society it rules over, its relations of power, of property, of information, knowledge and other things.
And the law only has power in so far as the governed consent to be ruled by it. If you attempt to change it too quickly, you will instead induce bloody conflict. Social and cultural inertia exist.
> Nevertheless, it circles back to the main point: there are different standards for the law governing society and the law governing a university.
I'm sure there are. I still don't see the justification for it, but thanks for the attempt.
This is a really hard problem because you want victims to be helped and not have to go through a grueling process for something they didn’t bring upon themselves, but simultaneously you don’t want to enable false accusations which would put undue burden on someone who didn’t bring that upon themselves either.
The question at hand is whether or not things have gone too far.
I think it's fairly clear that it has, at this point.
1. Sexual assault is defined so broadly it's virtually impossible to legal have sex. "Can I hug you?" "Yes" "Can I kiss you?" "Yes" "Can I squeeze your butt?" "Yes" etc. Did you kiss their neck without asking for and receiving positive, enthusiastic consent? That's sexual assault.
2. There's no recourse if there's an accusation. Notification of a complaint is stated in the form of expulsion. Once expelled, there's no appeals process.
There can and should be an extra judicial system to expect offenders. But this is the wrong one.
Asking whether it has gone too far is like asking if someone died too much. This problem currently has no good solution -barring a true “lie detector”, but even that is insufficient because people can believe things that didn’t happen as they recall, etc., you’d need something more like a “reconstruct the scenario do we the jury can interpret”
The exceptions are related to things like civil asset forfeiture, which are of questionable constitutionality and are similar to the rules we're discussing insofar as they are both worthy of contempt.
The protections afforded to both the accused and the accuser are to provide safeguards for everyone involved.
Because it's not a law, it can't be ruled on in court.
Because it can't be ruled on, they use this form of arbitration to solve what would be a civil matter if the school was a private entity.
Its not nearly as unreasonable as you make it seem.
The point in this case is that it isn't. Both the policy and the procedural rules are imposed by federal requirements.
If it was actually a policy of the school then it would be non-uniform and students could avoid schools with unreasonable policies, or push for changes to the local policy that are more achievable than it is for an individual to change federal policy.
See footnotes 10 and 12, which lay out the precedent that sexual assault alone could create a hostile environment.
What apparently did change was that prior to the letter some schools applied a "clear & convincing" standard to adjudicating harassment complaints, while the letter demands (citing some precedent) that the proper standard is "preponderance of the evidence". See pp 10-11.
But I don't think that's the critical change. From what I can piece together, the Obama letter was basically a notice that regulators were going to put more effort into enforcing the existing law. This type of shift of emphasis is common. When that notice went out, colleges did as all large organizations do to show obeyance--they made a show of reviewing their procedures and requiring completion of more sexual harassment training by their personnel.
Coincidentally (or maybe not so coincidentally) there was some new "science" about the psychology of sexual assault that had begun to dominate the discourse. And one researcher in particular, Dr. Rebecca Campbell, gained widespread recognition and invitations to "educate" college administrators on matters of sexual assault. Dr. Campbell's ideas have since been roundly rebuked (if not completely rejected), but for a few years they figured heavily into how some colleges designed and applied their adjudication procedures. See https://www.theatlantic.com/education/archive/2017/09/the-ba... for the long story.
But for this bad "science" making the rounds, I think the Obama-era increased enforcement would have mostly gone unnoticed, save for marginal changes in the speed and resolution of sexual assault complaints.
EDIT: And there it is in this article: "But she also described with astonishment a training session she had attended in which the concept of 'trauma-informed investigation' was taught." That's the Dr. Campbell research, likely presented by Dr. Campbell herself.
Remember, the defendant as far as the law is concerned is the university, not the accused student(s). These rules are about requiring the school to provide procedures to address its own conduct; namely, permitting a hostile school environment. Which brings up another point: can a school even be considered to have permitted a hostile environment if they haven't been given the chance to remediate things before initiation of a federal lawsuit? Thus, these rules for internal, administrative adjudication are also about setting standards for judging whether a school has willfully or negligently permitted a hostile environment.
The problem is that in their zeal to avoid being adjudged as having permitted a hostile environment they've in some cases crafted administrative procedures that unfairly treat the accused. But the accused can also make similar claims against the university--that the adjudication procedures sexually discriminated against them. So there's back pressure, it just requires time for things to settle into an equilibrium. (See my post elsethread about the cause for the recent radical shifts.)
I'm confused, a student being racist against another student is not a crime as far as I know. A student raping another student is a crime. How are these remotely comparable?
A rape is a crime, but a rape followed by the ongoing presence of the rapist also equates (under legal precedent) to a hostile environment for the student victim, which is how Title IX comes into play.
The question was why are universities conducting these investigations. Rape plus ongoing presence of the rapist is considered a form of sexual discrimination by the university, in so far as the university willfully permits the rapist's ongoing presence. Thus the university is put into the position of judging the credibility of any allegations.
In this way it's also identical to the racial epithet scenario. Shouting racial epithets isn't a crime or even illegal, but a university that doesn't stop such ongoing behavior among its students is considered to be illegally racially discriminatory against the target of the epithets.
This doesn't follow. The sexes of victim and perpetrator can be changed arbitrarily without affecting the argument, in which case this has nothing to do with the sex of those involved. So in what way is this sexual discrimination, even if it is a "hostile" environment for the victim?
> Shouting racial epithets isn't a crime or even illegal, but a university that doesn't stop such ongoing behavior among its students is considered to be illegally racially discriminatory against the target of the epithets.
Except we come again to the fact that racial epithets are literal expressions of racial discrimination, but as per above, I don't see how the rape scenario qualifies under any defined legal term of sexual discrimination.
The people pushing this aren't in it for fairness or due process.
"This ideology is a successor to liberalism. It brandishes terms that superficially resemble normative liberalism—terms like diversity and inclusion—but in fact seeks to supplant it. This new regime, in which administrative power has been fashioned into a blunt instrument of deterrence, marks off a crucial distinction—between the liberal rule of law, and the punitive system of surveillance rooted in identity politics known as 'social justice.'”
... but I felt that coverage was a bit thin and-- lacking a better phrase-- subjective. Perhaps the continuation of this series will be more substantive, it seems off to a good start.
And movie distributors and Boy Scouts are not the government. And when a private organization deals unfairly with a private person, due process is still available in the form of a court proceeding (e.g. a suit for unfair termination), but in this case that would either be dismissed (e.g. because the school was following federal requirements) or put the school in an impossible situation where the federal requirements require them to use an unreasonable procedure that subjects them to legal liability by an innocent accused person.
Consider, for example, the premise of 'rape culture' which was popularized a few years ago. If such a claim concerning culture is to be made, then it implies the judicial systems external to the institution are reinforcing that culture, and the only way to prevent that from being a part of the institution is to override it with your own judicial system.
Similar logic could be used regarding other sociological claims made in private institutions that they must reinforce in this way.
Zooming out a bit, I don't think the civil/criminal courts failure to be suitable for handling an academic complaint constitutes a reinforcement of rape culture or anything else. That's akin to saying "by not doing something about [some injustice] you're complicit" which is not necessarily true.
True, but nothing prevents an internal committee from simply acquiring the results of the court and applying sanctions on that base. In fact you don't even need an internal committee, you just need a general rule that applies automatically.
Any number of institutions have their own committees to judge bad behavior - civil courts of all sorts multiply in a bureaucratic society and colleges just one example of a bureaucracy and one strongly connected to many others in this society.
They do all take federal money though...