DeVos’ Title IX regulations restore justice to campus

Sounds like a good, overdue change. In any accusation, both sides should be thoroughly questioned. Both sides should be allowed to present their evidence.

The first one to plead his cause seems right, until his neighbor comes and examines him. -Proverbs 18:17 NKJV

Do not judge according to appearance, but judge with righteous judgment. -John 7:24 NKJV

David R. Brumbelow

One thing to note here is how the main issues are framed. Over the past decade, a large number of campus discipline moves have been overturned in the courts, mostly because of a total lack of cross examination (two circuit court decisions) and a low threshold for conviction (preponderance of evidence). For the most part, you have two realities balanced against each other; defense attorneys in criminal sexual cases formerly used cross examination to brutalize accusers—that’s why most states have “rape shield” laws prohibiting examination of an accuser’s sexual history in most cases, for example. It’s also why most states allow cross examination only by the representative of the accused, not by the accused himself.

But that noted, yes, you do need things like cross examination when the case is built on eyewitness testimony. I was hoping in this case that the DoEd was following, or perhaps even improving on, ~4 decades of practice allowing the counsel for the accused to privately do cross examination, but this article quotes Rachael Denhollander suggesting that it actually allows the accused to do so without those historic protections. Whatever you think about her, she usually does her homework on these things.

Yes, let’s fix the vandalism the Obama administration, and Joe Biden in particular, did to these proceedings, but let’s not do it at the cost of making a difficult path even more brutal on victims.

She may do her homework, but in this type of case she has an agenda — supposedly protection of the victims. I think we would agree that that’s generally a good thing, but I can’t agree that “victim protection” is all good if such protection comes at the expense of due process (including the ability to face the accuser) and presumption of innocence for the accused. This is why judges (and the whole process) cannot advocate for either side. Also, unless you’re taking away the right of the accused to be his or her own defense, it will be impossible to completely prevent the accused questioning the accuser. That doesn’t mean that such questioning can’t occur in a setting where the accuser has all the necessary protection of his or her own counsel and a presiding judge.

Colleges should not be involved in the judicial process at all, and all such cases that come to the attention of administration in a college need to be turned over to the civil authorities (who can also determine what temporary protections are in place for the accuser), rather than handled in house. Failing that, at least these new standards take a good step in the right direction to eliminate college kangaroo courts.

This is why the victim/survivor should go to the POLICE and not a church or school or anyone else.

How many times do we see this tactic fail? I cannot for the life of me figure out why so many “victims of crime” will not go to the one place they can get justice. I know it is hard, but they often already report, just to the wrong bureaucracy.

When you go into the police station on campus there is one room with 100+ video screens recording 300 cameras. There is even more now since they have installed cameras in every stairwell and hallway.

In my 12 years here lots of women (I am not aware of any guys) who have claimed to have been raped on campus. They file a report against the university for not protecting them. The school then goes to the video. Every time so far they have had clear evidence the sexual encounter was consensual. One time this happened in our chapel… The woman who made the charge kept coming after the school. Wouldn’t drop it. Finally, the school released the video of her making out with the guy in the parking lot, then playfully leading him to the chapel. Then undressing him in the chapel. They stopped the video there. She dropped the case. Up until the video release the local media had been 100% on the woman’s side. They then dropped the story.

See this Forbes article. Mrs. Denhollander is, as usual, correct; see the final paragraph, which is a quote from the regulations. The Department of Education, in giving leeway for universities to structure cross examination, are indeed providing a framework in which the accused can interrogate the accuser if the school formats their program that way, a violation of best practices going back about four decades. I personally believe the new guidance is an improvement over the Obama/Biden vandalism—vandalism that of course Joe Biden would never tolerate in his own sexual harassment/assault accusations—but I think in this regard, DeVos needs to go back to the drawing board and use, or even improve on, what has been learned in the courts.

Regarding the notion that it should just be in the courts, I’ve entertained that notion myself, but the reality here is that this misses what TItle IX is, and what colleges and universities are. Like our employers, they have “club rules”, and Title IX simply reflects the significance of the schools to the nation (esp. for people/job development), as well as the reality of federal funding. There can be a really good debate over specifically what requirements those ought to be, but I don’t know that we could get rid of those regulations altogether.

One final note; let’s dispense with the bad habit of saying that someone “has an agenda”, or claiming that the desire of advocates to help is “supposed.” We all have an agenda, and if Mrs. Denhollander’s was any more transparent, it would be glass. As I’ve noted elsewhere, “has an agenda” is generally shorthand for “I want to dismiss the argument without addressing its premises.”

Moreover, she didn’t pour hear heart out in affidavits, court filings, and a book because her support for victims is “supposed.” She didn’t wear out the family minivan to attend hearings for Larry Nassar and spend large amounts of time separated from her children because her support for victims is “supposed.” As her book documents, she doesn’t spend large amounts of time on the phone with other victims because her support is “supposed.”

It’s fair to examine her claims factually, and it’s fair to ask the question “will what she recommends really help victims?”. But let’s stop the pot shots.

[Bert Perry]

As I’ve noted elsewhere, “has an agenda” is generally shorthand for “I want to dismiss the argument without addressing its premises.”

Hardly. I’m not saying all of her arguments are bad. And I’m not questioning her desire to help victims. So maybe I phrased it poorly by using “supposedly,” but it *is* an agenda. The reason I used “supposedly” is because before actual guilt or innocence has been determined, it appears *to me* she really means helping the accuser. If the accusation is false, the accused is actually the victim, and I’m reasonably certain that’s not the victim she means to support, though I admit that’s just surmisal on my part.

But my real problem with this type of one-sided advocacy is that if such advocacy is ever seen as somehow equivalent to justice (and it’s often painted that way), it comes at the expense of true justice (i.e. blind), which is necessary for both the accused and accuser to have their rights protected. The accused should have a right to face the accuser (with appropriate protections for the accuser, e.g. virtually). And by the way, defense attorneys also have an agenda to get their clients off, often even if they are guilty (since I don’t really believe there are many, if any, white-knight lawyers in the vein of Perry Mason who would refuse to try to get their clients off if they are guilty). That’s why this process cannot be determined solely by those who campaign for victim’s rights any more than it can be by those who campaign for the rights of the accused.

Even your Forbes article says this: “What about the tricky question of cross-examining the accusing student? According to Department of Education, the new Title IX guidance: “anticipates the potential for retraumatization of sexual assault victims and mitigates such an effect by ensuring that a complainant (or respondent) can request being in separate rooms for the entire live hearing (including during cross-examination) so that the parties never have to face each other in person, by leaving recipients flexibility to design rules (applied equally to both parties) that ensure that no party is questioned in an abusive or intimidating manner, and by requiring the decision-maker to determine the relevance of each cross-examination question before a party or witness answers.” This is exactly what I’m referring to, and while Denhollander might be fighting against this, I believe it’s a major improvement to the process.

Schools may have to do “something” in addition to turning the case over to the civil authorities, though I’m not sure exactly what that is, but any determination of guilt or innocence in an event that implies or outright states a crime occurred should absolutely go through the courts, not a school substitute for such. And to be honest, IMO, given the expense of school today, and the way the press works, there should be legal protections for students to not only not be thrown out of school, but to also not have their reputations (e.g. branding them a sexual abuser) sullied in the news from a decision by the school without benefit of due process of law. Schools are not equipped to handle trials, and should not be in that business.

According to this article:

https://www.post-gazette.com/opinion/editorials/2020/05/19/Title-IX-rul…

“Importantly, the accused has the right to written notice of the allegations and to cross-examine his or her accuser and witnesses. Direct questioning of an accuser by the accused isn’t permitted, but a representative or attorney can ask the questions.”

If accurate, this not only brings some needed balance, it should answer any objections from those supporting the accusers about being directly questioned. Again, the latest changes to Title IX are definitely a step in the right direction. Unfortunately, schools are still permitted to choose the lowest legal standard of “preponderance of the evidence” instead of being required to use “clear and convincing evidence,” so these changes are only a first step. However, it is encouraging to see the changes so far.