College sexual assault tribunals back in the news

Betsy DeVos is taking a break from running what is essentially a massive financial services enterprise (the Department of “Education” spends the vast majority of its money on student loans to subsidize American colleges and universities). She’s contemplating dismantling the Obama Administration regulation that forced schools to set up amateur-run sexual assault tribunals with a 51-percent standard of proof. See “Campus Rape Policies Get a New Look as the Accused Get DeVos’s Ear” (nytimes) for example.

I think the best source of information about this topic is found in Missoula: Rape and the Justice System in a College Town (a.k.a. majoring in partying and football), a book by John Krakauer. The book gives the texture of modern campus life (debauched to the extent that the Roman would have been shocked) as well as the texture of the tribunals and regular criminal courts handling sexual assault allegations. You can learn a lot from the book even if you don’t agree with Krakauer that standards for convicting men should be much lower (he does not like either presumption of innocence or “beyond a reasonable doubt” when it comes to litigation following heterosexual sex).

It turns out the government has figured out the same thing that you will after reading Krakauer’s book, i.e., not every American is addicted to OxyContin… college students are usually too drunk to get through the child-proof pill bottle caps:

“Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,’” [Candice E. Jackson, the top civil rights official at the Department of Education] said.

I’m wondering if the Trump Administration can have any practical influence in this area. There are currently three systems that operate in parallel. A person accused of rape can be prosecuted criminally in a criminal court (penalty if guilty = prison; penalty if found innocent = $1 million spent on legal fees) and simultaneously prosecuted within the university (penalty = being kicked out without a degree and forfeiting $200,000+ in tuition and fees paid) and simultaneously sued in civil court (penalty = paying a guaranteed $1 million in legal fees to defend the lawsuit through trial and then, if a jury finds 51% likelihood of assault, paying additional money to the plaintiff). The civil and criminal courts aren’t going anywhere. But suppose that Secretary DeVos writes a “Dear Colleague” letter saying “You don’t have to run these tribunals anymore. You can tell people who’ve been assaulted to call 911.” Which universities are going to say “we will tear down this administrative process because we don’t care about rape anymore”?

Some comments from the Times article for the Zeitgeist (at least among Hillary Clinton supporters):

[soxared] It says here that Betsy DeVos is far less interested in sexual assaults on college campuses. She’s more interested in aiding and abetting her boss’s determination to chop down every and any Obama administrative rule, regulation, executive order or directive. She isn’t fooling anyone. Why should she care about victims of sexual predation in academic settings? Her job is to Christianize every American school in America and this charade is the merest show.

[gordy] This woman, DeVos, makes me ashamed to call myself Christian. There is nothing Christin about her shameless attitudes.

[pjswfla] There is something profoundly wrong and evil lurking in the alleged mind of Betsy Devos. She seems to be against anything that makes common sense for students, their decent education, their finances and their well being. Makes sense, come to think of it, when you consider the idiot who appointed her who denies truths – who would not know a truthful statement if it hit him in his orange mug like a brick.

[AP] During undergrad at a huge Big Ten school, I watched the ineptitude of faculty/administrators trying to manage basic behavioral issues with suboptimal results let alone rape cases. … As a woman I take offense at those who refuse to acknowledge the poor judgement and party culture of college life helps foster these crimes. While my friends and I hit the books for our honors degrees and grad school, we watched girl after girl weekend after weekend get amazingly drunk and with horror see them laugh over it and the compromising sexual situations that arose from it. …  Drop the idea that young adults are “entitled” to be in college, the notion that college means partying and some voyage of exploration that focuses on gratification and pulverize the thought that a woman is unable to use her cerebral cortex to comprehend that alcohol plus a dark room at 3am with equally drunk men is a potential set up for mayhem.

[Barry] I think maybe more women ought to be armed. That might cause some males to have second thoughts before proceeding. [Now there will be alcohol, sex, and guns at the party!]

[SD]  Campuses don’t generally share their outcome rates, but Stanford did on May 31: 24% of allegations were thrown out as invalid before ever getting to the investigation stage, and 50% of accused students tried in a hearing were found “not responsible”. Under a preponderance standard, that is equivalent to saying the accused was likely to be innocent. In other words, over half of the accusations were false, unfounded, or just too dubious to be investigated or to receive a decision of “responsible.” NCHERM [ National Center for Higher Education Risk Management!] reports rates of 60% (see their 2017 white paper, page 15). And those are under DCL conditions discouraging cross examination and participation by an attorney, and where there are no penalties for false testimony.

[aeg] [college students] may consider NOT proceeding with intimate behavior before a 24 or 48 hour “get acquainted” or cooling off period…or longer? Hum…no more “one night stands?” [Given the 48-hour interval, assuming that Lover N+1 is not contacted until one day after the student is finished with Lover N, this would limit a college student to no more than approximately 487 sex partners over a 4-year period.]

[Elly] My daughter’s first night away at school… Four drunk people in her dorm room have sex most of the night. [Consistent with Krakauer’s book.]

[William Case] The comments reveal that many readers think that Title IX investigations involve sexual assaults that take place on campus, but almost all take place off campus at private residences. Colleges and universities should not be held responsible for investigating crimes their students commit away from campus during non-school events.

[GSA101] Title IX, as written, prohibits Universities from failing to provide equal educational access on the basis of gender. Since extramarital sex is NOT part of the curriculum of any University that I know of, the Universities are simply not responsible for their students’ activities in that regard. Therefore, they are NOT required to investigate or adjudicate such activities.

[AMarie] Is there a reason the women can’t use the court system to get a restraining order? Those already exist, the burden of proof is much more reasonable (it isn’t a conviction, after all) and it would prevent the assailant, I mean, “accused,” from going on the campus. [Certainly this works for alimony and child support plaintiffs!]

[TOM] It is about time that people realize that perjury does occur for many reasons and no reason at all, and due process is the only way we have a hope of having justice, even if it is a slim hope. [See our litigation chapter for an attorney’s point of view on whether judges can discern the truth: “People who are crazy and sociopathic are great witnesses. They can lie without batting an eye and sound completely credible. That’s why con artists thrive. If we were good at assessing credibility none of us would ever get ripped off.”]

[Jon] I think Donald Trump is destroying this country and an oppose everything I have heard associated with him and his administration. I work towards preventing his policies being implemented. He must be stopped. But this could be the only exception among his policies… if this policy gets rescinded, then perhaps one single good thing would come out of Trump’s election. I never thought I would write something like that. [!]

[Michael] Ms. DeVos, like the man who appointed her, is manifestly unqualified for her role in government; that said, it is a huge relief that the Education Department is finally taking action to rein in the excesses of college sexual assault proceedings. In an effort to comply with the Dept’s Title IX guidelines, universities have adopted policies that would provoke alarm and outrage in any other setting: the accused are denied access to evidence in the cases levied against them; most are denied the right to counsel. Administrators who adjudicate these cases are vulnerable to campaigns of influence and intimidation by students or faculty members with a stated political interest in a guilty “verdict.” Even if exonerated, the accused are routinely forced out of their dorms and even their majors.

[Alina Starkov] Disgusting that those accused of rape are getting any sort of lenience from the government with regards to the schools.

[Deb] Somehow this doesn’t surprise. Betsy Devos’ boss publicly stated his fondness for and skill at successfully committing sexual assault, and how easily he got away with it.

It seems that even in a community of readers where nearly all could agree on the superior virtues of Hillary Clinton, they can’t agree on this issue. The commenters are divided and there seem to be almost as many rationales as commenters.

[You might ask what is my personal perspective? I wrote it up for the Times:

Stepping back from this I’m surprised that nobody asks (1) Why do colleges run dorms and sponsor fraternities/sororities and thereby take on responsibility for what happens during these parties? Why not run classrooms and labs and concentrate on education per se? (2) Why do Americans invest so much money in parking young people for four years in an environment so undemanding intellectually that they can be drunk every night?

]

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18 Comments »

  1. J. Peterson

    July 13, 2017 @ 2:34 am

    1

    Why do colleges run dorms and sponsor fraternities/sororities and thereby take on responsibility for what happens during these parties?

    Certainly for schools in major urban areas, dorms are the only hope many students have of finding remotely affordable housing anywhere near the campus.

    But I’m mystified why any university would put up with frats/sororities. Given the liabilities of (occasionally fatal) hazing incidents, drug/alcohol abuse and sex assaults, what possible reason is there to allow them?

    I recall meeting an ex frat-rat when I was still living in the dorms. He’d moved out of his frat after realizing every last one of his housemates was a full-blown alcoholic.

  2. philg

    July 13, 2017 @ 8:58 am

    2

    J: Aside from not having to pay real estate taxes on their for-profit dorm operation, what special advantage does a college have in running a dorm? What stops an independent company from purchasing some of the existing dorm buildings and running them? Just the other day I was in Portland, Maine and saw a new apartment building next to the University of Southern Maine. The building had a big banner advertising “student apartments.”

  3. Neal

    July 13, 2017 @ 9:33 am

    3

    @philg: Getting out of the housing business solves the problem for the University but doesn’t solve the problem. By removing a relatively safe and easy housing option It also creates a substantial new burden on the families of incoming freshmen during an already difficult transition period.

  4. Neal

    July 13, 2017 @ 10:47 am

    4

    >what special advantage
    >does a college have in
    >running a dorm?…
    >The building had a big banner
    >advertising “student apartments.”

    In the dorms there is still a supervisory structure which does, in fact, moderate student behavior. A student with a bad roommate in a dorm room has recourse through that structure. If nothing else, this gives them some leverage when negotiating with their roommate. A student with a signed lease and a bad roommate they met through Facebook is in a much worse position.

  5. philg

    July 13, 2017 @ 10:50 am

    5

    “Safe and easy housing option”? How is a place where students gather to get drunk and have sex “safe” by current standards? I don’t think that a commercial landlord would encourage residents to run the kinds of parties that students currently set up in dorms.

    Barack Obama told us that a woman living at a college has a 1 in 5 chance of being sexually assaulted (see https://www.washingtonpost.com/news/fact-checker/wp/2015/02/12/obamas-claim-that-one-in-five-american-women-have-been-raped/?utm_term=.8ee7746ca0bf ). If we can believe President Obama (and why would a politician lie to us?) and we assume that the classroom itself is a rape-free environment, that means the dorm is anything but “safe.” How could commercial landlords do a worse job of keeping their customers safe than universities have done?

    Separately, now that American childhood lasts until 25 or 30, maybe students should do their bachelor’s degree locally and continue to live with their parents, as is typical in Europe and Russia.

  6. Greg

    July 13, 2017 @ 10:58 am

    6

    Please excuse my ignorance, but why are allegations handled by tribunals instead of by law enforcement and the criminal justice system?

  7. Neal

    July 13, 2017 @ 11:06 am

    7

    >“Safe and easy housing option”? How is
    >a place where students gather to get
    >drunk and have sex “safe”
    >by current standards?

    I did say “relatively”. At my daughter’s University at least (last year), the parties you are thinking of occurred at Frats, not dorms. The dorms, by contrast, were relatively “safe”. Not necessarily drug/alcohol/sex free, but discretion was required which moderated the behavior.

    >I don’t think that a commercial
    >landlord would encourage residents
    >to run the kinds of parties
    >that students currently set up in dorms.

    Commercial landlords have no real structure in place to encourage or discourage such parties.

  8. philg

    July 13, 2017 @ 11:06 am

    8

    Greg: The tribunals are not “instead of” criminal courts, but “in addition to.” As noted above, previously a college student accused of sexual assault could be attacked in two venues: criminal court with a “beyond a reasonable doubt” standard and civil court with a lower standard of proof. The Obama Administration required colleges to open a third venue. It is unclear to me that the Trump Administration can actually require colleges to shut down this third venue.

    Neal: “Commercial landlords have no real structure in place to encourage or discourage such parties.”? Have you ever lived in a commercial apartment building? To the extent that such buildings have party rooms (the full-service ones often do), do you think the building management would say “Sure, go ahead and have a loud party that winds down at 4 am and where there is a lot of drinking by guests under age 21 and also sex in the corners between people who are but slightly acquainted.”?

  9. Neal

    July 13, 2017 @ 11:09 am

    9

    >Separately, now that American
    >childhood lasts until 25 or 30,
    >maybe students should do their
    >bachelor’s degree locally and
    >continue to live with their parents,
    >as is typical in Europe and Russia.

    Straight to four-year University is definitely overrated; live at home and go to community college is a better option for many kids.

  10. Neal

    July 13, 2017 @ 11:15 am

    10

    >Sure, go ahead and have a loud
    >party that winds down at 4 am
    >and where there is a lot of drinking
    >by guests under age 21 and also
    >sex in the corners between people
    >who are but slightly acquainted.

    Frats, not dorms.

  11. Neal

    July 13, 2017 @ 11:24 am

    11

    Expanding on #10: Yes, students could not have a frat style party in a private apartment, but they don’t have them in dorms either. However, a dorm does have structures in place to moderate the kind of behavior which actually does occur in dorms, while a private apartment does not.

  12. philg

    July 13, 2017 @ 11:27 am

    12

    Neal: That makes sense to blame the frats. Thanks to the wise administrators, I’m sure that current dormitory parties are centered around drinking lemonade and Bible study.

  13. Neal

    July 13, 2017 @ 11:41 am

    13

    @philg: I didn’t say there wasn’t a problem. I said that shunting Freshman to private housing would not solve the problem and would create new burdens if not new problems.

    The anecdotal evidence I have from a recent, reliable, first-hand witness is that the dorm parties (at one particular University) are nothing like the frat parties there.

  14. philg

    July 13, 2017 @ 11:52 am

    14

    Your first-hand witness went around college campuses asking “Can you tell me which fraternities or dormitories have the most alcohol and casual sex at their parties? Asking for a friend.”?

  15. Neal

    July 13, 2017 @ 12:03 pm

    15

    My witness was a Freshman last year and attended both dorm and frat parties at this university. I am confident they know both scenes well, and that they reported the conditions with sufficient honesty for the purposes of this discussion. Yes, drugs/alcohol/sex occur at both. The level of debauchery (to use your word) was much much worse at the frats than in the dorms (making the dorms “relatively safe”). I know the witness and you do not, so it is my assessment of their reliability we should be using.

  16. GermanL

    July 14, 2017 @ 4:11 pm

    16

    Interesting comment:

    “More toxic is how feminists lump ‘rape’ and ‘sexual assault’ together. According to the U.Michigan, an assault happens when a woman is coerced into sex. An example of such coercion is when a man threatens to end the relationship due to a lack of sex. Imagine that: he ends the relationship due to no sex and he is now a sexual assaulter.”

  17. philg

    July 15, 2017 @ 12:03 am

    17

    Neal: I’m not doubting the veracity of your witness! I just wanted to know how the research was done!

    [Separately, let’s assume that frats are currently the preferred venue for college students who want to binge drink and have sex with recent acquaintances. If the frats are shut down, will those students say “I guess it is time to take up chess”? Or will they move their binge drinking and sex to the dorms? If so, wouldn’t it be better to get rid of both dorms and frats? Build space for students to work and learn together. Let them go elsewhere to sleep and, if they feel they must, party. (Plainly it is a non-starter to increase the level of academic rigor so that students couldn’t have binge drinking as a regular hobby.)]

  18. Neal

    July 15, 2017 @ 11:09 am

    18

    At the university I am acquainted with, the dorms have stricter rules and are much better supervised than private apartments, so I would expect the venue to move to private apartments rather than the dorms (albeit with much more discretion than at frats).

    The dorms do provide services which are not available in private apartments, and these services are of value to students and parents. I’m not convinced that it makes sense to give up those services on an assumption of what students will do. It would be better to proceed step wise and then make decisions based on what students actually do in reaction to the changes.

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