An Argument is Not a Fight
October 22, 2017 8:07 AM Subscribe
EQUAL MEANS EQUAL et al. v. US Department of Education and Betsy DeVos is a lawsuit filed filed four weeks after Devos replaced Obama adminstration guidance for campus sexual assault or abuse investigations with new instructions that permit universities to require criminal standards of evidence in adjudicating civil rights complaints. The federal complaint is here. Plaintiffs argue facts of law that show Ms DeVos not only exceeded authorities vested in the DoE, the new instructions to university administrators violate MA and federal constitutional protections. [previously]
I agree that the standards are jacked up, but I'm not sure how they would violate federal constitutional protections if the new standards are requiring everyone be held to criminal standards currently existing in the 50 states. Does anyone know more on that angle?
posted by corb at 8:39 AM on October 22, 2017 [1 favorite]
posted by corb at 8:39 AM on October 22, 2017 [1 favorite]
I have been wondering how the administration generally regulatory approach, especially the "eliminate two regulations for every new one" wasn't going to constantly run afoul of the APA. I'm curious to see how this plays out.
posted by Bulgaroktonos at 9:40 AM on October 22, 2017
posted by Bulgaroktonos at 9:40 AM on October 22, 2017
The complaint alleges that DeVos would create a separate and higher standard for the investigation sex-abuse allegations versus other forms of civil rights violations, which (the plaintiffs contend) violates Title IX and is generally a violation of constitutional due process. Note that this is all about the new rules -- DeVos would presumably have been on safer statutory/Constitutional grounds if she simply had rescinded the 2011 "Dear Colleague" letter and returned things to the status quo ante. Of course, the status quo ante was a very contentious one where colleges differed dramatically in how they handled allegations -- some doing little or nothing other than hand things over to the cops, some having procedures with a full presumption of innocence, no pre-adjudication penalties, strong counsel rights, confrontation of complainants rights, and a clear and convincing standard of proof, and some having procedures already quite akin to those advocated expressly and implicitly by the "Dear Colleague" letter (preponderance of evidence burden of proof, bans from parts or all of campus solely on accusation, limited access to counsel or confrontation of witnesses against, etc).
In general, this is a great example of how the Trump efforts to "undo the Obama administration" are usually failing. No one can credibly argue that he can't rescind any Obama executive measure, or that he together with Congress can't rescind any Obama legislation ... it's the replacements that they want to or feel compelled to put in place that are often can't get the votes or can be blocked by judges.
posted by MattD at 9:43 AM on October 22, 2017 [12 favorites]
In general, this is a great example of how the Trump efforts to "undo the Obama administration" are usually failing. No one can credibly argue that he can't rescind any Obama executive measure, or that he together with Congress can't rescind any Obama legislation ... it's the replacements that they want to or feel compelled to put in place that are often can't get the votes or can be blocked by judges.
posted by MattD at 9:43 AM on October 22, 2017 [12 favorites]
The Department of Education is usually referred to as "ED" to avoid confusion with the Department of Energy (DoE). It's not a big deal for this post and it's not a criticism, just something to know and look for when reading documents written by purported "experts" in this field. Personally, I like to think of a clueless bureaucrat named Ed who continually makes bumbling decisions...
posted by ElKevbo at 9:54 AM on October 22, 2017 [4 favorites]
posted by ElKevbo at 9:54 AM on October 22, 2017 [4 favorites]
The article includes the quote from the complaint: “require that offenders of sex-based civil rights harms receive the same rights and/or treatment as victims of civil rights harms.” But doesn't that prejudge the output of the complaint? Before the adjudication process is completed, we don't know if there actually is an offender at all.
It's probably closer to "require that people who may or not may not be offenders of civil rights harms receive the same rights and/or treatment as people who may or may not be victims of civil rights harms.” That's how we treat other serious crimes, and I think it makes sense to treat these as serious crimes.
posted by trsdb at 10:20 AM on October 22, 2017 [1 favorite]
It's probably closer to "require that people who may or not may not be offenders of civil rights harms receive the same rights and/or treatment as people who may or may not be victims of civil rights harms.” That's how we treat other serious crimes, and I think it makes sense to treat these as serious crimes.
posted by trsdb at 10:20 AM on October 22, 2017 [1 favorite]
So much for "states rights"!
posted by Brocktoon at 10:58 AM on October 22, 2017 [2 favorites]
posted by Brocktoon at 10:58 AM on October 22, 2017 [2 favorites]
It's probably closer to "require that people who may or not may not be offenders of civil rights harms receive the same rights and/or treatment as people who may or may not be victims of civil rights harms.” That's how we treat other serious crimes, and I think it makes sense to treat these as serious crimes.
Except we're not talking about criminal complaints here, we're talking about how colleges adjudicate on-campus conduct violations, which is of course independent of the criminal justice system. We're talking about the right of a victim of sexual assault to not have to share a classroom, a hallway, or a bathroom with their assaulter. We're talking about the right of colleges to make those decisions themselves regarding how to keep victims safe on their property and in their facilities. No criminal trial is needed before those conduct violation decisions are made anymore than a criminal trial is needed before we decide to give you a zero for purchasing a term paper.
posted by hydropsyche at 11:07 AM on October 22, 2017 [17 favorites]
Except we're not talking about criminal complaints here, we're talking about how colleges adjudicate on-campus conduct violations, which is of course independent of the criminal justice system. We're talking about the right of a victim of sexual assault to not have to share a classroom, a hallway, or a bathroom with their assaulter. We're talking about the right of colleges to make those decisions themselves regarding how to keep victims safe on their property and in their facilities. No criminal trial is needed before those conduct violation decisions are made anymore than a criminal trial is needed before we decide to give you a zero for purchasing a term paper.
posted by hydropsyche at 11:07 AM on October 22, 2017 [17 favorites]
It's probably closer to "require that people who may or not may not be offenders of civil rights harms receive the same rights and/or treatment as people who may or may not be victims of civil rights harms.” That's how we treat other serious crimes, and I think it makes sense to treat these as serious crimes.
Given that when I was in college, the punishment for being found 'responsible' for sexual assault was identical and sometimes more lenient than the punishment for being found cheating on a test or homework assignment, I don't see how this makes sense.
posted by armadillo1224 at 11:13 AM on October 22, 2017 [3 favorites]
Given that when I was in college, the punishment for being found 'responsible' for sexual assault was identical and sometimes more lenient than the punishment for being found cheating on a test or homework assignment, I don't see how this makes sense.
posted by armadillo1224 at 11:13 AM on October 22, 2017 [3 favorites]
The thing is this. I was assaulted violently by a man I knew and cared about very much my senior year at college. It left me with broken bones, bloody face, and bruises. Yet, I did NOT want this man to be expelled or to have a criminal record. All I wanted was for him to stay away from me and not attempt to contact me
Thanks to the CAMPUS POLICE AND SECURITY POLICIES, I was able to have this happen. We graduated and our lives went on. I've never seen him again.
Had there been no option like this, I would have had to choose between doing nothing and possibly being beaten again, or calling the police and pressing charges.
There must continue to be this third option.
posted by jfwlucy at 12:01 PM on October 22, 2017 [10 favorites]
Thanks to the CAMPUS POLICE AND SECURITY POLICIES, I was able to have this happen. We graduated and our lives went on. I've never seen him again.
Had there been no option like this, I would have had to choose between doing nothing and possibly being beaten again, or calling the police and pressing charges.
There must continue to be this third option.
posted by jfwlucy at 12:01 PM on October 22, 2017 [10 favorites]
It's very important to note that campus civil rights violation adjudication is not about some parallel or alternative process to criminal investigation and prosecution or civil litigation, it's about the organic independent responsibility of the campus to manage its affairs. There isn't anyone (who knows the law or has any sense of the complexity of managing campuses) who is saying that a sexual abuse complainant is supposed to be sent over to the cops and her own civil lawyer and told that the respondent should be let entirely alone until and unless prosecuted or found liable in a civil case.
posted by MattD at 12:18 PM on October 22, 2017 [1 favorite]
posted by MattD at 12:18 PM on October 22, 2017 [1 favorite]
There are literally dozens of op-eds and other opinion pieces all over the country that have said exactly that (for example: from the New York Post--all the content warnings in the world on that one).
posted by hydropsyche at 12:31 PM on October 22, 2017 [3 favorites]
posted by hydropsyche at 12:31 PM on October 22, 2017 [3 favorites]
pdf of letter withdrawing prior guidance
pdf of recent Q&A guidance
posted by cheburashka at 12:35 PM on October 22, 2017 [1 favorite]
pdf of recent Q&A guidance
posted by cheburashka at 12:35 PM on October 22, 2017 [1 favorite]
If Trump appointees were just a little bit better at administrative procedure, they'd be a lot more effective in implementing their reign of horror. This is practically all the NY and MA AGs do these days, sue one agency or another for violating the APA. But that would require some expertise and a primary interest in policy success rather than throwing meat to the lions.
They're getting enough done, though, to wreck America's quality of life for the next twenty years...
posted by praemunire at 4:39 PM on October 22, 2017
They're getting enough done, though, to wreck America's quality of life for the next twenty years...
posted by praemunire at 4:39 PM on October 22, 2017
Those Turning on Trump Need to Start Turning on Trump's Cabinet. I'm talking to you, Ben Sasse and Bob Corker.
posted by homunculus at 12:04 PM on October 23, 2017 [3 favorites]
posted by homunculus at 12:04 PM on October 23, 2017 [3 favorites]
Who’s Afraid of Title IX? The attacks on Title IX undermine the struggle against campus sexual assault.
posted by homunculus at 1:18 PM on October 30, 2017
posted by homunculus at 1:18 PM on October 30, 2017
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posted by save alive nothing that breatheth at 8:18 AM on October 22, 2017 [2 favorites]