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Campus Kangaroo Courts
FIRE Takes Government to Court Over Sexual Misconduct Guidelines

A civil liberties group is challenging the Department of Education’s 2011 decision to unilaterally re-write campus disciplinary procedures, imposing what amounts to a guilty-until-proven innocent standard for sexual misconduct cases and paving the way for the increasingly illiberal campus sex bureaucracy that is expanding at schools across the country. From the group’s website:

A former University of Virginia School of Law student filed a federal lawsuit today challenging the Department of Education’s unlawful mandate that colleges abandon due process protections and try sexual misconduct cases using the lowest standard of evidence. The Foundation for Individual Rights in Education (FIRE) is sponsoring the lawsuit.

FIRE and other civil liberties advocates have continually objected to the Department of Education’s “preponderance of the evidence” mandate since its Office for Civil Rights (OCR) announced the requirement in a 2011 “Dear Colleague” letter (DCL). Advocates have warned that the letter diminishes accused students’ due process rights and violates the Administrative Procedure Act (APA).

It’s regrettable that it had to come to this. It would have been better if the Office for Civil Rights in Education (the zealous and highly ideological government agency responsible for the new rules) had recognized the limits of its authority and refrained from such draconian measures. It would have been better if higher-ups in the Obama administration had listened to concerns articulated by groups like FIRE, the Harvard Law School faculty, and the American Association of University Professors, and leaned on the OCR to dial back its campaign. And barring that, it would have been better if Congress, after seeing that an executive agency had gone rogue, had intervened with legislation to straighten out the situation.

But, sadly, the issue of campus sexual assault is so polarized and highly charged that otherwise-reasonable people seem unable to think clearly. It seems unlikely that any of the Democratic branches will scale back the OCR mandate anytime soon (including in a Hillary Clinton administration eager to prove its left-wing bona fides to the campus left). So here’s hoping that the judiciary intervenes and tells the government that it may not force campuses to impose a police state in the name of combating sexual misconduct.

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  • FriendlyGoat

    Why would we think it regrettable for a liberal administration to propose liberal ideals and for conservatives to attempt to push back against them with litigation? That’s how we can strike an appropriate balance on this issue or any issue. If America’s courts decide that the risks of improper allegations against young men outweigh the risks of too many young women being sexually used, then that will guide the tone of the policies going forward. (Ultimately, in a long term, elections have bearing on which judges decide these cases and all cases, of course.)

    • Boritz

      What a symmetrical way to describe the conflict between the side that has dismantled basic rights of the accused and those who wish to see these restored in the tradition of English law upon which our legal system is based. Some of us believed that due process was settled law and not subject to the legal contest of relative risks you propose. Why not ignore the 8th amendment provision against cruel and unusual punishment and have new court cases “guide the tone of the policies going forward.”

      • FriendlyGoat

        As I once told another person here, I am not actively involved in any real advocacy of “yes-means-yes” or any kind of college behavior codes based on that concept (outside of the comment sections. Oddly, TAI is sort of “obsessed” with this subject so it comes up a lot here).

        I believe that most young men who keep themselves fairly sober in college will not cross lines now identified with or defined from the left as “rape culture”. In the event that FIRE or other litigants do not chase away new standards you guys worry about, we can just tell the fellows—–never mind the girls—-to drink less and their normal empathies and inhibitions will keep them out of the land of “due process”.

        As for YMY, my personal hope is that it becomes such a social “thing” that the fifth graders discuss it in their grapevine. But something like that either catches on and “goes mainstream” in such a way—-or it doesn’t.
        Meanwhile, now would be a great time for standards to be litigated at the colleges. It’s not regrettable. It’s how to know what makes sense, what is not enough and what is too much.

        • Jim__L

          FG, you’re incredibly naive — not to mention ignorant of current events — if you think that YMY won’t cause serious problems.

          • FriendlyGoat

            Well, I didn’t “regret” litigation over this subject with respect to college policies as TAI did. I welcomed the litigation. That’s how we will know what is flyable and what is not.
            As for YMY, I dream of the day when the middle schoolers have learned and decided that it is a proper way for all “romantic” and sexualized activity to proceed—-so nothing surprises them at college.

          • Jim__L

            YMY is absurd, and so far from any natural way for human contact to occur that it’s untenable on the face of it.

          • FriendlyGoat

            He does not know the words you would use to tell about it, but my real billy goat is in complete agreement with you on this subject matter. He really gets “natural” and does quite a contortion most days peeing on his face for cologne effect (during about six months of the year). As far as I know, he is not interested in standards for behavior. He would consider the whole idea “absurd”.

          • Jim__L

            FG, if you can’t tell the difference between a time where words get in the way, and pissing in your own face, there’s really nothing anyone can do for you.

      • f1b0nacc1

        Add the word ‘black’ between ‘young’ and ‘men’, and I suspect that many of the twits on the left would suddenly discover the virtue of due process. Strange that we bigots on the right have to remind them.

        • FriendlyGoat

          But, your erstwhile twit points out, college policies on this particular subject are much more a white thing. Not exclusively white—–just much more white.

          • Anthony

            FG, reading about Jo Cox (British Female MP murdered) and enjoying your TAI commentary of last few days brings to mind importance of “mood and sensibility” pervading our politics. For me, you symbolize (via commentary) an important aspect that makes Democracy both precious and precarious. It fundamentally (among other things) relies on a degree of respect for the opinions of others as well as avoiding (as best we can) stirring up undue hatred against identified opponents. Good night, my friend.

          • FriendlyGoat

            Thanks, Anthony. Those are very kind words. I really do ramble in these places because writing things down helps me define what I think or even might think. I also do know that I am often truly “rambling”.
            Don’t take me too serious. These comment sections just allow us to talk about or “formulate” things that just don’t come up in day-to-day life or which would be “weird” if they did. So some of us just keep coming back to spin our fantasies for lack of “appropriate” other places to do such a thing.

          • Anthony

            You’re welcome. And I take you as you are (virtually); serious or not your perspective (rambling) adds to World Wide Web (I read your comments @ Berger’s and other Essayist in last few days and thought I would let you know).

          • f1b0nacc1

            The policies are white? Please clarify…

            Since you jumped in though, how can you rationalize denying due process to one group, while defending it for another? Or are you seriously going to suggest that we start providing it on a differential basis?

          • FriendlyGoat

            The policies are not white. They are directed toward a mostly white problem involving mostly white participants—-aka fraternity brothers.
            Mostly, not exclusively. I only raised this race issue BECAUSE you did. Not going further with it.

          • f1b0nacc1

            You really need to work on your reading comprehension. I pointed out that if the policies in question (i.e. guilty until proven innocent, which is the standard being used on campuses) were directed at blacks instead of men, you and your ilk would be (correctly) outraged, but since they are directed at men, you are willing to rationalize them….

          • FriendlyGoat

            Whatever policies are adopted at a college WILL BE applied to both black male students and white male students. This is just not a race issue, but I “got it” as the distraction you intended when you tried to introduce that angle, okay?

          • f1b0nacc1

            Actually (see my other response), the race issue was meant to point out that these policies have been used in the past by bigots who found things like due process inconvenient or a barrier to their own preferred course of action. Liberals fought against that sort of thing then, and should be proud of their role in doing so… That is hardly a ‘distraction’, it is a reminder that principles matter, however inconvenient they might be.

            As far as your assertion that their policies will be applied equally, just what guarantee do we have of that, given that universities are already openly advocating differential treatment of individuals based upon race, ethnicity, gender, etc.?

          • Anthony

            PTI, but this is your latest and here’s something of interest (perhaps) – not directly related: http://www.theatlantic.com/magazine/archive/2016/07/the-war-on-stupid-people/485618/

          • Jim__L

            You’ve just demonstrated beyond the shadow of a doubt that you think that this policy will have Disparate Impact.

            Do you think that Disparate Impact guidelines are just, or not?

          • FriendlyGoat

            I have not demonstrated anything. The policies of colleges and the lawsuits against those policies (if any) will do the demonstrating.

          • Jim__L

            Please re-read my post. You have certainly demonstrated your own opinion.

          • FriendlyGoat

            You can write things, but you can’t cause me to agree with them.

          • Jim__L


            … Wow. I’m simply pointing out what you in fact said.

            Please go back and read what you said, then read what I said. At this point you’re simply ignoring basic English to be disagreeable.

          • FriendlyGoat

            I’m sorry, but I don’t make your points for you. You either have to explain what you are talking about—–or—–we’re movin’ on.

          • Jim__L

            “The policies are not white. They are directed toward a mostly white
            problem involving mostly white participants—-aka fraternity brothers.”

            That’s you, saying these policies have Disparate Impact.
            I’m asking, are you OK with policies having Disparate Impact?

          • FriendlyGoat

            You know and I know that f1B was attempting to introduce some kind of alleged racism into this subject where no such entanglement exists. It’s all silly including your pursuit of it. The subject is whether young black and white men should be and can be forced by policy to be more cautious and thoughtful in the sexual pursuit of young black and white women in colleges—–MOSTLY on the subject of when everyone involved has been drinking. Race is not the point. Drinking and male self-control after drinking is the point—-even if girls are drunk.

          • Jim__L

            Well, Asian, anyway.

    • Frank Natoli

      Why would we think it regrettable for a liberal administration to propose liberal ideals
      We think it regrettable because liberals choose arbitrary sides, and are not nearly as principled as they swear they see in the mirror. Many, MANY inner city lives would be saved if rules of evidence and trial and conviction were changed to “get” those whom everyone “knew” were guilty. That is something Liberals will not do. Hammer white boys in colleges, that’s different!

      • FriendlyGoat

        Why can white boys in colleges not adapt to new standards—–(if we even get new standards)? As I have pointed out, any guy can pretty-much stay out of trouble by staying reasonably sober around girls. It’s not hard. The standards are not meant to be a “guy-trap”. They are meant to be drummed into all parties’ heads with the effect of preventing assaults before they occur.

        • Frank Natoli

          preventing assaults
          If person A walks up to person B, and punches person B in the nose, is there any legal confusion over whether an “assault” has occurred? No, there is not. The reason there is not is because “assault” is the act not the intent or permission, explicit or implied, to commit the act.
          But if person A engages in sexual relations with person B, and there is zero evidence of forcible rape [torn clothing, bruising, vaginal lacerations, etc.], how does the law even characterize the act as an “assault”? Further, act itself aside, how does the law determine intent, then condition intent on how to characterize the act?
          Libel against public figures has “intent” problems. A plaintiff has to prove what the defendant was “thinking”, which has been recognized, for all intents and purposes, to be impossible. Nobody has proposed softening those laws in order to obtain better success for the plaintiff.
          Yet that is exactly what is happening in the present matter. Intent, private thought, is to be “proven” and actionable, entirely because the largest victims’ group in America, women, think it should be. All previous understanding of rules of evidence, requirements for guilt beyond reasonable doubt, are dismissed, though the penalties remain just as harsh. All because the largest victims’ group says so.
          Goodbye, rule of law. Hello, rule of the mob.

          • FriendlyGoat

            One would think that you are arguing against a fear that men will become the “largest victims’ group in America ” if that mob of women gets its way.

            Presumably there are some fathers and brothers who are not too perturbed by the possibility of revised standards for the protective benefit of their daughters and sisters. Do you suppose there are a like number of mothers and sisters who fear that legal fairness for their sons and brothers is “going out the window”? (I don’t, but hey, some litigation like that from FIRE might bring all sides out of the woodwork and into the open, no?)

          • Frank Natoli

            Presumably there are some fathers and brothers who are not too perturbed by the possibility of revised standards for the protective benefit of their daughters and sisters
            That would be true for Liberal fathers and brothers, who believed that Constitutional rights do not apply to everyone equally, only to the “right” people and not the “wrong” people. Conservative fathers and brothers do not think that way.
            Inarguably, we would all be “safer” in a thorough police state, e.g., Hitler’s Germany or Stalin’s Russia. But that “safety” would be obtained at the cost of freedom and liberty, as intended and implemented in the U.S. Constitution.
            The logical fault in your suggestions is that you believe “revised standards” [of evidence, of trial, of conviction] are appropriate in the matter of this TAI article but not in the matter of inner city violent crime.
            Sexual relations that are ex post facto claimed to be rape are more worthy of Constitution infringements than murder or forcible rape or robbery?

      • johngbarker

        If I were a lawyer, I would sure want a piece of the action. Just think of the billions sitting in endowment funds.

        • FriendlyGoat

          There are probably just as many lawyers trying to keep those endowment funds untouchable. In fact, one could argue that college “policies” most likely are developed for precisely that purpose. They may now think they have more liability from suits by girls than they would have from suits by boys under more-defined policies.

          • f1b0nacc1

            Those lawyers had best hope that they guess right, for if the courts open the door to suits based upon denial of due process as a factor of gender (or race), we will have a great many university administrations suddenly out of a job.

            Not that this is a bad thing, mind you….

          • FriendlyGoat

            Only crazy logic wishes for the preservation of the colleges and their destruction at the same time.

          • f1b0nacc1

            Who said that I was defending the colleges? I merely pointed out that ‘the lawyers had best hope that they guess right….’, I personally would be fine with these institutions sued into oblivion by the young men that they have abused. As Voltaire said, it would be useful to encourage the others….

          • FriendlyGoat

            Okay, have it your way. Only crazy logic wishes for the destruction of the colleges by horny young men and their lawyers. Whatever.
            It’s nuts any way you put it.

          • f1b0nacc1

            Institutions as corrupt as the modern university system are best destroyed, and if the very victims of these systems can both enable the destruction of them while at the same time demonstrate the worthlessness of a system that overtly denies due process, I see that as a twofer to be valued.

            You still are running away from your own argument that denying due process seems to be a good idea because you don’t like the ones you have decided have committed a crime. Strikes me as a simple act of bigotry on your part….this is, after all, the precise argument used by bigots who imprisoned (or worse) young black men for ‘looking the wrong way’ at a white woman.

            Principles are important, and sometimes they are painful things to adhere to, but we must do so if they are to have any meaning.

  • GS

    The whole OCR should be disbanded, and all its works tossed out.

  • Tom

    The Feminist Left: demanding all the rights of men and none of the responsibilities, as they have for decades.
    Susan B. Anthony and Elizabeth Cady Stanton would be most displeased.

    • Jim__L

      Not only the rights… demanding to participate in the worst vices of men, and have any critics jailed.

  • Frank Natoli

    Once upon a time, probably within living memory of most commenters here, colleges acted in locus parentis which for all practical purposes meant trying to prevent men and women from engaging in what men and women have enjoyed for a million years. Then we had the “sexual revolution” where all restrictions and limitations were trashed. And now we have something far more draconian than the original in locus parentis, expulsion, fines, imprisonment, all because what? Because it turned out that the sexual revolution and trashing all restrictions and limitations had some unintended consequences? I am shocked, SHOCKED.

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