The Campus Accountability and Safety Act Would Mildly Improve Campus Due Process

 

shutterstock_238978654The Campus Accountability and Safety Act (CASA) is the subject of a spectacularly poorly researched article by George Will last week, and has been raised by a number of Ricochetti, so I thought it was worth working out what it does. The Act is not going to pass this year, but it’s worth understanding the legislation in contention (even if it doesn’t pass) and this will almost certainly be reintroduced next year and it might pass then. There are some criticisms of it that are simply incorrect. Thus, for instance, the use of the term “victim” in a crime survey context is not a violation of anyone’s civil rights and it’s not new (as anyone could tell if they looked at the law being amended). There are also aspects of Will’s argument that I think are clearly wrong, but on which I would appreciate correction. Happily, Ricochet seems like the place in which to educate myself.

CASA Contents: Higher Education Act

The CASA substantively amends three acts, as well as clarifying its lack of impact on a fourth and calling for a study to be written. Firstly, it amends the Higher Education Act, to require that universities make their protocols more transparent, formally allocate responsibilities with local law enforcement, and review their agreement every two years. If the police and university cannot agree, there is a substantial fine unless the institution submitted a form explaining the problem, showing that it had attempted in good faith to come to an agreement, and including the university’s final proposed agreement. In the 2014 version of the bill, the Secretary could then decide whether or not to impose crippling fines. In the 2015 version of the bill, the Secretary does not have that choice.

The Higher Education Act amendments also say that when someone makes a complaint, they should have a confidential adviser assigned to them who would have to inform them that the college disciplinary system was not a substitute for the criminal justice process. It requires that if someone reports a rape, and that report is the sole basis for believing that they engaged in underage drinking and the like, they should not be punished for the drinking. It requires that the protocols not have waivers or exemptions for athletes or for particular majors. Lastly, it requires that individuals get at least a minimum standard of due process, including notice of hearings, notification of their rights, notice of the details of the complaints, and notice of the outcome.

CASA Contents: Clery Act and VAWA

Secondly, it expands the Clery Act, which requires schools to publish crime statistics, to include a lot more detail about sex offenses and, more importantly, to force schools to put their crime statistics on the website. Never underestimate how lazy people are, and how much impact moving these things to more easily googleable places can have. The Clery Act amendments also increase the fines for Clery Act violations, require cooperation with law enforcement in the investigation of crimes involving students or university employees, and define more tightly who “responsible persons” are, who have to report crimes that they become aware of. The Violence Against Women Act amendments somewhat increases the still trivial budget for studies.

Analysis

I should start by conceding that I’m very comfortable with partial solutions; if a bill makes life better for Americans without wholly solving a problem, I’m all for it. I recognize that this isn’t a universal view. As such, I’m happy with laws that demand that universities have better, more conservative, standards imposed on them, when the alternative is universities having worse, more liberal, standards imposed on them. Most Republican candidates would federalize a lot of higher ed spending, reducing the number of strings attached. Personally, I prefer to have some federal spending (for instance, on research relevant to the military) and some strings (for instance, that universities cooperate with military recruitment rather than discriminating against them, as they did in the Bush era). I … uh, may be getting a little off point here. Anyway, CASA’s due process requirements seem to me like a step in the right direction that would probably be undone if a Republican won the White House and we made a bigger step in the right direction.

The chief substantive exception appears to be over providing alleged rape victims with a confidential adviser. This seems like an obviously good idea to me. Students claiming rape are often in a somewhat emotional place, and are prone to making poor life choices that affect them, the person they’re accusing, and others; it’s best to have someone present they can talk to, who can say “I’m not sure if that’s a good idea,” and so on, who is not their immediate social support group, a group likely to consist of other dumb and emotional students. I’m not sure that it’s a good idea to have it mandated by law, but it doesn’t seem particularly harmful. It seems like a step in formalizing a process that is far too often ad hoc and deeply unfair.

The best thing about the law is the requirement that universities post their stats on their websites. That means that universities will have a stronger incentive than ever to extend due process to alleged rapists and to discourage allegations; each allegation and each conviction will not make the school less appealing to prospective students, and should check some of the abuses of campus activists. It’s also helpful to have more recent, clear, and easily accessible data available because that data gives the lie to the irresponsible claims made by feminists. If you remember Duke’s Group of 88, you will know the scale of the forces pressuring administrations to act unjustly; we need every tool available to pressure them the other way.

Criticism:

George Will’s article’s most important point appeared to be based entirely on a single National Review article that didn’t focus on the CASA. The article, by Stuart Taylor and KC Johnson, is a generally strong one on Obama’s executive order abuse in a campus rape context. Regrettably, it frames its wholly accurate assault on these abuses as a complaint about Republicans not doing enough to stop them, without it being wholly clear what they believe Republicans could do. They note that there have been relatively few committee hearings on the matter. They do not note, however, that Sen. Ted Cruz is the chairman of the relevant Judiciary subcommittee, while Sen. Rand Paul is one of the committeemen who did not turn up when Sen. Lamar Alexander held hearings for the Health, Education, Labor, and Pensions committee. If there was much in the way of ground to be won by speechifying about civil rights and the Constitution, they can generally be thought of as people who would choose to be present.

As an addendum to this, they claim that the CASA makes things worse. The first charge is the one I noted at the start: that the use of the term “victims” is wrongful:

With key Republicans along for the ride, McCaskill and Gillibrand produced a bill designed to advance the administration’s agenda. Its language presumes the guilt of all students accused of sexual assault by repeatedly calling accusers who have not yet substantiated their claims “victims,” without the critical qualifier “alleged.”

Taylor is not a lawyer and cannot be expected to know better. Stuart is a lawyer, and should be well aware that “victim” is a common term in statute and does not, in the Anglo-American tradition, require an “alleged” to prefix it. Thus, for instance, the “Crime Victims’ Rights” under 18 U.S. Code § 3771 apply before the conclusion of a trial; similarly, Reagan’s Victim and Witness Protection Act uses victim appropriately, and “victim” is in the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. These are the basic texts of criminal law.

More importantly, the Clery Act amendments are amendments. When amending legislation, one of the clearest rules is that if the original act uses a particular term for a particular concept, that term should be retained. Any other term would be a gift to creative attorneys to earn their fees. The Clery Act uses the term “victim,” so the amendment should use the term victim. More importantly still, Johnson and Taylor make it sound as if this law is prejudicial to a trial for rape, but the Clery Act isn’t that kind of a law; it’s about campus reports to the Department of Education. None of this requires more than a brief scan of the statute and a basic knowledge of the law.

The NR article quotes a Rubio spokesman from 2014 telling the Washington Examiner’s Ashe Schow that the bill doesn’t address campus due process, as if this is a damning thing (there are many good bills that don’t address campus due process; the Personal Responsibility And Work Opportunity Reconciliation Act of 1996 is a personal favorite). While, as above, it seems obvious to me that bills that improve some areas of campus treatment of rapists without changing others yield a Pareto improvement, and that Pareto improvements are good, it turned out that this was a problem in 2014. Consequentially, it was fixed in the 2015 bill, which now provides for improvements in campus due process. The Taylor and Johnson article pretends that the quote is about the 2015 bill.

This causes Will to claim “by co-sponsoring S-590 [CASA], Rubio is helping the administration sacrifice a core constitutional value, due process, in order to advance progressives’ cultural aggression.” I don’t believe that there is a single clause of CASA that would reduce due process for a single student. If you think that Will’s claim that Rubio’s purpose in doing this is to advance progressive’s cultural aggression is, well, kind of aggressive, you should read the article. In it, Will prepares us for this purple language by accusing Rubio of “collaborating with the administration” and claiming that CASA is “indifferent to Constitutional values” and either deliberately or ignorantly weaving together discussion of Obama’s abuses and CASA.

Reading this, I felt somewhat the way that I did when reading Will’s defenses of McCain’s amnesty, and I recognize that I may thus have been uncharitable in seeing his piece as a collection of ignorant libels. It’s also likely that my aversion to a particular political figure making his arguments chiefly in the form of attempting to associate claims he disagrees with with liberals and using overheated rhetoric to condemn straw men has left me more sensitive to the Nazi allusions and such. So, please, Ricochet, defend George Will to me, or educate me about the CASA. I’m not fussy and am not able to tell what it is that I do not know; tell me I’m wrong about something (although if that something is entirely unrelated to the post I can’t promise to enter into much of a debate about it).

Edit: This article was edited to reflect KC Johnson’s just complaint that I wrongly attributed his article with Stuart Taylor to “Stuart and Taylor”. The author profoundly regrets the error. 

There are 49 comments.

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  1. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    I have nothing to add except to say that I have read this bill and agree with James’ characterization of it.

    It would appear George Will did not read the bill before writing his piece.

    • #1
  2. James Of England Moderator
    James Of England
    @JamesOfEngland

    Frank Soto:I have nothing to add except to say that I have read this bill and agree with James’ characterization of it.

    It would appear George Will did not read the bill before writing his piece.

    There are people on here who know more about this than me. Does Will have an intern? Ought there be someone else who does this sort of stuff for him?

    • #2
  3. PJS Coolidge
    PJS
    @PJS

    James Of England:

    Frank Soto:I have nothing to add except to say that I have read this bill and agree with James’ characterization of it.

    It would appear George Will did not read the bill before writing his piece.

    There are people on here who know more about this than me. Does Will have an intern? Ought there be someone else who does this sort of stuff for him?

    Someone, like, perhaps, you?

    • #3
  4. Hoyacon Member
    Hoyacon
    @Hoyacon

    Thank you, James.  I was also surprised by Will’s mischaracterizations.  All one really had to do was look at the bill.  I also wondered why, if Will is, according to some, the prototypical establishment conservative columnist, he was attacking Rubio, allegedly the prototypical establishment conservative candidate.

    • #4
  5. James Of England Moderator
    James Of England
    @JamesOfEngland

    PJS:

    James Of England:

    Frank Soto:I have nothing to add except to say that I have read this bill and agree with James’ characterization of it.

    It would appear George Will did not read the bill before writing his piece.

    There are people on here who know more about this than me. Does Will have an intern? Ought there be someone else who does this sort of stuff for him?

    Someone, like, perhaps, you?

    *Laughs* That wasn’t what I was thinking. I suspect that job applications work better when they’re a little more polite.

    Hoyacon:Thank you, James. I was also surprised by Will’s mischaracterizations. All one really had to do was look at the bill. I also wondered why, if Will is, according to some, the prototypical establishment conservative columnist, he was attacking Rubio, allegedly the prototypical establishment conservative candidate.

    As I understand it, he’s a Christie guy. Hence, although he liked McCain’s long immigration bill, he dislikes Rubio’s superior immigration bill. He’s written nicely about Kasich, too. My guess, though, is that this isn’t 100% partisan intra-party stuff. Rather, I imagine that he read the Stuart and Taylor piece, half understood it, and thought “That’s my piece for this week”.

    Half his column is paraphrasing of their article, including their suggestion that Taylor voting for Obama makes him a reliable source, and the other half he could have written in his sleep, having been included in past columns of his. I don’t think he’s right about that stuff either.

    For example, Rubio’s support for doing more in Libya came after Obama laid down a redline; I disagree with Obama deciding that Qaddafi had to go, but once he’d publicly made that call, America’s credibility was on the line. After that, Libya pulled itself together enough to have moderately successful elections, and then partly fell apart again. Now it’s coming close to returning to elections, but it’s in these closely balanced affairs that a little American help can make the most difference. If we’d made a genuine commitment to Libya (not an Iraq scale commitment, but a Bush/ Obama Somalia or Egypt scale commitment), Libya would have been united and effective enough to have defeated the ISIS territory within their borders and we’d have seen a lot fewer refugees. Will dismisses this stuff because after supporting the Iraq War he changed his mind, which now means that all Arab conflicts are Iraq.

    Still, while his thinking there is lazy and, I believe, mistaken, it’s not filled with “the capital of France is Lyon” kind of mistakes, it doesn’t rely on the same ad hominems by association, and it doesn’t engage in charges of manchurian candidacy or Nazi allusions. The first half of the column is essentially a Will stump speech; you may like or dislike the pablum, but there’s nothing shocking in it.

    • #5
  6. Mark Thatcher
    Mark
    @GumbyMark

    Do you prefer CASA or the Safe Campus Act?

    • #6
  7. James Of England Moderator
    James Of England
    @JamesOfEngland

    Mark:Do you prefer CASA or the Safe Campus Act?

    They mostly do different things. I guess of the two, I’d prefer the House bill, and I suspect that there would be elements of it in any bill that got to the President’s desk. Similarly, for the SCA to progress, I suspect it would have to take on elements of the CASA. I like the publication of the statistics from the CASA and I’m not super keen to have the Feds be too keen to detail University procedures, but the SCA isn’t all that detailed either, and it’d be clearer in its impact.

    • #7
  8. Hoyacon Member
    Hoyacon
    @Hoyacon

    Some combination of the two is probably best.  The SCA is stronger on taking affirmative steps to protect due process rights.  Among other things:

    –The institution shall provide all parties to the proceeding with adequate written notice of the allegation not later than 2 weeks prior to the start of any formal hearing or similar adjudicatory proceeding, and shall include in such notice a description of all rights and responsibilities under the proceeding, a statement of all relevant details of the allegation, and a specific statement of the sanctions which may be imposed.

    –The institution shall provide each person against whom the allegation is made with a meaningful opportunity to admit or contest the allegation.

    –The institution shall ensure that all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Such evidence may include but is not limited to complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence.

    • #8
  9. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    James, I don’t want to sound like I am discounting your hard work on this piece–it’s very well researched and thought out. Nor have I read the CASA bill as has been suggested. But I do have one question, and I think this gets to the whole heart of the issue here: if a woman has been raped, or feels like she was sexually assaulted in any way, then why not go straight to the police, give as accurate an account as possible, and allow the investigatory process to play out? Why is there is this need to construct a separate system for college campus sexual encounters, which seems to be what CASA does? I know that in your piece you say that CASA actually explains that there is not a substitution for the criminal justice system, but then why do we even need this type of bill if that is the case? If a rape or sexual assault occurred, trust me the violator will receive expulsion from the school–something that I think a lot of recent cases resulted in where the school becomes investigator, judge, and jury.

    • #9
  10. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    One other question: How does CASA solve the problem of schools’ investigations and hearings coming to completely different conclusions than police investigations? I know you said that it does not provide a substitute, mentioned in my above comment, but does that mean, if a criminal investigation finds no wrong doing, that the schools’ proceedings must stop?

    • #10
  11. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Hoyacon:Some combination of the two is probably best. The SCA is stronger on taking affirmative steps to protect due process rights. Among other things:

    –The institution shall provide all parties to the proceeding with adequate written notice of the allegation not later than 2 weeks prior to the start of any formal hearing or similar adjudicatory proceeding, and shall include in such notice a description of all rights and responsibilities under the proceeding, a statement of all relevant details of the allegation, and a specific statement of the sanctions which may be imposed. Are the rights in this proceeding different than what would be the rights in a criminal proceeding?

    –The institution shall provide each person against whom the allegation is made with a meaningful opportunity to admit or contest the allegation. Is this with the school or the police?

    –The institution shall ensure that all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Such evidence may include but is not limited to complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence. Is the evidence examined and weighed by trained litigators or is the defendant left to figure this out on his/her own? Ditto plaintiff?

    • #11
  12. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Robert McReynolds:One other question: How does CASA solve the problem of schools’ investigations and hearings coming to completely different conclusions than police investigations?

    It doesn’t.  As James said though, it doesn’t claim to.  On the whole I don’t think CASA is a particularly good bill.  It does a few good things on very minor issues.

    Will’s attack piece was clearly off base though.

    • #12
  13. James Of England Moderator
    James Of England
    @JamesOfEngland

    Robert McReynolds:James, I don’t want to sound like I am discounting your hard work on this piece–it’s very well researched and thought out. Nor have I read the CASA bill as has been suggested.

    You’re not. Your question isn’t really about CASA, but about the system that CASA is amending. But it’s an important question.

    But I do have one question, and I think this gets to the whole heart of the issue here: if a woman has been raped, or feels like she was sexually assaulted in any way, then why not go straight to the police, give as accurate an account as possible, and allow the investigatory process to play out?

    She should absolutely go to the police. Indeed, you will remember that part of what CASA does is find ways to encourage that, such as having a trained adviser urging them to do it, requiring cooperation with the police, and requiring universities to sit down with the police and seriously consider what actions are appropriate for each.

    In the American legal system, though, criminal law has never been the only way to respond to the offenses. You have civil suits, like the one against O.J. Simpson. This bill, obviously, isn’t really about those, either.

    You also have what used to be non-legal responses. If you’re running a store and one employee tells you that another has committed a crime against them, but that they don’t have evidence that would be admissible in a court, you wouldn’t necessarily want to apply a “beyond a reasonable doubt” standard. In general, relationships between employees and employers, between social contacts, and between schools and students are much less formal than court trials. This isn’t a substitute for the criminal justice system (as the CASA requires people to be informed), but it is an essential supplement to it.

    Take Sandusky as a classic example. If you think that someone is, for instance, about 75% likely to be sexually abusing athletes, you aren’t in a position to prosecute them. You are, however, in a position to stop them from coaching football. Indeed, you should probably do so.

    Why is there is this need to construct a separate system for college campus sexual encounters, which seems to be what CASA does?

    CASA doesn’t construct a separate system. We’ve always had school discipline being separate from and complimentary to the court system. What CASA does is encourage people to use the court system, and makes the system slightly less unfair for people in the school disciplinary system (whether or not they are also in the court system).

    I know that in your piece you say that CASA actually explains that there is not a substitution for the criminal justice system, but then why do we even need this type of bill if that is the case? If a rape or sexual assault occurred, trust me the violator will receive expulsion from the school–something that I think a lot of recent cases resulted in where the school becomes investigator, judge, and jury.

    It’s often difficult to tell if a rape or sexual assault has occurred. What we want is a system that tries to establish that as fairly as possible.

    Now, it’s possible that we should say that if you’re only 75% likely to have committed a crime, and hence you should be found not guilty by a criminal court, you should also not be expelled. A more moderate position would involve the survival of a civil suit being enough. Both standards would have see more Sanduskys successfully raping kids; the current system is aimed mostly at protecting victims rather than punishing miscreants, admittedly largely through deterrence.

    Anyway, that’s a discussion that can be had. Like I said, the CASA is a relatively modest reform. Opposing it because you don’t like the system it amends is like opposing welfare reform because you still have welfare afterwards or opposing building a border wall because we’re not electrifying it and putting up machine gun posts.

    • #13
  14. James Of England Moderator
    James Of England
    @JamesOfEngland

    Robert McReynolds:One other question: How does CASA solve the problem of schools’ investigations and hearings coming to completely different conclusions than police investigations? I know you said that it does not provide a substitute, mentioned in my above comment, but does that mean, if a criminal investigation finds no wrong doing, that the schools’ proceedings must stop?

    As with the OJ trial, different burdens of proof arriving at different conclusions is how things are meant to work. The problem with administrative responses (and, again, it’s not just at school; if your HR department thinks that you’re a criminal, you’re going to be looking for work in the private sector even if the evidence doesn’t amount to a criminal conviction) is not that they’re not beyond a reasonable doubt organizations.

    The problem is that we have awful people in our universities; most famously the Group of 88. Furthermore, we have awful people in the Obama administration who are making things worse. There ought to be a lower standard of evidence for administrative hearings, but it is still vital that those hearings are fair and that those appearing before them receive due process. Obviously, the CASA doesn’t get rid of the awful people (nor does the CSA, nor any other reforms that I’m familiar with). Neither the CSA nor the CASA stop the trials from having less due process than you or I would like, and we would still see some awful hearings. What these reforms do is make the process less abusive. It’s an improvement to the system. Until our universities stop being run by feminists and leftists, we probably can’t make the system one that we would like, but we can limit the abuses. I am highly confident that the next Republican President will repeal the awful Obama DoEd executive orders, and may even replace them with something more CASA/ CSA like (much of this stuff can be done via regulation), but that’s the sort of reform that’s on the table.

    Again, it may be that we should have a root and branch reform, but so far as I’m aware no one has suggested this.

    • #14
  15. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    I think all of your points are sound. I am not against this per se. What I am against is young ladies who get hammered drunk, sleep with some tool bag, and then out of regret deciding to ruin that tool bag’s life by accusing him of rape or sexual assault. Rape is something far different than cheating on an exam. If the criminal justice system cannot end in a guilty verdict, then the guy should not be threatened in other ways, like being unable to finish school and going on to find a job later.

    I do not think these attempts by colleges to find another layer of justice when talking specifically about rape and sexual assault is needed. I find them to be nothing more than kangaroo trials designed to assuage the rabid feminism that is rampant on colleges these days. Furthermore, there are ample examples of such cases being brought up and going nowhere criminally while the accused has to fight the school tooth and nail to get his reputation back. Like you said, refusing reforms that seek to improve a very broken system is probably not a good idea. But what the reforms do is make legitimate the very system that is broken. Rape is not something that should be handled in any way by a college. It is a serious crime and a serious accusation to level against someone.

    • #15
  16. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    James Of England:

    As with the OJ trial, different burdens of proof arriving at different conclusions is how things are meant to work. The problem with administrative responses (and, again, it’s not just at school; if your HR department thinks that you’re a criminal, you’re going to be looking for work in the private sector even if the evidence doesn’t amount to a criminal conviction) is not that they’re not beyond a reasonable doubt organizations.

    Not necessarily. If I am brought to trial and found not guilty yet still fired from my job, I can retaliate for wrongful firing. The OJ trial is a special case, and unfortunately one that gives this type of discussion a lot of weight for your argument. The bottom line is this though, OJ’s civil case was still a case that had to endure, although to a lesser standard, the same scrutiny in a court of law. Colleges, nor employers for that matter, are courts of law and thus not subject to the same evidentiary standards of courts. If a young lady doesn’t get the verdict she wants criminally, then it is to the civil courts where she should take the case, not the school, if you are make your OJ comparison apples to apples.

    • #16
  17. James Of England Moderator
    James Of England
    @JamesOfEngland

    Robert McReynolds:

    Hoyacon:Some combination of the two is probably best. The SCA is stronger on taking affirmative steps to protect due process rights. Among other things:

    –The institution shall provide all parties to the proceeding with adequate written notice of the allegation not later than 2 weeks prior to the start of any formal hearing or similar adjudicatory proceeding, and shall include in such notice a description of all rights and responsibilities under the proceeding, a statement of all relevant details of the allegation, and a specific statement of the sanctions which may be imposed. Are the rights in this proceeding different than what would be the rights in a criminal proceeding?

    Yes. Of course they are, as with anyone dealing with the Human Resources department.

    –The institution shall provide each person against whom the allegation is made with a meaningful opportunity to admit or contest the allegation. Is this with the school or the police?

    This is with the school.

    –The institution shall ensure that all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Such evidence may include but is not limited to complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence. Is the evidence examined and weighed by trained litigators or is the defendant left to figure this out on his/her own? Ditto plaintiff?

    It’s generally a really good idea to get a lawyer if you’re facing high stakes engagement with your HR department in a regulated environment (in a less formal environment, like a mom ‘n pop store, your rights are generally so trivial that it may not be worth it).

    The CASA requires a little more training in those adjudicating the case, and has an adviser for the complainant (as I noted in the piece, this is often a helpful thing for the person accused), but neither of them require that HR departments are manned by judges. America doesn’t have all that many judges.

    The CSA provides for judicial review of the actions of private universities. At the moment, and I believe this varies by state law, you can get into a court if you’re at a public university, but not a private university. The CSA’s reform there seems like a positive step, although obviously what I’m praising here (and what I think you want, too) is an increase in regulation. With private universities, you can sue for defamation if they behave particularly terribly, but their judgment would have to be truly awful for that to be particularly successful.

    • #17
  18. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    James, 95% of our universities and colleges are NOT going to cease being ran by the feminazis, so legitimizing their system of kangaroo courts regarding sex on campus is not going to do one bit of good. They are just going to explore other ways to discover the loop holes that can be exploited.

    However, all of that being said, there is probably no root and branch reform likely either–ever. Who would want to be the first politician, likely male, to make the case that we need to neuter the ability of campuses investigating rape accusations? My solution? Send you kids to the few Conservative schools out there: Hillsdale, Grove City, etc. where the atmosphere is about scholastic achievement and academics and not about partying and putting yourself in situations, boy or girl, where you will wake up the next day regretting what happened.

    • #18
  19. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Last one and then I have to go have dinner.

    Where do the young men from the Duke Lacross team go to get their reputations back? What campus department is that? Ditto the fraternity at the University of Virginia accused of unspeakable horrors in the Rolling Stone article? How will CASA prevent these instances from happening?

    • #19
  20. James Of England Moderator
    James Of England
    @JamesOfEngland

    Robert McReynolds:

    James Of England:

    As with the OJ trial, different burdens of proof arriving at different conclusions is how things are meant to work. The problem with administrative responses (and, again, it’s not just at school; if your HR department thinks that you’re a criminal, you’re going to be looking for work in the private sector even if the evidence doesn’t amount to a criminal conviction) is not that they’re not beyond a reasonable doubt organizations.

    Not necessarily. If I am brought to trial and found not guilty yet still fired from my job, I can retaliate for wrongful firing.

    Right, but you won’t automatically win. Because you’re a government employee, you can probably only be fired for cause, but the burden of proof is lower for the Merit Systems Protection Board than for the prosecutor. You probably wouldn’t have a discrimination aspect, so you’d really want to be protected by a clause in your union contract. Or, wait, are you in the military? That would be another system again, but it still would not mean that a reasonable doubt standard would apply.

    The OJ trial is a special case, and unfortunately one that gives this type of discussion a lot of weight for your argument. The bottom line is this though, OJ’s civil case was still a case that had to endure, although to a lesser standard, the same scrutiny in a court of law.

    It’s true that there’s still a court in a civil hearing, and but it’s worth noting that the evidence rules as well as the burden of proof change.

    Colleges, nor employers for that matter, are courts of law and thus not subject to the same evidentiary standards of courts. If a young lady doesn’t get the verdict she wants criminally, then it is to the civil courts where she should take the case, not the school, if you are make your OJ comparison apples to apples.

    Do you apply the same rule to employers everywhere, and to all service providers with regard to their clients? I mean, whether or not you do, this is a pretty big change from the traditional way that America has been run.

    Until a bill is developed that proposes this, though, in other words, until at least one Congressman thinks this is a good idea, you probably shouldn’t treat it as a serious possibility. On the assumption that you agree with this, I like to think that you’d be with me in wanting to see conditions in the current system being improved as much as they can be.

    • #20
  21. James Of England Moderator
    James Of England
    @JamesOfEngland

    Robert McReynolds:James, 95% of our universities and colleges are NOT going to cease being ran by the feminazis, so legitimizing their system of kangaroo courts regarding sex on campus is not going to do one bit of good. They are just going to explore other ways to discover the loop holes that can be exploited.

    Human resources departments are already legitimized. We have bad judges and bad juries, too, but increasing protections for the accused does seem to help. It won’t solve the problem, but it will reduce it.

    However, all of that being said, there is probably no root and branch reform likely either–ever. Who would want to be the first politician, likely male, to make the case that we need to neuter the ability of campuses investigating rape accusations? My solution? Send you kids to the few Conservative schools out there: Hillsdale, Grove City, etc. where the atmosphere is about scholastic achievement and academics and not about partying and putting yourself in situations, boy or girl, where you will wake up the next day regretting what happened.

    Ah, so what you’re saying is “if only someone were to introduce a bill that mandated that universities published their stats on these things, so that I could work out which university to send my kids to”? I mean, they may want a major that isn’t available at Hillsdale or Grove City. Robert, my friend, allow me to sing to you the glories of the CASA!

    Robert McReynolds:Last one and then I have to go have dinner.

    Where do the young men from the Duke Lacross team go to get their reputations back? What campus department is that? Ditto the fraternity at the University of Virginia accused of unspeakable horrors in the Rolling Stone article? How will CASA prevent these instances from happening?

    The Duke Lacrosse team went through the criminal courts. Neither the CASA nor the CSA would have helped them a lot with that. Again, the problem was the personnel. I can’t think of a legal reform that would have stopped Nifong, the prosecutor, from acting in an unethical manner. We can pass laws that discourage that, but since Nifong has already lost his job, been stripped of his law license, and spent a day in jail, and now owes each of the players thirty million dollars minus whatever they’ve managed to get from him already, it seems like he’s an example of those reparations working out okay.

    Obviously, it would be better if we could stop prosecutors from bringing bad cases, and if we could stop professors from being jerks, but the university President seems to me to have done more or less the right thing. When the kids were in the criminal justice system and looked guilty, they were excluded. When evidence came through that they might be innocent, he let them back in, despite considerable opposition from members of the faculty. The case was a strong argument against tenure; eventually, I’ll get round to my “rejoice!” post on education, which will explain why I think that that will eventually happen, but we’re not there right now. Other than getting rid of tenure, I’m not sure what legal remedy against the university you believe would have helped.

    • #21
  22. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Good morning James.

    Well you have convinced me. I don’t like that we have to resort to this type of thing, but it sounds as though CASA can do more good than harm. I still want to read the bill and see exactly how it frames certain statutes, what language is used and all.

    • #22
  23. Sabrdance Member
    Sabrdance
    @Sabrdance

    University discipline is a tricky thing.  We aren’t so much in loco parentis as just loco.  We’re not equipped to handle rape investigations, but nor can we allow rapists to run free on campus.  This puts us in a bit of a bind.  The simplest solution is just to regulate sex on campus -by which I mean formally discourage it -and if we can’t do that, at least regulate the alcohol that fuels it (which we do, to some extent).  This is part of what drives dry campus rules.  It isn’t the underaged, it’s the stupidity.

    So when you have a drunken hookup, you have people who have already violated several formal rules, plus several additional bits of common sense.  Hidden in those morons are a handful of predators.  Separating them out is hard to do.

    Being clearer about handing that latter problem off to the police strikes me as a good idea.  Being familiar with the way university performance measures work, I’m less excited about publicizing them  (universities never meet their goals, they always strive to do better -meeting your goals is a warning flag to accreditors and regulators, thus is there are no sexual assaults to report, universities will invent them the same way we invent problems in classes or on campus).

    It still does not address the real problem on universities, though -which is the wreckage of the sexual revolution on children.

    But, as James says -partial solutions.

    • #23
  24. The Reticulator Member
    The Reticulator
    @TheReticulator

    Thanks for pointing out that George Will article.  I knew that Rubio defended corporate welfare but hadn’t known that he defended it on national security grounds. Now I know.

    I read the summary of the bill and looked up certain parts in the text.   I don’t like it. We need to make sure that universities don’t block victims’ access to due process, but this bill is full of requirements, not prohibitions. And there is mischief in those requirements.

    Requiring the establishment of a web site is bad enough, but requiring an biannual survey of students?  Does this imply that students are compelled to respond to the survey?  It says the survey should include no personally identifiable information, but if it’s a voluntary survey, what’s the point?  And if it’s voluntary, what’s to keep people from responding dishonestly?  And if there is personally identifiable information (such as a student ID) then you are forcing students to disclose information to authorities.

    The one thing I’m not sure about is requiring campus police to form relationships with local police departments.  It’s a good idea, but federally supervised relationships?

    • #24
  25. James Of England Moderator
    James Of England
    @JamesOfEngland

    Sabrdance: University discipline is a tricky thing. We aren’t so much in loco parentis as just loco. We’re not equipped to handle rape investigations, but nor can we allow rapists to run free on campus. This puts us in a bit of a bind. The simplest solution is just to regulate sex on campus -by which I mean formally discourage it -and if we can’t do that, at least regulate the alcohol that fuels it (which we do, to some extent). This is part of what drives dry campus rules. It isn’t the underaged, it’s the stupidity.

    **********
    Reagan’s alcohol position remains the worst of all worlds for colleges; federally mandated on the basis of a plainly dishonest rationale, it makes alcohol easily available but a responsible drinking culture hard to develop. Encourages drug use, too; alcohol isn’t the only intoxicant that encourages stupidity.

    While my preference would be for America to return to the position of the Founders (no age restrictions), or (and I don’t say this often) to become more

    That said, I really, really, really do not want a Republican Presidential candidate running on a platform of federally mandated less sex and booze in college.

    Being clearer about handing that latter problem off to the police strikes me as a good idea. Being familiar with the way university performance measures work, I’m less excited about publicizing them (universities never meet their goals, they always strive to do better -meeting your goals is a warning flag to accreditors and regulators, thus is there are no sexual assaults to report, universities will invent them the same way we invent problems in classes or on campus).

    The accreditors and regulators already have these metrics. This just means that parents and prospective students get that, too. I don’t think that many people will refuse to go to a university because there isn’t enough rape, so I think the incentives are the reverse of that.

    It still does not address the real problem on universities, though -which is the wreckage of the sexual revolution on children.

    Agreed. I find Coming Apart somewhat helpful with this, though. Much of America is in a Belmont that has recovered okay. We just need to expand Belmont and suck in more of Fishtown.

    • #25
  26. James Of England Moderator
    James Of England
    @JamesOfEngland

    The Reticulator:Thanks for pointing out that George Will article. I knew that Rubio defended corporate welfare but hadn’t known that he defended it on national security grounds. Now I know.

    Yeah, that’s one of the dumbest things he said.

    I read the summary of the bill and looked up certain parts in the text. I don’t like it. We need to make sure that universities don’t block victims’ access to due process, but this bill is full of requirements, not prohibitions. And there is mischief in those requirements.

    So far as I’m aware, there is no problem with universities blocking victim’s access to due process. There is a problem with universities imposing systems that lack due process, which is why the solution has to involve increasing the minimum levels of process. Hence requirements. Perhaps you could explain the sorts of prohibitions you’d like?

    Requiring the establishment of a web site is bad enough, but requiring an biannual survey of students? Does this imply that students are compelled to respond to the survey? It says the survey should include no personally identifiable information, but if it’s a voluntary survey, what’s the point? And if it’s voluntary, what’s to keep people from responding dishonestly? And if there is personally identifiable information (such as a student ID) then you are forcing students to disclose information to authorities.

    We have software available to anonymize student responses. The university has the responsibility to make the sample representative, but it’s free to choose how to go about that. I suspect that it will often involve a soft requirement, but that doesn’t seem like a significant hardship to me. This is an area where the left peddles bad data successfully to promote bad solutions, so having prominently available good data with a clearly superior source seems valuable.

    The one thing I’m not sure about is requiring campus police to form relationships with local police departments. It’s a good idea, but federally supervised relationships?

    It’s not really federally supervised. They just have to agree to something and if they don’t, the university has to show that it went through the steps of trying to get to an agreement. I did note that the whole thing is pretty regrettable from a federalism perspective, but it’s somewhat combatting worse Federal rules, which increases my comfort with it.

    • #26
  27. Vald the Misspeller Inactive
    Vald the Misspeller
    @ValdtheMisspeller

    CASA is just one more tentacle from the leviathan gratuitously insinuating itself into citizens lives for no net good and, if past experience is any guide, much unanticipated grief from that ole devil, unintended consequences. Ask yourself: has federal money and its attendant strings benefited college education in any obvious way? Is it more affordable? More valuable?

    Have laws like Title IX, The Clery Act and, if your boy Rubio gets his way, CASA made the nation’s campuses safer, better places to learn? Or have they instead had a large part in turning them into diversity obsessed “safe places” with speech codes and extra-legal boards of inquisition enforcing right thinking and appropriate attitudes?

    One thing is certain — any legislator who votes for one of these laws, much less cosponsors one, is clearly not in favor of a smaller, less intrusive federal government.

    • #27
  28. The Reticulator Member
    The Reticulator
    @TheReticulator

    Vald the Misspeller: We have software available to anonymize student responses. The university has the responsibility to make the sample representative, but it’s free to choose how to go about that. I suspect that it will often involve a soft requirement, but that doesn’t seem like a significant hardship to me.

    If the university is determining that it has a representative or complete sample, at some level the student responses are not anonymous.  Some IT person or his supervisor has access to the data, and we know that the left doesn’t think laws apply to it.  As long as the universities haven’t risen up in loud and angry protest against Hillary Clinton’s breaches of security, they are not to be trusted on the security of this information.  As for the “requirement” to fill out the forms, some students will think that’s an undue requirement, and they are right.  The recent student survey at USC in which students at a university were required to detail their sexual history, is an example of where this can go. USC backed off, but this episode  makes us aware that there are people working in these places who do not instinctively understand how wrong that is. As long as people like that are getting through the hiring processes, we should not trust universities on this. And if students think it is not an unwarranted intrusion, we are not doing our jobs in educating our students in civic life.

    • #28
  29. James Of England Moderator
    James Of England
    @JamesOfEngland

    Vald the Misspeller:CASA is just one more tentacle from the leviathan gratuitously insinuating itself into citizens lives for no net good and, if past experience is any guide, much unanticipated grief from that ole devil, unintended consequences. Ask yourself: has federal money and its attendant strings benefited college education in any obvious way? Is it more affordable? More valuable?

    I listed a way earlier in noting that Federal money and its attendant strings have kept military recruiting around. Do you not believe that to be positive? I agree, as I noted in the piece, that we should reduce the number of strings, and believe that part of the point of the CASA is to help us do precisely that (the publication of statistics on the web makes it undesirable for Campuses to be finding rapes, which changes the pressures placed on the administration. The improvement of statistics helps to make the case against awful procedures).

    I think that unjustly administered punishments for infractions that are not committed are fairly important, though, and believe that, while I agreed that it’s not ideal that this is going through federal law, it is very positive indeed for students and faculty who have absolutely no due process at all to receive some protections.

    Looked at like that, CASA is a shield against the tentacles of the leviathan insinuating themselves into citizens lives.

    Have laws like Title IX, The Clery Act and, if your boy Rubio gets his way, CASA made the nation’s campuses safer, better places to learn? Or have they instead had a large part in turning them into diversity obsessed “safe places” with speech codes and extra-legal boards of inquisition enforcing right thinking and appropriate attitudes?

    I don’t think that the Clery Act’s impacts are easy to evaluate, but it seems plausible to me that, yes, it has made campuses mildly safer by making it more of a problem for colleges to cover up crime. Title IX is a huge and complex thing that is not primarily aimed at safety. I agree that speech codes and extra-legal boards of inquisition are terrible and repeatedly said so. Indeed, the use of extra-legal boards of inquisition seems so harmful to me that I approve somewhat of CASA in part because it opposes them. I also agree, obviously, that Title IX’s chief impact has been to expand costs and reduce the quality of the college experience.

    I don’t think that the CASA has done any good, because it hasn’t been passed, but, yes, I think that providing basic due process for accused sex offenders would dramatically improve education for those students. I don’t think it would make a huge difference to others. If the pressure from the statistics helps to persuade colleges not to implement bad policies or helps them to implement sound policies, that seems helpful too.

    One thing is certain — any legislator who votes for one of these laws, much less cosponsors one, is clearly not in favor of a smaller, less intrusive federal government.

    I don’t believe that this is true. The Federal government, via the executive, is pushing for campus treatment that gives less protection to the accused. The CASA seeks to protect people from those intrusions of the Federal government. It’s true that requiring civil rights is an action, as is violating civil rights, but I don’t believe that the two are equivalent. Since I prefer the protection, I see those who vote against CASA as being, on balance, not in favor of a smaller, less intrusive, federal government. Since it’s a relatively minor reform in a minor field, though, I would not extrapolate to someone’s entire political view from this.  Indeed, since all politicians have some deviations, I’d say that it was a manifest fallacy to apply that logic.

    • #29
  30. James Of England Moderator
    James Of England
    @JamesOfEngland

    The Reticulator:

    Vald the Misspeller: We have software available to anonymize student responses. The university has the responsibility to make the sample representative, but it’s free to choose how to go about that. I suspect that it will often involve a soft requirement, but that doesn’t seem like a significant hardship to me.

    If the university is determining that it has a representative or complete sample, at some level the student responses are not anonymous.

    Well, no, they can use software that automatically assesses these things. They just need something that’s statistically random and of a reasonable size. They don’t need to make quotas.

    Some IT person or his supervisor has access to the data, and we know that the left doesn’t think laws apply to it.

    Not if it’s done by automated software, which is the general way of doing these things.

    As long as the universities haven’t risen up in loud and angry protest against Hillary Clinton’s breaches of security, they are not to be trusted on the security of this information. As for the “requirement” to fill out the forms, some students will think that’s an undue requirement, and they are right.

    There’s probably a box to tick to refuse to fill in the form. There generally is. I don’t agree with you that it’s undue.

    The recent student survey at USC in which students at a university were required to detail their sexual history, is an example of where this can go. USC backed off, but this episode makes us aware that there are people working in these places who do not instinctively understand how wrong that is. As long as people like that are getting through the hiring processes, we should not trust universities on this. And if students think it is not an unwarranted intrusion, we are not doing our jobs in educating our students in civic life.

    There’s a lot of assault surveys out there, and most of them aren’t particularly intrusive, to the extent that one accepts that asking people if they’ve been a victim of such a crime isn’t intrusive. I’ve filled out a couple. I agree that asking for a sexual history is tacky, and I’m glad that there was pushback such that it’s unlikely to happen again.

    • #30
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