Trump administration to revisit Title IX

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The changes to Title IX procedures will probably be very similar to the following recommendations from the American Bar Association made in June, 2017. If you compare the ABA's recommendations to the U's student disciplinary process you will clearly see there is very little difference.

The U's procedures provide far more due process protections than most other colleges and universities. Many of the cases that are appealed to the federal courts are based on the school not even following their own student disciplinary process. The U followed their process exactly as it is written. The 10 accused Gopher players received the due process they had coming to them. We are still waiting for the player lawsuits that say otherwise.

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ABA CRIMINAL JUSTICE SECTION TASK FORCE ON COLLEGE DUE PROCESS RIGHTS AND VICTIM PROTECTIONS: RECOMMENDATIONS FOR COLLEGES AND UNIVERSITIES IN RESOLVING ALLEGATIONS OF CAMPUS SEXUAL MISCONDUCT

The Task Force recognizes the school’s responsibility to address sexual misconduct on its campus for protection of its community. Schools should be able to determine whether a violation of school policy has occurred regardless of whether there has been a violation of criminal law. Where police investigation has been initiated, schools should work cooperatively with law enforcement to the extent permissible by state and federal law.

III. PROCEDURAL PROTECTIONS

The Task Force believes that both parties should have robust procedural protections.

A.Counsel/Advocate

The Violence Against Women Authorization Act of 2013 requires that in cases of sexual assault, both parties have the right to an advisor of their choosing, who may be an attorney or third party advocate. All advisors, including attorney advisors, must adhere to all conditions and obligations required by the school’s process.

B.Notice

Both parties should be provided with written notice as contemporaneously as is practical that a school or its designated investigator will commence a formal investigation. This notice should include the date of the alleged incident if known, a summary of the alleged facts, a summary of
the specific policy violation(s) under investigation by the school, and instructions on how to access the relevant policy and adjudicatory process.

C. Discovery

The school should prepare an initial comprehensive investigation report and should notify both parties contemporaneously of the availability of the report. This report should include information such as party statements, witness statements, and any inculpatory or exculpatory
information collected during the investigation. Schools should disclose a list of information obtained during the course of the investigation even if it was not considered relevant evidence for the decision - maker(s).

D. Impartial Decision-maker

As a matter of fundamental fairness, schools and their designated personnel must be fair, impartial, and free of conflicts of interest. Both the investigator and the decision-maker(s) should receive fair and balanced training on how to objectively investigate and adjudicate these matters.

E. Silence

In the interest of fundamental fairness, and recognizing the prospects of parallel or follow-on criminal proceedings, the respondent’s silence should not be the basis of a finding of responsibility. The Task Force emphasizes that as long as it comports with the standards
articulated in Section III - C and Section IV - D below, the complainant’s statement may serve as the sole basis for a finding of responsibility.

F. Appeal

The Task Force recommends that both parties have a right to appeal. The grounds for appeal should be limited to (1) new information not known or available at the time of the hearing; (2) procedural error that materially affected the findings of fact (this includes improperly excluding
or including evidence); (3) the imposition of a sanction disproportionate to the findings in the case (that is, too lenient or too severe); or (4) the conduct as found by the decision-maker does not violate school policy (this is not intended to allow an appeal for new fact-finding).

IV. THE HEARING

The Task Force recommends an adjudicatory hearing to determine whether the respondent committed sexual misconduct.

A. Standards for Evidence at Hearing

In general, evidence may be presented during a hearing if it is relevant, not unduly repetitious, and the sort of information a reasonable person would find reliable. Evidence is relevant if (1) it bears on a fact of consequence in the case, or (2) it reflects on the credibility of a testifying party
or witness in a material way.

B. Recording Proceedings

The hearing should be recorded or transcribed. Reasonable care should be taken to create a quality recording and minimize technical problems.

C. Participation in the Proceedings

Neither the complainant nor the respondent should be required to participate in the proceedings. However, the decision-maker(s) should not consider either party’s personal account of what happened unless that party is available for questioning by the decision-maker(s) and the other party.

D. Asking Questions

The complainant and respondent may not question one another or other witnesses directly, but should be given an ongoing opportunity during the proceeding to offer questions to be asked through the decision-maker(s), who will determine whether to ask them. The investigator should be available for questioning by the decision-maker(s) and the parties.

V. DETERMINING WHETHER A VIOLATION OCCURRED

Regardless of the method a school uses to determine whether a violation occurred, the Task Force urges that the following protections be put in place.

A. Composition of Panel

Recognizing that there are different models that could provide for a fair and equitable resolution, the Task Force favors having at least three people separate from the investigator decide whether a violation occurred. The Task Force recognizes that there are inherent benefits to having a
diverse panel when deciding responsibility or sanctions. A panel can be diverse across a number of dimensions including gender, race, age, sexual orientation, and position within the university. The inclusion of students can also provide an important perspective.

B. Necessary Vote for Finding of Responsibility

Schools should require a unanimous vote among decision-makers for a finding of school policy violation and a finding of responsibility.

C. Insufficient Evidence and Outcome

If there is insufficient credible, reliable, and relevant evidence for the decision-maker(s) to find that a violation occurred then the student must be found not responsible.

D.Standard of Proof

The Task Force spent considerable time discussing the standard of proof to be used by decision-maker(s) in determining whether a violation has occurred. Some Task Force members thought it was unfair to have a lower standard of proof when respondents were facing suspension and possible expulsion, coupled with the potential collateral consequences that accompany a finding of responsibility. Other Task Force members considered it unjust to have an elevated standard of proof given the historical challenges complainants often faced in getting schools to respond adequately to allegations of sexual misconduct. For purposes of the school disciplinary system, everyone was in agreement that the standard should not be beyond a reasonable doubt.

Read more at: https://www.americanbar.org/content/...thcheckdam.pdf
 

A committee of undoubtedly philosophically diverse lawyers created these recommendations. Some clearly would go further, some would change nothing. There are differences if you look closely enough.

I see little in here about the very problematic EOAA investigations; seems mainly about the SSMS which is the less problematic arm of the the process (although still far from ideal). For example, did the second 5 realize they were at risk when they were interviewed as witnesses? Were they advised to obtain or provided competent defense counsel prior to giving their unrecorded statements?
 

Thanks, Cruze, for sharing the ABA Recommendations. I disagree, though, that the ABA Recommendations differ little from the U’s Student Sexual Misconduct Procedures. There is at least one respect in which they differ significantly. There is no express right of cross-examination under the U’s procedures. I recognize that the accused 10 football players last year were accorded that right, but I don’t know whether that is the norm or a response to the player boycott. More fundamentally, is the issue – not fully resolved in the ABA recommendations – with respect to the governing standard of proof. I agree with the Star-Tribune, which last year editorially advocated clear and convincing rather than the preponderance of evidence standard currently applied.
The latter standard is that which is applied in civil proceedings in which the parties have far more robust discovery and cross-examination rights and thus a greater ability to prove their case. I appreciate that advocates of the lesser standard seek to address problems in protecting woman, such as the difficulty of meeting a higher standard where the only witnesses are the complainant and the accused. As important as these considerations are, I think those advocates have often under-recognized the extent to which sexual misconduct claims are false, and the consequences of being labeled a sexual predator, in justifying a low threshold of proof and minimal procedural safe-guards.
It has been suggested, for example, that only 2 to 8 percent of sexual assault claims are false, meaning that 92 to 98 per cent are true. See KC Johnson & Stuart Taylor, Jr., The Campus Rape Frenzy; The Attack on Due Process at America’s Universities (Encounter Books, New York 2017) at 62-62. But such suggestions fail to recognize that a large percentage of supposedly true claims are ones that were not prosecuted because of lack of sufficient evidence. Ibid.
 

The ABA recommendations have many differences with what occurred here. Among them, the ABA recommends that, the investigating body and the Panel be separate and that all testimony be recorded or transcribed. Neither occurred here, students shouldn't have to appeal to get an independent panel, the need for records should be self evident.
 


Wait, Cruze was inaccurate?


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Spoofin said:
Wait, Cruze was inaccurate?


Sent from my iPhone using Tapatalk
Click to expand...

An absolutely huge difference is that unless either party makes themselves available for questions by the other party, their personal account should not be taken into consideration.

"Neither the complainant nor the respondent should be required to participate in the proceedings. However, the decision-maker(s) should not consider either party’s personal account of what happened unless that party is available for questioning by the decision-maker(s) and the other party."
 


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