Report: FBI Investigated Claims That Bob Knight Groped Women

[naginiF]

That's not being lazy. It's being purposefully evasive about your evidence which you want to avoid so you can hide the ignorance you rely upon to put forth idiotic conclusions.

this is my favorite 'non NM' post of the off season.

to be fair, that puts it at about #100 overall

[GGGG]

That's not being lazy. It's being purposefully evasive about your evidence which you want to avoid so you can hide the ignorance you rely upon to put forth idiotic conclusions. 

Well it is lazy.  Simply regurgitating talking points is what a lot of people do.  The problem is when they aren't just surrounded by people who have the same mindset, those talking points usually don't have much substance behind them.

And both sides do this.

[B. McBannerson]

TAMU, here are some of the ways the Dear Colleague letter of 2011 stacked the deck. 

Standard for guilt change to preponderance of the evidence

Legal representation barred for the accused

Investigation of off-campus (not on campus) incidents to be done not by police.  (Incidentally, this reversed prior policy and should have mandated public notice and comment)


The Dept of Education expected results, and how does one get results other than finding students guilty and punished. 


In 2014 when Harvard changed their policies to mirror the guidance, Harvard law faculty upon receiving the guidance in 2011 felt they were so slanted they issued a letter staying "Overwhelmingly stacked against the accused".  This isn't me, this is the Harvard Law faculty.  http://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

You have a difficult job on a difficult subject, but there is a reason why so many are actively speaking out about this.  It's gone too far over to one side. Fairness should be root of all of this.  Due Process.   That is fundamental belief of people in this country and why so many feel it isn't happening with a stacked deck on campuses right now.  Change is coming.

[TAMU, Knower of Ball]

Standard for guilt change to preponderance of the evidence

This is misleading. The standard of evidence for all other conduct violations at over 90% of schools was preponderance of evidence. This was put into place to keep schools from having a separate higher standard for sexual assault cases.

Legal representation barred for the accused

This isn't true. Students accused of sexual assault are allowed to have lawyers (something that students accused of other crimes aren't allowed to have). The lawyer simply cannot speak for the student. The lawyer can be in the room and tell the accused student exactly what to say and the student is allowed to parrot that back. The words just need to come from the student and not directly from the attorney. So this is an area where students accused of sexual assault enjoy MORE due process than any other kind of accused student.

Investigation of off-campus (not on campus) incidents to be done not by police.  (Incidentally, this reversed prior policy and should have mandated public notice and comment)

This isn't true either. Investigations of both on and off campus incidents are still conducted by law enforcement and may also be investigated by university investigators. There is nothing about the university process that impedes law enforcement for conducting investigations.

What I believe you are trying to say is that language was added to ensure that universities were investigating cases that don't occur directly on campus....which is what has always been done. Part of the student's contract with the university is that they are always representing the university and thus bound by the student code of conduct. They can be held accountable to the student code even if they are not on campus. Universities have always had an obligation to investigate conduct violations committed by their students that occur on their campus and anywhere they have a "nexus." A nexus is any location within a certain radius of campus, a location known to be occupied by specific university students (i.e. a fraternity house off campus), or while on school-sponsored travel. This has ALWAYS been the case. What the language in the dear colleague letter ensured was that some universities were shirking this responsibility because they didn't want to handle it. There were even cases where the university investigated underage drinking at an off campus house, but refused to investigate a sexual assault that happened at the same party.

I'm not sure what "(Incidentally, this reversed prior policy and should have mandated public notice and comment)" is referring to. Universities are bound by the Jeanne Clery Act and have mandated public notice and comment.

Finally, even if this was true, why would it be stacking the deck? This has nothing with due process, it is a reminder of where universities have jurisdiction. Unless you are saying that the deck is stacked because now they can't get away with it if they're off campus.

The Dept of Education expected results, and how does one get results other than finding students guilty and punished.

By investigating and hearing cases fairly as outlined by the DCL. We are required to keep documentation of everything. That is how we show our results. There is no quota as you seem to imply. Again, we are just as likely (if not more likely) to be held accountable by the DOE if we are not giving the accused proper due process.

In 2014 when Harvard changed their policies to mirror the guidance, Harvard law faculty upon receiving the guidance in 2011 felt they were so slanted they issued a letter staying "Overwhelmingly stacked against the accused".  This isn't me, this is the Harvard Law faculty.  http://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

The Harvard professors weren't commenting on the DCL. They were commenting on Harvard's policies specifically, which I agree "over-rotated" as you put it. Some of their concerns were valid, some weren't. Many, including these professors don't understand that this is NOT a legal process. It is an educational student conduct process. Attorney generals of 20 different states urged DeVos to leave the guidance untouched. You will find lawyers on both sides of this conversation.

You have a difficult job on a difficult subject, but there is a reason why so many are actively speaking out about this.  It's gone too far over to one side. Fairness should be root of all of this.  Due Process.   That is fundamental belief of people in this country and why so many feel it isn't happening with a stacked deck on campuses right now.  Change is coming.

It should be and right now there is more due process for sexaul assault cases than any other case on college campuses.

Change is coming but not the change you want. DeVos will strip the guidance and leave it up to the universities. Everyone will suffer as a result.

[Pakuni]

TAMU, here are some of the ways the Dear Colleague letter of 2011 stacked the deck. 

Standard for guilt change to preponderance of the evidence

Legal representation barred for the accused
Investigation of off-campus (not on campus) incidents to be done not by police.  (Incidentally, this reversed prior policy and should have mandated public notice and comment)
The Dept of Education expected results, and how does one get results other than finding students guilty and punished. 

Without pointing out the obvious mistakes above, a fundamental fact you are not grasping here is that these hearings are not, nor are they intended to be, criminal law proceedings. And yet you demand they be operated as such. Not happening.

The criminal justice system is set up primarily to protect the rights of the accused. That's why the standard of proof is so high. That's why legal representation is guaranteed. That's why we have all sorts of strict laws governing the collection of evidence, how charges can be brought, when someone can be detained, how evidence can be presented in court, etc.
This, of course, makes a ton of sense. In the criminal system, someone's freedom is at stake, as well as their money and their future prospects.

Unlike the criminal justice system, the college disciplinary system is not - nor should it be - about protecting the rights of the accused. It's about protecting the rights and safety of ALL students. This means justice and fairness for the accuser matters every bit as much as for the accused. It means protecting the safety of all students from having a potential rapist on campus matters at least as much as protecting a single student from being disciplined unfairly. It means the accused has no procedural rights above and beyond the accuser.
This should seem obvious. Nobody is losing their freedom in these proceedings. Nobody is ending up with a criminal record. Nobody is being deprived of their rights. Nobody is being publicly declared a rapist.
The worst possible outcome is that a kid can no longer attend the university of his/her choice.

As such, the standard of proof in these hearings is appropriately a preponderance of evidence. This is the same standard that's applied in most civil proceedings. If you're involved in a lawsuit over a fender bender, chances are the standard will be the preponderance of evidence. If you and your business partner have a falling out and go to court over who controls what assets,  chances are the standard will be the preponderance of evidence.
It is the standard "standard" in non-criminal court matters. There's nothing untoward about it being used in an administrative proceeding, as you seem to imply.

In 2014 when Harvard changed their policies to mirror the guidance, Harvard law faculty upon receiving the guidance in 2011 felt they were so slanted they issued a letter staying "Overwhelmingly stacked against the accused".  This isn't me, this is the Harvard Law faculty.  http://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

This was signed by 25 current and three retired members of the law school faculty. To put that in perspective, Harvard Law School currently has 359 faculty members. Which means 93 percent of the faculty chose not to sign it. That doesn't automatically make the stated concerns irrelevant or unfounded, but you're being misleading by stating "this is the Harvard Law faculty." It's not. It's a small number of faculty members.

[rocket surgeon]

let's juxtapose murder, robbery, aggravated assault, assault with great bodily harm, et.al. with sexual assault-wouldn't we want justice and the safety of all students including the accused to be a priority and/or goal as well?   

[TAMU, Knower of Ball]

let's juxtapose murder, robbery, aggravated assault, assault with great bodily harm, et.al. with sexual assault-wouldn't we want justice and the safety of all students including the accused to be a priority and/or goal as well?

I'm not sure what you are saying here. Universities investigate and hear cases of "murder, robbery, aggravated assault, assault with great bodily harm, et.al" alongside local law enforcement. Its not just sexual assault.

[Lennys Tap]

Without pointing out the obvious mistakes above, a fundamental fact you are not grasping here is that these hearings are not, nor are they intended to be, criminal law proceedings. And yet you demand they be operated as such. Not happening.

The criminal justice system is set up primarily to protect the rights of the accused. That's why the standard of proof is so high. That's why legal representation is guaranteed. That's why we have all sorts of strict laws governing the collection of evidence, how charges can be brought, when someone can be detained, how evidence can be presented in court, etc.
This, of course, makes a ton of sense. In the criminal system, someone's freedom is at stake, as well as their money and their future prospects.

Unlike the criminal justice system, the college disciplinary system is not - nor should it be - about protecting the rights of the accused. It's about protecting the rights and safety of ALL students. This means justice and fairness for the accuser matters every bit as much as for the accused. It means protecting the safety of all students from having a potential rapist on campus matters at least as much as protecting a single student from being disciplined unfairly. It means the accused has no procedural rights above and beyond the accuser.
This should seem obvious. Nobody is losing their freedom in these proceedings. Nobody is ending up with a criminal record. Nobody is being deprived of their rights. Nobody is being publicly declared a rapist.
The worst possible outcome is that a kid can no longer attend the university of his/her choice.

As such, the standard of proof in these hearings is appropriately a preponderance of evidence. This is the same standard that's applied in most civil proceedings. If you're involved in a lawsuit over a fender bender, chances are the standard will be the preponderance of evidence. If you and your business partner have a falling out and go to court over who controls what assets,  chances are the standard will be the preponderance of evidence.
It is the standard "standard" in non-criminal court matters. There's nothing untoward about it being used in an administrative proceeding, as you seem to imply.

All well said, Pakuni. One question - when discussing a standard of proof that is "a preponderance of evidence" TAMU has said that could mean a 50.1% likelihood, the equivalent of a coin flip. I'm not a lawyer, but that's not what I would mean by it. What's your take?

[TAMU, Knower of Ball]

All well said, Pakuni. One question - when discussing a standard of proof that is "a preponderance of evidence" TAMU has said that could mean a 50.1% likelihood, the equivalent of a coin flip. I'm not a lawyer, but that's not what I would mean by it. What's your take?

A coin flip implies that both parties start with a 50/50 shot. In this case the accuser starts at 0% and the accused starts at 100%. The burden of proof lies with the university to shift that to at least 50.1% for the accuser and 49.9% for the accused.

And as I've stated before, I'm open to moving to a "clear and convincing" standard. But only if ALL conduct cases move to a "clear and convincing" standard. There is no reason why someone accused of sexual assault should enjoy a higher standard of evidence than any other kind of case.

[Pakuni]

All well said, Pakuni. One question - when discussing a standard of proof that is "a preponderance of evidence" TAMU has said that could mean a 50.1% likelihood, the equivalent of a coin flip. I'm not a lawyer, but that's not what I would mean by it. What's your take?

This is a bit hard to answer, because every state can define that it's own way, and I don't know if every university defines it the same as their state or some other way. Generally, though, states define it as something along the lines of "more probably true than not" and then give the trier of fact (i.e. judge, jury, hearing board) some discretion as to what exactly that means.
In cases I've seen when a jury asks for a definition of reasonable doubt, a judge has always responded that it's up to the jurors to decide for themselves.

So, all that being the case, I don't believe either you or TAMU are wrong here. If "preponderance" for juror TAMU means 50.1 percent, I don't think a court would tell him that's wrong. If for you it's more like 60-40, I think the same is true.

[Lennys Tap]

A coin flip implies that both parties start with a 50/50 shot. In this case the accuser starts at 0% and the accused starts at 100%. The burden of proof lies with the university to shift that to at least 50.1% for the accuser and 49.9% for the accused.

And as I've stated before, I'm open to moving to a "clear and convincing" standard. But only if ALL conduct cases move to a "clear and convincing" standard. There is no reason why someone accused of sexual assault should enjoy a higher standard of evidence than any other kind of case.

I would think that common sense would move all conduct cases to a standard higher than 50.1%. The idea that we're kicking students out of school or disciplining them period because someone or some group determines there's a smidge better than a 50/50 chance they did something wrong seems out of line on its face to me.

[Lennys Tap]

This is a bit hard to answer, because every state can define that it's own way, and I don't know if every university defines it the same as their state or some other way. Generally, though, states define it as something along the lines of "more probably true than not" and then give the trier of fact (i.e. judge, jury, hearing board) some discretion as to what exactly that means.
In cases I've seen when a jury asks for a definition of reasonable doubt, a judge has always responded that it's up to the jurors to decide for themselves.

So, all that being the case, I don't believe either you or TAMU are wrong here. If "preponderance" for juror TAMU means 50.1 percent, I don't think a court would tell him that's wrong. If for you it's more like 60-40, I think the same is true.

Thanks for the explanation. For me, it would have to be more like 70%. Picking winners on cases that are coin flips seems so arbitrary to me. Cruel and unusual IMO. In criminal cases I'd want 90+% to be my guide.

[Pakuni]

Thanks for the explanation. For me, it would have to be more like 70%. Picking winners on cases that are coin flips seems so arbitrary to me. Cruel and unusual IMO. In criminal cases I'd want 90+% to be my guide.

That's certainly a fair way to look at it.
For me, I'd have to weight that against "How comfortable am I allowing someone I think is probably a rapist to continue being a part of this university and to continue sharing a campus with a person he/she probably raped."
In a matter that involves no criminal consequences, I suspect I'd err on the side of protecting the interests of a possible rape victim over protecting those of a possible rapist.

FWIW, here's how Black's Law Dictionary defines it:

"A standard of proof in civil cases, is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not."

[TAMU, Knower of Ball]

I would think that common sense would move all conduct cases to a standard higher than 50.1%. The idea that we're kicking students out of school or disciplining them period because someone or some group determines there's a smidge better than a 50/50 chance they did something wrong seems out of line on its face to me.

Do you have a problem with civil court? They use the same standard and can potentially fine people millions of dollars. Significantly harsher than anything a university can dole out.

You also need to keep in mind that the burden of proof is on the university. So an accuser needs to present a case that is strong enough to both overcome the initial assumption that the student is innocent AND any evidence the accused presents to the contrary.

Pakuni is also right. While 50.1% is the low bar for where "more likely than not" is set, its up to each individual to decide where their line is.

[Juan Anderson's Mixtape]

Is there a sliding scale for punishment?  For example, Case A finds the accused 50.1% guilty and Case B finds the accused 80% guilty.  Assume both are found guilty of the same violation.  Do both violators get the same punishment or does Case B get a more severe punishment?

Tamu, how would you handle such a situation?  Is there policy for these situations or is it up to the individuals/panels in charge of each case?

[TAMU, Knower of Ball]

Is there a sliding scale for punishment?  For example, Case A finds the accused 50.1% guilty and Case B finds the accused 80% guilty.  Assume both are found guilty of the same violation.  Do both violators get the same punishment or does Case B get a more severe punishment?

Tamu, how would you handle such a situation?  Is there policy for these situations or is it up to the individuals/panels in charge of each case?

There is no official sliding scale that I am aware of. It's possible that some universities might employ something like that. However, I will say that "certainty" definitely plays a role in the sanctioning phase for most panel members. All the expulsions that I have personally seen would have met even the "beyond a reasonable doubt" standard. I will also say that I personally have never seen a case where someone was at 50.1% and found responsible. I will repeat, this is based on my personal experience from working at two different universities. Not generalizable.

[rocket surgeon]

I'm not sure what you are saying here. Universities investigate and hear cases of "murder, robbery, aggravated assault, assault with great bodily harm, et.al" alongside local law enforcement. Its not just sexual assault.

sorry-i was essentially responding to pakuni's comment above mine, but i should have highlighted it-

   
     "Nobody is losing their freedom in these proceedings. Nobody is ending up with a criminal record. Nobody is being deprived of their rights. Nobody is being publicly declared a rapist.
The worst possible outcome is that a kid can no longer attend the university of his/her choice."

   i'm not trying to take this out of context, but this statement is misleading at best-the unjustly accused student is losing his freedom in an indirect sort of way.  yes he is or will be deprived of his rights.  the WORST possible outcome is MORE than being unable to attend the university of his choice-sorry, but i once must again, refer to the duke lacrosse case.  these guys were hung out to dry for a few years.  and do you think that once they were finally found not guilty that all their problems just went away?  they lost those years of their lives and then some

     

[GGGG]

sorry-i was essentially responding to pakuni's comment above mine, but i should have highlighted it-

   
     "Nobody is losing their freedom in these proceedings. Nobody is ending up with a criminal record. Nobody is being deprived of their rights. Nobody is being publicly declared a rapist.
The worst possible outcome is that a kid can no longer attend the university of his/her choice."

   i'm not trying to take this out of context, but this statement is misleading at best-the unjustly accused student is losing his freedom in an indirect sort of way.  yes he is or will be deprived of his rights.  the WORST possible outcome is MORE than being unable to attend the university of his choice-sorry, but i once must again, refer to the duke lacrosse case.  these guys were hung out to dry for a few years.  and do you think that once they were finally found not guilty that all their problems just went away?  they lost those years of their lives and then some   

The Duke lacrosse case involved the legal system - and prosecutor misconduct though and I believe the DA was disbarred for his actions.  That's quite a bit different than a Title IX hearing.

[TAMU, Knower of Ball]

   i'm not trying to take this out of context, but this statement is misleading at best-the unjustly accused student is losing his freedom in an indirect sort of way.  yes he is or will be deprived of his rights.  the WORST possible outcome is MORE than being unable to attend the university of his choice-sorry, but i once must again, refer to the duke lacrosse case.  these guys were hung out to dry for a few years.  and do you think that once they were finally found not guilty that all their problems just went away?  they lost those years of their lives and then some

The Duke LAX case was a result of the criminal courts, not the university conduct system. The case predates the 2011 DCL. And while those young men did lose years of their life, they also received quite hefty settlements. And remember, not guilty does not equal innocent.

No one loses any rights from the university process. No one has a right to go to a specific university. Hell, no one actually has a right to go to college in general. It is a privilege to be a college student and represent a university. The worst thing a university can do to a student is expel them. They are free to transfer to another institution. Significant? Absolutely. Life-altering? In a way. Loss of freedom/deprived of rights? Not at all.

[Pakuni]

   i'm not trying to take this out of context, but this statement is misleading at best-the unjustly accused student is losing his freedom in an indirect sort of way.  yes he is or will be deprived of his rights.  the WORST possible outcome is MORE than being unable to attend the university of his choice-sorry, but i once must again, refer to the duke lacrosse case.  these guys were hung out to dry for a few years.  and do you think that once they were finally found not guilty that all their problems just went away?  they lost those years of their lives and then some

The Duke lacrosse case was in the criminal justice system. It  had nothing to do with the Title IX standards we're discussing here.

[Lennys Tap]

You also need to keep in mind that the burden of proof is on the university. So an accuser needs to present a case that is strong enough to both overcome the initial assumption that the student is innocent AND any evidence the accused presents to the contrary.

I don't understand this at all. Of course when a freshman shows up on campus no one assumes that he or she is guilty of cheating, sexual assault, breaking curfew or whatever. But once accused, he or she has to establish there better than a 50% of innocence to not be punished. That's not a high bar for a burden of proof - actually it's as low as you could go for even any semblance of fairness.

[TAMU, Knower of Ball]

I don't understand this at all. Of course when a freshman shows up on campus no one assumes that he or she is guilty of cheating, sexual assault, breaking curfew or whatever. But once accused, he or she has to establish there better than a 50% of innocence to not be punished. That's not a high bar for a burden of proof - actually it's as low as you could go for even any semblance of fairness.

No. The university needs to show there is a better than 50% chance that s/he is responsible. An important distinction.

How do you feel about civil court that uses the same standard with harsher sanctions?

[Lennys Tap]

No. The university needs to show there is a better than 50% chance that s/he is responsible. An important distinction.

How do you feel about civil court that uses the same standard with harsher sanctions?

I don't see it as much of a distinction assuming both sides get to make their respective cases.

I have mixed feelings about civil cases. Sometimes they provide justice that the criminal courts don't/can't. Sometimes they are nuisances that result in settlements anyway. Sometimes they get a dollar for everyone who ever bought a Milli Vanilli record and millions for the lawyers who represented them. But if I was on a jury I wouldn't vote for the plaintiff if I thought the case was essentially a jump ball.

[rocket surgeon]

ok, i get that duke was a criminal case-sorry my bad, but back to the "worst possible outcome..."

   an unjustly ruled case(see usc, mattress girl, amherst college) ruins the dudes reputation, probably forever.  once accused of an ALLEGED sexual assault, good luck reversing public opinion, that's if that news(exoneration) gets out as prominently as the accusations.

   i'll take the expelling from the school any day.  why the he!! would i want to give a university who just ran me over, my money.  that school is the last place i would want to spend my time and call my alma mater

[TAMU, Knower of Ball]

   an unjustly ruled case(see usc, mattress girl, amherst college) ruins the dudes reputation, probably forever.  once accused of an ALLEGED sexual assault, good luck reversing public opinion, that's if that news(exoneration) gets out as prominently as the accusations.

These records are protected by the Family Education Records Privacy Act (FERPA). The university cannot speak a word about the outcome to anybody other than those who have an "educational need to know." A person's reputation cannot be damaged via the university system.

The cases you have heard of are because the accused student later chose to make their story public because they didn't agree with the process or the outcome. They had the option to not make anything public and no one would have any idea who they are.

An accusation has the possibility of damaging someone's reputation, that is true. But universities don't accuse students....other students accuse students. Those accusations would happen regardless of what the university did. Unless your suggesting that universities should discourage students from reporting sexual assaults.

You are throwing blame at the wrong people.