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The Real Problem - "Dear Colleague Letter" US Dept Ed
- Thread starter Tokyogriz
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Growler1 said:
grizcountry420
Well-known member
Growler1 said:
Thats a good question....
ordigger said:
Ahhh! The good old days!! Such a romantic thought. When we could green light slavery, count them as 3/5 a person, women couldn't vote and state assemblies could appoint our senators.
You are on to something there sir!!
George Wallace
Ursa Major said:
The George Wallace part sort of proves my point of view now. Take David Dukes, former KKK leader, and a very conservative Republican. Scary how close a liberal like Wallace, and a Conservative like Dukes were on the same wavelength. btw....those other transgressions by the Constitution have since been abolished via the Constitutional amendment process.
Can you imagine getting and Constitutional amendment through the process now? I say, we never have another one ever again unless things change drastically.
I think you guys are making way too big of a deal out of the precise burden of proof in a hearing over student conduct, i.e., beyond a reasonable doubt versus clear and convincing versus preponderance of the evidence. The main thing is for the committee to listen to the known facts and make a reasonable decision that is not arbitrary, capricious or outright discriminatory.
Let’s be practical. Violations of a student conduct code should be dealt with fairly and somewhat consistently (I use the term “somewhat” because the facts in any two cases are never exactly the same), but nobody’s life, liberty or even property (except maybe in a very limited sense) is at stake, so these proceedings don’t need to drag on endlessly. So I don’t think it’s fair to say that “clear and convincing” is right and that “preponderance of the evidence” is wrong. Or that one is “constitutional” and the other is not.
Some process may be due here, but to suggest that the process has to resemble a criminal trial is a real stretch.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2098&context=ilj&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dis%2520due%2520process%2520required%2520to%2520take%2520away%2520an%2520athletic%2520scholarship%26source%3Dweb%26cd%3D1%26ved%3D0CGYQFjAA%26url%3Dhttp%253A%252F%252Fwww.repository.law.indiana.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D2098%2526context%253Dilj%26ei%3D8zHJT5TBNq782gWrrJXbCw%26usg%3DAFQjCNE6ksxqwbq3APLt5PSNd4UN784hEA#search=%22due%20process%20required%20take%20away%20an%20athletic%20scholarship%22" onclick="window.open(this.href);return false;
http://laworgs.depaul.edu/journals/sports_law/Documents/NCAA%20eligibility%20by%20Bakker.pdf" onclick="window.open(this.href);return false;
http://heinonline.org/HOL/Page?handle=hein.journals/shjsl3&div=8&g_sent=1&collection=journals" onclick="window.open(this.href);return false;
Let’s be practical. Violations of a student conduct code should be dealt with fairly and somewhat consistently (I use the term “somewhat” because the facts in any two cases are never exactly the same), but nobody’s life, liberty or even property (except maybe in a very limited sense) is at stake, so these proceedings don’t need to drag on endlessly. So I don’t think it’s fair to say that “clear and convincing” is right and that “preponderance of the evidence” is wrong. Or that one is “constitutional” and the other is not.
Some process may be due here, but to suggest that the process has to resemble a criminal trial is a real stretch.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2098&context=ilj&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dis%2520due%2520process%2520required%2520to%2520take%2520away%2520an%2520athletic%2520scholarship%26source%3Dweb%26cd%3D1%26ved%3D0CGYQFjAA%26url%3Dhttp%253A%252F%252Fwww.repository.law.indiana.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D2098%2526context%253Dilj%26ei%3D8zHJT5TBNq782gWrrJXbCw%26usg%3DAFQjCNE6ksxqwbq3APLt5PSNd4UN784hEA#search=%22due%20process%20required%20take%20away%20an%20athletic%20scholarship%22" onclick="window.open(this.href);return false;
http://laworgs.depaul.edu/journals/sports_law/Documents/NCAA%20eligibility%20by%20Bakker.pdf" onclick="window.open(this.href);return false;
http://heinonline.org/HOL/Page?handle=hein.journals/shjsl3&div=8&g_sent=1&collection=journals" onclick="window.open(this.href);return false;
ordigger said:
Ordigger, I wouldn't consider GW a liberal by any stretch of the imagination especially in the context of today's politics. And that same amendment process gave the gov. the ability to have an income tax.
I was only trying to point out that some people (e.g. some strict construtionists) tend to romanticize the founding fathers and that period of time without being critical thinkers or realizing that time changes our world views and morals (13th amendment). BTW, I wasn't trying to paint you that way either. Just a commentary on romanticizing the past.
I agree with you about the amendment process in today's polorizered political landscape.
AllWeatherFan said:
There is a huge difference between these standards. This is especially important when the underlying conduct is closer to criminal than to something like cheating. The preponderance standard is ridiculously low. Note that UM (and many schools) maintain the higher standard for everything except sexual assault/harassment. Huh? If anything, it ought to be the other way around. Note that the case law has developed more for things like cheating, and when the standard for sexual assault was higher. The case law will start to favor the student more now, especially in the sexual assault area. I believe the right federal judge will eventually throw out the preponderance standard for sexual assault.
PlayerRep said:
That's my point. The school would not be out to prove "sexual assault," which is a criminal offense that potentially results in loss of liberty.
AllWeatherFan said:
I guess I don't understand your point. My point is that courts are going to start to side more often with students over the university, who allege due process and other procedural and Constitutional violations in university proceedings that use the lower standard.
Are you saying that athletic scholarships constitute constitutionally protected property interests? If so, on what basis?
AllWeatherFan said:
I've never thought about that issue. I'm saying that students in a university are entitled to certain basic due process rights, largely due to the 14th amendment and state constitutional law. A university is part of state government, and state government can't avoid providing due process to citizens in various types of proceedings, including proceedings to expel a student.
Do you think a university or university president should be able to just expel a student without any hearing or any process? If not, then you must believe that some level of due process is necessary.
NorthwestFresh
Well-known member
PlayerRep said:
What does that have to do with a student board conducting a hearing that recommends expulsion?
I think kicking a kid out of school for sexual assault, or taking away his scholarship for sexual assault, is different than imprisoning him for it. And I think that kicking him out or jerking his scholarship based on a preponderance of evidence, rather than clear and convincing evidence, isn't the same as denying him due process. But we'll see where the facts lead.
NorthwestFresh said:
It means that a university board has to provide certain basic due process rights. There's considerable federal case law requiring that. The more serious the consequence, the more due process that is required. This is a developing area of the law.
PlayerRep said:
The courts have long recognized the differing interests of the University community from that of the criminal justice process. Since 1961, a significant body of case law has been established that outlines basic expectations of fairness in any student disciplinary process.
I don't think you are going to see a lot of change: Osteen v. Henley (1993, 7th Circuit)
"…The attempted analogy of student discipline to criminal proceedings against juveniles and adults is not sound. The nature and proceedings of the (campus) disciplinary process…should not be required to conform to federal processes of criminal law, which are far from perfect, and designed for circumstances and ends unrelated to the academic community. By a judicial mandate to impose on the academic community and student discipline the intricate, time-consuming, sophisticated procedures, rules, and safeguards of criminal law would frustrate the teaching process and render the institutional control impotent…"
Yeah I know its old, but whats newer? Btw the standard in question at this time was: "Decisions with respect to student responsibility for alleged actions are made based on a preponderance of the evidence; that is, the hearing panel or adjudicator will determine what is "more likely than not" to have taken place."
Maybe it will change , but it hasn't yet....
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