The Real Problem - "Dear Colleague Letter" US Dept Ed

[PlayerRep]

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.

It is different. However, it's absolutely clear that a university needs to provide basic due process for the accused in that situation. Lots of federal case law on it. I believe that one's diploma has been determined, at least by some courts, that it's a constitutionally protected property right (altho I don't know that for sure). There are also liberty concerns. Whether preponderance is sufficient for due process purposes will likely be decided by a court in the not to distant future. You and I disagree on that one. In the case of UM's changing of the student code, UM has the additional problem of applying a new code to a prior incident. That would seem to be a huge problem for UM.

 

[PlayerRep]

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.

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.

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.

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....

That case is old and dated, but no one is trying to argue, in this situation, that the standards ought to be the same as the criminal standards, i.e. beyond a reasonable doubt. Thus, that case isn't particularly relevant.

 

[tnt]

If you believe a the judge somewhere will over rule the 7th circuit and throw out the "preponderance" or "more likley than not" standard what would the new standard be?

 

[AllWeatherFan]

You and I disagree on that one.

I disagree that we disagree. It all depends on the facts. And I don't know the facts.

 

[PlayerRep]

You and I disagree on that one.

I disagree that we disagree. It all depends on the facts. And I don't know the facts.

The facts aren't important to my legal analysis of using a lower legal standard and trying to apply the changed lower standard to prior incident.

I've enjoyed the discussion. Thx.

 

[PlayerRep]

If you believe a the judge somewhere will over rule the 7th circuit and throw out the "preponderance" or "more likley than not" standard what would the new standard be?

A judge doesn't have to suggest another standard. A judge can just say the lower standard is not constitutional. However, the obvious standard is the one that's been used by most universities for years, i.e. clear and convincing--which is also UM's standard for everything else other than sexual assault/harassment. Most universities don't believe the standard should be preponderance. The changes are being made only because of the Dear Colleague letter.

I would ask you: why should a university use a different lower standard for something as important as sexual assault? What's the logic behind that? I could make an argument that, if anything, the standard for sexual assault ought to be higher than for other things.

 

[AllWeatherFan]

The facts aren't important to my legal analysis of using a lower legal standard and trying to apply the changed lower standard to prior incident.

Actually, some of the the facts I don't know are the ones you assert about changing and applying a lower standard. It may very well be true, I just don't know.

Likewise - good discussion.

 

[PlayerRep]

The facts aren't important to my legal analysis of using a lower legal standard and trying to apply the changed lower standard to prior incident.

Actually, some of the the facts I don't know are the ones you assert about changing and applying a lower standard. It may very well be true, I just don't know.

Likewise - good discussion.

Which facts that I assert? If the fact about when UM amended its student code to put in the lower standard, it is undisputed that the code was not officially changed until something after Aronofsky wrote his Feb. 28, 2012 memo and the incident occurred before then.

 

[tnt]

I would ask you: why should a university use a different lower standard for something as important as sexual assault? What's the logic behind that? I could make an argument that, if anything, the standard for sexual assault ought to be higher than for other things.

They are not necessarily deciding the question of sexual assault under Title IX but rather a broader question of sexual harassment/discrimination. I would argue that they are in the largest part determining the atmoshphere under which their students live/work and the effect the "accused" (for lack of a better word) has on it. A lower standard would most certainly under those circumstances be appropriate.

You are certainly more familiar with employment law than I, but it doesn't take much to remove a person for contributing to a "hostile work environment" I would assume they could easily contibute to a hostile environment at the U of M.

Remember the honor board is not bound to change their decision even if subsequent criminal action finds the accused not guilty nor is a criminal verdict grounds for appeal.

 

[NorthwestFresh]

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.

What does that have to do with a student board conducting a hearing that recommends expulsion?

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.

I'll ask again.

What does not having a hearing before expulsion have to do with this specific case being discussed?

 

[AllWeatherFan]

Which facts that I assert? If the fact about when UM amended its student code to put in the lower standard, it is undisputed that the code was not officially changed until something after Aronofsky wrote his Feb. 28, 2012 memo and the incident occurred before then.

Yes. Even undisputed facts are still facts.

 

[tnt]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

 

[PlayerRep]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

 

[Skookum-Jim]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

A bit ironic coming from you buddy. He seems to be the only one on here that is writing in english.

 

[PlayerRep]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

A bit ironic coming from you buddy. He seems to be the only one on here that is writing in english.

Okay, please explain what he said in his above post.

 

[Skookum-Jim]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

A bit ironic coming from you buddy. He seems to be the only one on here that is writing in english.

Okay, please explain what he said in his above post.

I don't know, just jerkin' yer chain.

 

[tnt]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

That would require you know that the the Student athlete honor code and The Students Honor code are two different things. One was changed in regards to how Athletes are handeled. and one was left alone.

Your undisputed "facts" that the "standards were changed making it unfair for accused rapists are as dubious as some of your "defense"

I would question given the debate you great legal minds have had over the "change" whether the Honor committee would debate the semantics OR listen to the evidence and information before them and without the help of attorneys and judges telling them how they are supposed to think simply decide whether or not they think "he did it" and take a vote. Sometimes they call this common sense.

But you really do know this PR, just as all of us they only time you get confrontive or insulting is when the ground you are standing on gets even a wee bit shaky.

 

[PlayerRep]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

That would require you know that the the Student athlete honor code and The Students Honor code are two different things. One was changed in regards to how Athletes are handeled. and one was left alone.

Your undisputed "facts" that the "standards were changed making it unfair for accused rapists are as dubious as some of your "defense"

I would question given the debate you great legal minds have had over the "change" whether the Honor committee would debate the semantics OR listen to the evidence and information before them and without the help of attorneys and judges telling them how they are supposed to think simply decide whether or not they think "he did it" and take a vote. Sometimes they call this common sense.

But you really do know this PR, just as all of us they only time you get confrontive or insulting is when the ground you are standing on gets even a wee bit shaky.

If you thing the student code was left alone, then it still contains the clear and convincing standard--yet they are trying to apply the "new" lower preponderance standard to JJ. The Aronofsky memo, which I quoted several times, discusses the proposed changes.

Tnt, you are too old to be posting. You continue to spew incorrect information in almost all of your posts. You are completely out to lunch. Consider whether you want to continue to embarrass yourself. You are doing a disservice to UM.

 

[Growler1]

Well maybe for giggles, I'll dispute (or least question the undisputed facts) student athlete code was updated in so far as "punishment" and reaction to "offenses" was redifined and taken out of the hands of the coaches. I just can't find any changes to the 2011 - 2012 student honor code or change of standards to either code.

Could you put that into English for some of us English-only readers?

That would require you know that the the Student athlete honor code and The Students Honor code are two different things. One was changed in regards to how Athletes are handeled. and one was left alone.

Your undisputed "facts" that the "standards were changed making it unfair for accused rapists are as dubious as some of your "defense"

I would question given the debate you great legal minds have had over the "change" whether the Honor committee would debate the semantics OR listen to the evidence and information before them and without the help of attorneys and judges telling them how they are supposed to think simply decide whether or not they think "he did it" and take a vote. Sometimes they call this common sense.

But you really do know this PR, just as all of us they only time you get confrontive or insulting is when the ground you are standing on gets even a wee bit shaky.

If you thing the student code was left alone, then it still contains the clear and convincing standard--yet they are trying to apply the "new" lower preponderance standard to JJ. The Aronofsky memo, which I quoted several times, discusses the proposed changes.

Tnt, you are too old to be posting. You continue to spew incorrect information in almost all of your posts. You are completely out to lunch. Consider whether you want to continue to embarrass yourself. You are doing a disservice to UM.

The biggest disservice to UM is being done by a blathering attorney, who has no connection to the university, but whose personal agenda to elevate his low self esteem by stalking players, coaches and administrators continually embarrasses both himself and the university.

 

[PlayerRep]

Could you put that into English for some of us English-only readers?

That would require you know that the the Student athlete honor code and The Students Honor code are two different things. One was changed in regards to how Athletes are handeled. and one was left alone.

Your undisputed "facts" that the "standards were changed making it unfair for accused rapists are as dubious as some of your "defense"

I would question given the debate you great legal minds have had over the "change" whether the Honor committee would debate the semantics OR listen to the evidence and information before them and without the help of attorneys and judges telling them how they are supposed to think simply decide whether or not they think "he did it" and take a vote. Sometimes they call this common sense.

But you really do know this PR, just as all of us they only time you get confrontive or insulting is when the ground you are standing on gets even a wee bit shaky.

If you thing the student code was left alone, then it still contains the clear and convincing standard--yet they are trying to apply the "new" lower preponderance standard to JJ. The Aronofsky memo, which I quoted several times, discusses the proposed changes.

Tnt, you are too old to be posting. You continue to spew incorrect information in almost all of your posts. You are completely out to lunch. Consider whether you want to continue to embarrass yourself. You are doing a disservice to UM.

The biggest disservice to UM is being done by a blathering attorney, who has no connection to the university, but whose personal agenda to elevate his low self esteem by stalking players, coaches and administrators continually embarrasses both himself and the university.

Actually, one of problems is you G1, who, with no basis, constantly bashes the athletic program and players, lies frequently in his posts (about the program and himself), has been kicked off the message board about 75 times, and doesn't support the program monetarily or otherwise. In fact, G1 is one of the two most disliked posters by participants and supports of the program. Contrast that with people who support the program and the university, monetarily and otherwise. A particular posters' father played football for UM, various relatives are UM grads and some played football, and 2 of kids attended UM.