Via Reason.com: Judge Sides with Gay Brandeis Student Guilty of ‘Serious Sexual Transgression’ for Kissing Sleeping Boyfriend:
The accused, “John Doe,” [had been found responsible by a Brandeis University investigation that denied him due process] for stolen kisses, suggestive touches, and a wandering eye—all within the context of an established sexual relationship. His former partner and accuser, J.C., did not file a complaint with the university until well after the incidents took place. In fact, J.C.’s participation in Brandeis’ “sexual assault training” program caused him to re-evaluate the relationship.
The two began dating in the fall of 2011. They broke up in the summer of 2013.
Comments Robby Soave: “In a world where affirmative consent is a prerequisite for each and every conceivable sexual act, people who awaken their partners by kissing them are committing assault.”
As I wrote about this case back in August 2014, On Campus, Absence of Due Process Extended to Gays, “Maybe these incidents should be left to the judicial system when there is evidence of an actual crime.”
More. From the Washington Examiner:
From the very beginning, the deck was stacked against Doe, as his accuser — a former boyfriend with whom he had a 21-month committed relationship prior to the accusation — submitted two sentences as to the accusation and was not required to provide a full account of the alleged sexual assault. As [Judge F. Dennis Saylor IV, a George W. Bush appointee] wrote in his decision, even if the accuser had provided such a statement, the accused was not entitled to see it.
“Indeed, the accused was required to provide his or her own detailed response without an opportunity to see or know the details of the accusation,” Saylor wrote. “There was likewise no requirement that copies of any ‘substantiating materials’ submitted by the accuser, or the names of any witnesses, be provided to the accused at any time.”
Saylor noted that school disciplinary hearings like the one Doe faced are not criminal proceedings, yet administrators essentially conducted the hearing like a criminal trial.
14 Comments for “Restoring Campus Sanity”
posted by Tom Scharbach on
The linked article starts out “A judge rebuked Brandeis University for denying fundamental due process rights … which makes my point for me — colleges and universities are not equipped to handle situations of this type.
This is not the first case of this type. A number of colleges and universities, including specifically conservative Christian colleges and universities, have been similarly sued by students who asserted that enforcement of student codes of conduct did not rise to reasonable standards of protection for the rights of the accused.
Not the first case, and not the last.
The idea that colleges and universities should monitor and control student personal behavior outside the classroom and/or other academic arenas is a throwback to the days when the age of majority was 21 years of age, rather than 18, and colleges acted “in loco parentis” to students, that is, assumed parental rights, duties, and obligations of a parent in the absence of the parent.
At present, almost all college students are legally adults (a few freshmen in college may be under the age of 18, but the number is small). Colleges no longer have an obligation, moral or otherwise, to act in loco parentis, and should not. Colleges no longer have the right to act as if students were minors under color of “in loco parentis”, and no longer have leeway to treat students as if they were minors, and should not. We have police, and we have a legal system. Let infractions of the law be handled by the legal system.
However, I acknowledge and support the right of private colleges and universities, in particular colleges and universities that a religiously-affiliated, to create and enforce codes of conduct that require stricter standards of behavior than are required by the law.
I see no reason why a private college or university cannot enter into a contract with students that prohibits otherwise legal behavior — smoking, drinking coffee or tea, dating without a chaperone, non-marital sexual conduct on or off campus, and so on — under a code of conduct fitting the college’s or university’s mission. In such case, the college or university has the legal obligation to treat any infraction as a breach of contract, with attendant protections, protections that may or may not rise to the level of due process required of the government in criminal actions.
But private or public, religious or secular, code of conduct or no code of conduct, colleges and universities should handle only those cases of code of conduct violations that are not criminal in nature, and report infractions of the law to the police, letting the legal system deal with guilt or innocence and punishment.
Colleges and universities routinely fail to meet due process standards, because colleges and universities are not equipped to provide such protections, and botch the job. When it comes to handling criminal law violations, colleges and universities should stop acting as if they are a law unto themselves.
posted by Tom Jefferson 3rd on
Yes, but how can Stephen use this story as an opportunity to decry the vast left-wing, transgender bathroom campus conspiracy to establish “thought police” at the expense of poor, Christian folk who simply want to eat,
posted by Tom Jefferson 3rd on
…. pray and love?
posted by Tom Scharbach on
Yes, but how can Stephen use this story as an opportunity to decry the vast left-wing, transgender bathroom campus conspiracy to establish “thought police” at the expense of poor, Christian folk who simply want to eat, pray and love?
Stephen is, of course, cherry-picking, and in doing so, misses the larger picture, I think.
Colleges and universities need to distinguish between non-criminal violations of a code of conduct, on the one hand, and criminal violations or potential criminal violations of law, on the other hand.
Colleges and universities, and in particular private colleges and universities, are (for the most part) and should be (again, for the most part) free to enter into contractual relationships with students concerning conduct, both on and off campus, required as a condition of admission and retention. Private colleges and universities should also be free to enforce the contracts with sanctions, including exclusion from the college or university, with minimal government intervention or regulation, and without regard for maintaining a constitutional level of due process, so long as the violations, the enforcement process and the sanctions are clearly deliniated in the contract.
Liberty University, for example, a private university, has an extensive code of conduct, with both a public and private components. The public component, the “Student Code of Conduct”, is available to anyone interested in Liberty University, and is available on the university’s website. The private component, the “Liberty Way”, was available on the university’s website until a few years ago, but now access is limited to enrolled students, faculty and administration, password protected, although excerpts from the 2012 version have been posted by former students.
The public component is a high-level statement of the code of conduct. The private component is, as I understand it, very detailed and exhaustive, close to 50 pages long, covering dress, hair styles and grooming, speech, dissemination of books and literature not pre-approved by the university, acceptable/unacceptable movies/music/internet viewing, sexual conduct and just about every other aspect of student life that you can imagine.
For example, covering the issue of sexual conduct, the public component says this:
The private component is much more detailed, and, according to excerpts posted on the web by students and former students, stating, among other things, the following:
The code of conduct is applicable and in effect at all times, on and off campus, including in off-campus housing and on semester and summer breaks.
I don’t have a problem with extralegal code of conduct contracts of this sort entered into by a private college or university and the students at that institution, and so long as the enforcement processes/procedures and sanctions are clear, I don’t have a problem with enforcement of the contract. My view is that the courts should give the colleges and universities wide latitude in this regard, because to do otherwise interferes with the right of private association.
State owned/operated public colleges and universities have less leeway in this regard, and that makes sense to me. But within reason, public colleges and universities should have necessary latitude to enforce standards of behavior related to institutional and educational goals.
However, when it comes to criminal violations or potential criminal violations, the colleges and universities, public or private, should butt out. Colleges and universities are not equipped to handle the job; the police and courts are equipped.
As far as I am concerned, colleges and universities, stuck with the heritage of “in loco parentus”, are overstepping proper boundaries. It has been centuries (dating back to the days when colleges and universities in England were run by churches, and hence not subject to common law) since colleges and universities were a law unto themselves, and in modern times, when almost all students are legally adults, colleges and universities have no role to play in handling criminal violations and potential criminal violations other than to conduct a preliminary investigation and turn the matter over the authorities when a criminal violation is suspected.
posted by Tom Scharbach on
Saylor noted that school disciplinary hearings like the one Doe faced are not criminal proceedings, yet administrators essentially conducted the hearing like a criminal trial.
That may be, but what is wrong with providing reasonable levels of protections to accused students before sanctions are imposed for violation of a student code of conduct, assuming that the contract between the college or university and the student lay out the procedures?
It may be that aping constitutional levels of due process and trial court procedures is pretentious, but it would seem to me that providing for reasonable level of protection (albeit, perhaps, pretentious) before imposing sanctions is preferable to arbitrary action.
I think that it should be noted that at least some academic accreditation bodies provide minimal standards for such processes and proceedings, as is exemplified by the way in which the ABA’s minimum standards are reflected in Liberty University Law School’s Academic Honor Code, which provides for extremely detailed processes and procedures.
I can’t help but wonder, reading this post, the rereading previous post on the subject (“On Campus, Absence of Due Process Extended to Gays”) if the real complaint is about colleges and universities’ attempts to impose standards of sexual conduct upon students, who are, after all, adults, and the level of due process protection afforded to students in processes and proceedings in cases of violations of the standards is something of a smokescreen.
If that is the real complaint, I agree with it. I think that adults should be treated as adults, students or not, and that colleges and universities are foolish to try to impose extralegal standards on private behavior, unless it the standards are clearly related to the mission and function of the college or university. It seems to me that, though, that private colleges and universities should be granted the right to impose such standards.
And that goes for left/liberal institutions like Brandeis University as well as conservative/religious institutions like Liberty University.
posted by Campus climate roundup - Overlawyered on
[…] judge blasts Brandeis over Title IX process in “kissing sleeping boyfriend” case [Steve Miller/Independent Gay Forum, KC […]
posted by Kosh III on
“people who awaken their partners by kissing them are committing assault.”
Soooo, I’ve assaulted my husband and been assaulted by him hundreds of times over the years.
SMH
posted by tom jefferson 3rd on
What if the “assault” in question, was just you expressing your “religious liberty” ?
posted by Houndentenor on
I’ve been saying this for years. Schools should not be handing criminal activities as internal matters. Rape, assault and other crimes are not simply disciplinary matters and should be handled by the local police and DA’s office. I’ve also repeatedly advised women who are raped to call the police and not campus security and demand that the police investigate. The college or university has multiple conflicts of interest (including wanting to hush up incidents that are bad PR). Not only should this crap not be going on, but state laws should not allow it.
posted by Tom Jefferson 3rd on
Yes I think that too many public college faculty and staff think that having a little legal knowledge and watching Law and Order is all that is needed to run campus procedings on serious criminal matters.
Even with well meaning faculty and staff, this is a recipe for disaster
posted by Jorge on
In fact, J.C.’s participation in Brandeis’ “sexual assault training” program caused him to re-evaluate the relationship.
Wow.
I’ve seen this happen to adolescents who start to understand what child neglect is, too. It can become a crisis. It is hard to provide a sense of security to someone in that situation when the offense requires you to maintain the family’s togetherness. Or worse, when there is, in fact, no real offense. But at least adolescents can hear such messages and report events accurately.
Younger than that, I’ve more often seen children act on suggestion.
posted by Jorge on
“First, at the very beginning of their relationship, John placed J.C.’s hand on John’s (clothed) groin while they were watching a movie in a dormitory room. J.C. now contends that the sexual contact was unwanted. John denies that the contact was non-consensual, and contends that it was simply the first step in their sexual relationship.”
Ouch.
But private or public, religious or secular, code of conduct or no code of conduct, colleges and universities should handle only those cases of code of conduct violations that are not criminal in nature, and report infractions of the law to the police, letting the legal system deal with guilt or innocence and punishment.
This leaves a lot of room for adjudicating sexual harassment cases that fall below the criminal threshold–like unwanted kissing and groin-tapping .
What? That’s actually criminal?
Well what about when you’re caught, you paid the price, and now you’re just doing elevator eyes. Don’t tell me that’s criminal, too? So you can say that it is, but do we really have to force people to go through the Beyond a Reasonable Doubt criminal process’s many legal hurdles when they are being subjected to sexual harassment, to the point that they have to choose between leaving the school and sacrificing their health?
Title-Whatever of the Civil Rights Act was written so that all students have the right to an education without regard for differences that have nothing to do with academic ability. It was written because it recognized that schools and universities are institutions of power that have the ability through action and neglect to create conditions in which it is impossible to graduate from their institutions.
Would it really be appropriate for a school to decide that just because a student loses or defaults on a demanding criminal process, and does not have the money or mental stamina to file a lawsuit, that they should allow a hostile school environment to continue?
Keep the hearings, remove expulsion as a consequence, and keep the spousal rapists on campus.
posted by tom jefferson 3rd on
I gotta say; This may be become a textbook case of a student breakup were the idea of “lets be friends” REALLY didnt go over well. I would laugh, if the legal aftermath wasnt a real court case.
Ideally, when a relationship dosent work out, the breakup dosen lead to false accusations.
Yes, sexual harassment and abusive relationships do exist and, yes, students need protection.
In this particular case it seems like something else was going on. One person wanted a more or less serious relationship. Lots of things can happen, especially involving students.
posted by To Stephen H. Miller on
Would Stephen H. Miller please e-mail me? Thank you.