Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.
providing an escort to ensure that the complainant can move safely between classes and activities;
• ensuring that the complainant and alleged perpetrator do not attend the same classes;
• moving the complainant or alleged perpetrator to a different residence hall or, in the case of an elementary or secondary school student, to another school within the district;
• providing counseling services;
• providing medical services;
• providing academic support services, such as tutoring;
• arranging for the complainant to re-take a course or withdraw from a class without penalty, including ensuring that any changes do not adversely affect the complainant’s academic record; and
• reviewing any disciplinary actions taken against the complainant to see if there is a causal connection between the harassment and the misconduct that may have resulted in the complainant being disciplined.
Now, you might argue that expulsion is the least of the penalties someone should face if an investigation finds a high probability that an episode of sexual violence occurred in which that person is alleged to be the perpetrator.
But per notes 5 & 38, a forcible sex offense as defined by the Clery act includes 'any sexual act directed against another person forcibly or against that person’s will, or not forcibly or against the person’s will where the person is incapable of giving consent.' (emphasis added) Per page 1, there is a presumption that any drug and alcohol use render individuals incapabale of giving consent & per page 15, 'OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations [ie drug/alcohol use] will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence.' And per page 3 'Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX.' The questions of scope a severity necessary to create a hostile environment are further explored on page 3 and in note 10. Not only that, but (per page 4) the unwanted sexual activity need not take place on the school campus, and the complaint need not even be brought by a student, but may be lodged by a parent or third party who feels that a hostile environment exists at the school whether or not the supposed victim thinks so.
The problem here, in my view, is that the definition of sexual harassment has been broadened to the point of making compliance virtually impossible, at least insofar as it relates to intra-student sexual activity, the specific subject of this letter. Under these guidelines, if student A consumes alcohol or drugs and later makes out with student B. who grabs student A's butt - let's say this makeout session is widely witnessed, to remove questions of credibility - then student A can claim to be the victim of a forcible sex act carried out by student B. Student A has consumed alcohol and is thus incapable of giving consent, while student B has engaged in intimate touching by squeezing student A's butt - regardless of who proposed or initiated the making out, and regardless of whether student B has consumed drugs or alcohol. Absent a breathalyzer and possibly a signed consent form, it's virtually impossible for student B to gainsay allegations of misconduct by student A, and in order to ensure that student A is not subjected to a hostile educational environment (and thus, loss of federal funding), the institution is required to do everything it can to keep the two apart. Naturally, expulsion of student B becomes the simplest method for achieving that, even though student B's conduct may not rise to the threshold of criminal activity at all; unfortunate for student B, but failure to do so places the educational institution's funding at risk, and thus its mission, so student B is likely to be expelled so as not to disenfranchise the student body as a whole.
This is a real problem. Not because I support rape or sexual harassment in any fashion, but because (as bulgaroktonos points out), the burden of proof against an alleged perpetrator of such harassment is so inconsistent. Whereas a charge of theft or nonsexual violence (eg a punch in the nose) would require proof beyond a reasonable doubt in order to expel a perpetrator or place the person on academic probation, any student who has a drink or a toke is effectively in a liability-free zone which allows for a retroactive determination of of whether a forcible sexual assault took place.
Coupled with the well-established thin skull rule of tort liability, it would not matter at all whether student B knows that student A has consumed any alcohol or drug which impairs the ability to give consent, or whether student B is aware that student A is a student at the same educational institution, or even whether student A is in fact delighted to be the recipient of student B's sexual advances, but student A's parent/friend/classmate - who we'll call party C - disapproves of student B's sexual activity with student A and claims on student A's behalf that student B committed a forcible sexual act against student A due to student A's impaired ability to grant consent, and that absent by the institution, party C considers a hostile educational environment to exist. The scope for abuse by those with authoritarian or jealous motives is obvious, the standard for determination of fault is low, and the incentives for higher ed institutions to comply with the same standards applied to k-12 schools (despite the widely different situation of the students) are so high as to create a perverse incentive against allowing any kind of sexual contact whatsoever to occur between students. This is, in effect, a legal chastity belt that can be affixed to any attendee or visitor to an educational institution for the duration of their academic involvement.
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