Monday, November 19, 2018



Betsy DeVos Formally Unveils New Title IX Rules: 3 Ways They Will Strengthen Due Process on Campus

The Education Department has officially released new rules on how to enforce Title IX, the federal statute that forbids sex and gender-based discrimination in public schools.

This guidance will replace an approach, established under the Obama administration, that threatened free expression on college campuses and due process rights for students accused of sexual misconduct. Unlike the Obama-era guidance, the DeVos policies operate in accordance with basic principles of fairness. They are a massive step forward. If colleges are going to be involved in the business of adjudicating sexual assault, this new approach is vastly preferable.

A draft of the new proposals was released in September; the final version differs slightly, according to an Education Department spokesperson familiar with the process.

The biggest change since the draft proposal is that the increasingly popular single-investigator model of sexual misconduct adjudication—in which a sole administrator was charged with investigating the allegation, preparing a report on the matter, and passing judgment—is no longer permitted. Universities will be required to provide a separate decision maker, either an individual or a group, to determine an accused student's guilt.

A less welcome development is the appeals provision: Under the new rules, both the accuser and the accused will still be able to appeal the outcome of a Title IX decision. Civil libertarians opposed this idea. In the criminal justice system, only the defendant can appeal a guilty verdict; holding an additional trial after a finding of innocence constitutes double jeopardy.

But in other important respects, the new rules are a vast improvement over what existed previously. Here are three ways the new DeVos rules will make campuses freer and fairer places:

1) They define sexual misconduct more narrowly. Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex. But the new guidance specifies that Title IX is only infringed when conduct is severe, pervasive, and objectively offensive. (Violence and quid pro quo arrangements are also prohibited.) An administrator with knowledge of a potential Title IX violation does not need to follow through with an investigation if the allegation does not satisfy these criteria.

2) The new rules mandate cross-examination. Previous guidance did not explicitly forbid cross-examination, but it heavily discouraged the practice due to concern that questioning an alleged sexual assault survivor would be re-traumatizing. The new rules state that neither the accuser nor the accused need to be physically present in the same room, but their attorneys—or support persons provided by the university—must be allowed to submit questions on their behalf for the other party to answer.

There are some exceptions. Neither party may ask questions pertaining to their previous sexual history with other partners. This is consistent with state and federal "rape shield" laws which also limit such questioning.

3) The new rules let colleges set their own evidentiary standards but require similar standards for non–Title IX adjudication. Currently, universities must adjudicate sexual misconduct under a preponderance-of-the-evidence standard: The accused is found guilty if there is 51 percent certainty that he or she is guilty. Henceforth, universities may use either this standard or the clear-and-convincing standard, which requires greater certainty. I am skeptical that many administrations will return to the higher standard of proof, which opens them up to criticism from feminist activists who think they aren't doing enough to punish rapists. However, the new rules stipulate that a university must use the same standard for Title IX as it does for other matters—even ones involving the faculty. If academic misconduct is adjudicated under a clear-and-convincing standard, sexual misconduct must be handled in such a manner as well. This could create pressure to adopt higher standards uniformly.

There are other boons for advocates of due process. The jurisdiction of Title IX will be limited to events that transpire on campus, or are properly described as school functions. The new rules also recognize differences between K-12 education and college: K-12 teachers, for instance, must initiate investigations if they become aware of sexual misconduct, whereas college professors are not necessarily on the hook—at the university level, misconduct must generally be reported to the Title IX office for an investigation to unfold.

These rules will undoubtedly infuriate the Title IX activist movement, which has worked tirelessly to strip accused students of fundamental due process protections in the name of combating the campus rape problem. NARAL, a pro-choice feminist organization, tweeted Thursday that "a new rule from Betsy DeVos would require universities to allow accused sexual abusers to cross-examine and re-traumatize their victims. This is absolutely sickening." This is misleading—the new rule only requires universities to allow the accused to question their accusers vis a vis an intermediary. Nevertheless, Rep. Joe Kennedy (D–Mass.) retweeted the comment, adding, "No survivor should be cross-examined by his or her accused rapist. Ever. Full stop." This is a curious statement; in the criminal justice system, an accused rapist who is representing himself already enjoys the right to question his accuser.

Reforming Title IX is largely a thankless task, given that those helped by these reforms—men accused of sexual misconduct—are an unsympathetic lot. Most of the people who are very invested in Title IX as an issue are victims' rights advocates who see any attempt to re-balance the scales of justice as a sexist attack. There's a tempting narrative here—"Trump administration changes law to hurt women"—that will undoubtedly fool many who are unfamiliar with the specifics of Obama-era Title IX abuse.

Missing from this narrative is any acknowledgement of the fact that the previous Title IX guidance had created more problems than it solved: Hundreds of young men have filed lawsuits alleging breach of contract and due process violations. Universities found themselves between a rock and a hard place. They could ignore the federal government, and risk their public funding, or they could ignore students' rights, and risk going to court. This reality wasn't sustainable, and DeVos's administration deserves tremendous credit for taking some steps to address the problem.

It's a tough job, but someone had to do it.

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Maybe that feminisation of education wasn't that great an idea?

Some decades back it was noted that girls did rather worse than boys in our education system. Something must be done. Thus the education system was feminised. This isn’t referring to the manner in which there are almost no men actually in the frontline, they being as rare as hen’s teeth in teaching the littler ones. Rather, there was an insistence that girls and boys learned in a slightly different manner, showed that they learned in a slightly different manner.

All of which is most interesting of course. This idea that mean and women are entirely equal in every way was rather contradicted by this insistence that an all or nothing exam system favoured boy styles of learning, a more cooperative, course work based, system favours girls. But then few activists are willing to note the inconsistencies in their own insistences.

So, what was done was that the system was moved from that boy favouring to a more girl favouring structure. Out went the idea of two years work to be tested the once, and once only, in two three hour exams. That system considered to favour boys. In comes course work, continual marking, a system supposed to favour girls more.

The result?

Britain’s education system is failing to tackle the “astonishing” underperformance of boys as feminists have made the topic “taboo”, the former head of the university admissions service has warned.

Mary Curnock Cook, who was chief executive of Ucas until last year, said the fact that boys are falling behind in education is a national scandal – yet it is such an “unfashionable” topic to discuss that it has become “normalised”.

Girls outperform boys in all aspects of education, from primary school to GCSEs and A-level results. Last year, 57 per cent of women went to university compared to 43 per cent of men, a gap that has widened significantly over the last decade.

“I just find it unacceptable to think that it’s OK to let boys fall further and further behind in education and allow the gap to get bigger,” Ms Curnock Cook said.

“Boys underachieving in education is becoming pretty normalised – everyone knows it yet no one is doing anything about it.” She said that other disparities in education – such as the gulf between rich and poor children – are narrowing, but the gap between boys and girls is getting wider.

Who knows, perhaps the feminisation of education wasn’t all that great an idea? We could even get all economic and efficient about all of this. We’re going to get more years of labour out of the men – breaks to have families and all that – so perhaps we should in fact be aiming societal investment in education at them, not the women who will work for fewer years?

Perhaps the world’s not quite ready for that level of reality but why have we designed an education system that disfavours boys?

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Australia: NSW plans a de facto confiscation of private school property

A central part of private property rights is the ability to say who uses it.  So this abolishes that right  It is pure communism. Why should those who have not paid for it be entitled to it?

Private schools could be forced to share their multimillion-dollar facilities with public school students under a radical new plan.

The proposal - pushed by Education Minister Rob Stokes - encourages Australia's most prestigious schools to open up their sports and arts facilities to ensure the best facilities can be used by all students regardless of their school.

Access to playing fields, swimming pools and gyms, along with theatres and libraries would be under the new proposal and may require tweaking the Education Act to come into effect.

'There are a couple of regulatory­ hurdles that we need to overcome,' Mr Stokes told The Saturday Telegraph.

Current regulations prevent private­ schools receiving government money to recover the costs of opening their facilities.

'The challenge then if they're getting small amounts of money to clean halls and so forth, after a community group has used it, is whether that offends those not-for-profit provisions — we're working through that.'   

Some of the nations top private schools charge fees of up to $40,000 a year, with many fee-paying parents unwilling to back the proposal.

However, Mr Stokes said the pay-off for private schools was in community goodwill when they wanted to expand.

'I know one of the challenges private schools have in developing their facilities have is that the surrounding communities can often object on the basis that they say, well we're getting the extra traffic, where is the benefit for us?, he said.

'By opening these facilities up and sharing them with the community, that means the community is much more likely to be open to expansion if there is a wider social benefit.'

Association of Independent Schools of NSW CEO Dr Geoff Newcombe said some schools have already made their facilities­ available and not all independent schools had 'lavish' facilities.

'On average, more than 90 per cent of the cost of capital works in independent schools is met by parents, fundraising and donations, with this figure at 100 per cent for most higher SES schools,' he said.

Instead, he said the notion that all private schools had lavish stereotypes was 'a stereotype' and noted that most school facilities were not markedly different to other schools nearby.

NSW P&C President Susie Boyd said she would welcome the change in private schools being opened up to public students, adding if private schools refused to open up to their community, they should be denied further funding.

The government's school infrastructure plan specifically looks at encouraging more joint-use projects, Mr Stokes said.

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