Transition Rules in Administrative Law - Revision history

Erasmuse: /* NOtes */

2021-03-17T03:10:46Z

‎NOtes

Rasmusen p1vaim: /* The Clery Act */

2021-03-10T15:41:41Z

‎The Clery Act

Rasmusen p1vaim: /* The Clery Act */

2021-03-10T15:40:02Z

‎The Clery Act

Rasmusen p1vaim: /* Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules? */

2021-03-10T15:36:03Z

‎Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules?

Rasmusen p1vaim: /* Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules? */

2021-03-10T15:35:10Z

‎Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules?

Rasmusen p1vaim: /* Caveat: Can the University Use Secret Witnesses Even under the Obama Rules? */

2021-03-10T15:30:42Z

‎Caveat: Can the University Use Secret Witnesses Even under the Obama Rules?

Rasmusen p1vaim: /* The Hypothetical */

2021-03-10T15:30:10Z

‎The Hypothetical

Rasmusen p1vaim: /* The Hypothetical */

2021-03-09T03:40:35Z

‎The Hypothetical

Rasmusen p1vaim: /* Title IX Law Generally */

2021-03-08T20:21:32Z

‎Title IX Law Generally

Rasmusen p1vaim: /* The Clery Act */

2021-03-08T20:20:06Z

‎The Clery Act

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 Can something else be inferred? The Clery Act provides students, and perhaps employees, with procedures that protect them against dismissal for allegations of severe Title IX offenses such as rape.  Can we infer that they are also protected against dismissal for allegations of mild Title IX offenses such as cold-calling girls more than boys? Otherwise, we get the absurd result that a university might choose to abandon the rape allegations against a professor and go after him for discriminatory cold-calling, since the same severe penalty could be inflicted more easily. It would be like the Supreme Court requiring serial murder defendants to be given special expert counsel and ample budgets for expert witnesses while allowing the county to administer the death penalty for jaywalking without any need for such procedural protections.
-==NOtes==
+* [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1536&context=yjreg "Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries,"] Nicholas R. Parrillo, Yale Law School,  ''YJREG''   36 (2019).
-Nothing here yet.
+------
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-I hate the way this is drafted. The Act is, on the surface, just about reporting requirements. It says the university must report it has certain policies. It doesn't say the university ust ''have'' those policies, or ''follow'' its policies if it does have them as policies,  just ''report'' them. That they must be truthful and must follow their own policies can be inferred, I guess, but I'd rather the regulation said it directly.
+The drafting of the Clery Act is deplorable. On the surface, the Clery Act is just about reporting requirements, requiring that the university must *report* it has certain policies. It doesn't say the university must ''have'' those policies, or ''follow'' its policies if it does have them as policies--- just ''report'' them. That universities must be truthful and must follow their own policies can be inferred, I guess, but I'd rather the regulation said it directly.
 Can something else be inferred? The Clery Act provides students, and perhaps employees, with procedures that protect them against dismissal for allegations of severe Title IX offenses such as rape.  Can we infer that they are also protected against dismissal for allegations of mild Title IX offenses such as cold-calling girls more than boys? Otherwise, we get the absurd result that a university might choose to abandon the rape allegations against a professor and go after him for discriminatory cold-calling, since the same severe penalty could be inflicted more easily. It would be like the Supreme Court requiring serial murder defendants to be given special expert counsel and ample budgets for expert witnesses while allowing the county to administer the death penalty for jaywalking without any need for such procedural protections.

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 == The Clery Act==
-Daniel Carter, an expert consultant on the Clery Act, brought it to to my attention.  It seems to be specific to the criminal varieties of "sexual misconduct", a term universities apply to a wide variety of behavior much  which wouldn't be called sexual misconduct in ordinary English, e. g., telling obscene jokes or discriminating against someone because of their sex.  Also, it might just apply to student rights; if janitors or professors are involved, then may not have any of these rights (Indiana University seems to have adopted that interpretation; its rules are different for students and for employees).   A lot of the Clery Act is about reporting requirements and notification requirements, but some of it seems to have procedural bite:
+Daniel Carter, an expert consultant on the Clery Act, broughtthis to to my attention. The Clery act seems to be specific to the criminal varieties of "sexual misconduct", a term universities apply to a wide variety of behavior much  which wouldn't be called sexual misconduct in ordinary English, e. g., telling obscene jokes or discriminating against someone because of their sex.  Also, it might just apply to student rights; if janitors or professors are involved, then may not have any of these rights (Indiana University seems to have adopted that interpretation; its rules are different for students and for employees).   A lot of the Clery Act is about reporting requirements and notification requirements, but some of it seems to have procedural bite:
 {{Quotation| The Clery Act requires institutions of higher education participating in student aid programs to adopt policies prohibiting '''sexual assault, dating violence, domestic violence, and stalking'''...
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 I hate the way this is drafted. The Act is, on the surface, just about reporting requirements. It says the university must report it has certain policies. It doesn't say the university ust ''have'' those policies, or ''follow'' its policies if it does have them as policies,  just ''report'' them. That they must be truthful and must follow their own policies can be inferred, I guess, but I'd rather the regulation said it directly.
-Can something else be inferred? The Clery Act provides students, and perhaps employees, with procedures that protect them against dismissal for allegations of severe Title IX offenses such as rape.  Can we infer that they are also protected against dismissal for allegations of mild Title IX offenses such as cold-calling girls more than boys? Otherwise, we get the absurd result that a university might choose to abandon the rape allegations against a professor and go after him for discriminatory cold-calling, since the same severe penalty could be inflicted more easily.
+Can something else be inferred? The Clery Act provides students, and perhaps employees, with procedures that protect them against dismissal for allegations of severe Title IX offenses such as rape.  Can we infer that they are also protected against dismissal for allegations of mild Title IX offenses such as cold-calling girls more than boys? Otherwise, we get the absurd result that a university might choose to abandon the rape allegations against a professor and go after him for discriminatory cold-calling, since the same severe penalty could be inflicted more easily. It would be like the Supreme Court requiring serial murder defendants to be given special expert counsel and ample budgets for expert witnesses while allowing the county to administer the death penalty for jaywalking without any need for such procedural protections.
 ==NOtes==
 Nothing here yet.
 ------

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 In 2017, the Dept  of Education rescinded the 2011 Dear Colleague Letter and issued [https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf interim guidance].  So the "Obama Rules" were actually not in force, at the federal level, in 2019, though individual universities such as Indiana did not change their rules, it seems, in response to the interim guidance. It is also important to note that the federal guidance seems never to have  *prohibited* universities from following due process; it only made due process optional for them, although the 2011 Obama letter did strongly encourage universities to prohibit questioning of the accuser.
-As explained below in a separate section, the 1990 [https://en.wikipedia.org/wiki/Clery_Act Clery Act] is also relevant. It gives procedural protections to those accused of sexual assault. It perhaps does not protect those accused of mere sexual discrimination, but under  that interpretation, a university would be free to drop allegations of sexual assault in favor of accusations of milder behavior in order to strip the accused of due process while ultimately inflicting equally harsh penalties.
+As explained below in a separate section, the 1990 [https://en.wikipedia.org/wiki/Clery_Act Clery Act] is also relevant. It gives procedural protections to those accused of sexual assault. It perhaps does not protect those accused of mere sexual discrimination, but under  that interpretation, a university would be free to drop allegations of sexual assault in favor of mild accusations of  inappropriate comments in order to strip the accused of due process while ultimately inflicting equally harsh penalties.
 ==Claimed Answers==

← Older revision		Revision as of 15:35, 10 March 2021
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	In 2017, the Dept of Education rescinded the 2011 Dear Colleague Letter and issued [https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf interim guidance]. So the "Obama Rules" were actually not in force, at the federal level, in 2019, though individual universities such as Indiana did not change their rules, it seems, in response to the interim guidance. It is also important to note that the federal guidance seems never to have prohibited universities from following due process; it only made due process optional for them, although the 2011 Obama letter did strongly encourage universities to prohibit questioning of the accuser.		In 2017, the Dept of Education rescinded the 2011 Dear Colleague Letter and issued [https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf interim guidance]. So the "Obama Rules" were actually not in force, at the federal level, in 2019, though individual universities such as Indiana did not change their rules, it seems, in response to the interim guidance. It is also important to note that the federal guidance seems never to have prohibited universities from following due process; it only made due process optional for them, although the 2011 Obama letter did strongly encourage universities to prohibit questioning of the accuser.
		+
		+	As explained below in a separate section, the 1990 [https://en.wikipedia.org/wiki/Clery_Act Clery Act] is also relevant. It gives procedural protections to those accused of sexual assault. It perhaps does not protect those accused of mere sexual discrimination, but under that interpretation, a university would be free to drop allegations of sexual assault in favor of accusations of milder behavior in order to strip the accused of due process while ultimately inflicting equally harsh penalties.

	==Claimed Answers==		==Claimed Answers==

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 Consider  the Title IX regulations on the question of whether a university has to allow a professor to know the names of  the witnesses against him and let him ask questions regarding alleged discrimination on the basis of sex. To be specific, suppose the allegation is that he cold-calls girls more than boys, and that this constitutes discrimination against girls.  The Obama Rules said  the university does not have to reveal the names of witnesses (or allow the professor to ask them questions, or allow him to see the interview transcripts, etc., but for simplicity let's be specific in the hypothetical).  In May 2020, [https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html the new Trump Rules] said that it did.  [https://www.thecrimson.com/article/2021/1/20/experts-on-title-ix-under-biden/ Very likely, there will be Biden Rules] soon that will again say it does not. Suppose that in 2019 the university starts investigating a professor for allegations of misconduct in 2018, but the investigation continues until 2023. Which rules must the university follow?
-==Caveat: Can the University Use Secret Witnesses Even under the Obama Rules?==
+==Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules?==
- It actually is unclear if even under the Obama Rules a university can conceal the names of the witnesses from the accused. And it is unclear whether the Obama Rules violate the U.S. Constitution.  In these notes, I am trying to focus on transition rules, but Title IX law is a murky subject even apart from that.
+It actually is unclear if even under the Obama Rules a university can conceal the names of the witnesses from the accused. And it is unclear whether the Obama Rules violate the U.S. Constitution.  In these notes, I am trying to focus on transition rules, but Title IX law is a murky subject even apart from that.
 In 2011 Obama issued the  [https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf Obama 2011 "Dear Colleague" letter], which followed from the January 2001 (Clinton) [https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf "Revised Sexual Harassment Guidance"];  my hypothetical is based on my own [https://policies.iu.edu/policies/ua-03-discrimination-harassment-and-sexual-misconduct/sm-archived-08142020-accessible.pdf Indiana University's  rules] supposedly based on those documents. I think any apparent discrepancy between them may be due to the fact that the university rules provide for two procedures, one for students and one for employees, and a student gets more due process protection than a professor or a janitor, and perhaps that letter is restricted to protections for students. In court, an obvious question is why a statute that prevents giving federal aid to institutions that discriminate by sex should have have different rules depending on whether the discriminator is a student or an employee.

← Older revision		Revision as of 03:40, 9 March 2021
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	March 5: I may be wrong about the Obama rules. I'm just now reading the [https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdfObama 2011 "Dear Colleague" letter], which followed from the January 2001 (Clinton) [https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf Revised Sexual Harassment Guidance]; what I wrote above was based on my own [https://policies.iu.edu/policies/ua-03-discrimination-harassment-and-sexual-misconduct/sm-archived-08142020-accessible.pdf Indiana University's rules] supposedly based on them. I think any apparent discrepancy between them may be due to the fact that the university rules provide for two procedures, one for students and one for employees, and a student gets more due process protection than a professor or a janitor, and perhaps that letter is restricted to protections for students. In court, an obvious question is why a statute that prevents giving federal aid to institutions that discriminate by sex should have have different rules depending on whether the discriminator is a student or an employee.		March 5: I may be wrong about the Obama rules. I'm just now reading the [https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdfObama 2011 "Dear Colleague" letter], which followed from the January 2001 (Clinton) [https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf Revised Sexual Harassment Guidance]; what I wrote above was based on my own [https://policies.iu.edu/policies/ua-03-discrimination-harassment-and-sexual-misconduct/sm-archived-08142020-accessible.pdf Indiana University's rules] supposedly based on them. I think any apparent discrepancy between them may be due to the fact that the university rules provide for two procedures, one for students and one for employees, and a student gets more due process protection than a professor or a janitor, and perhaps that letter is restricted to protections for students. In court, an obvious question is why a statute that prevents giving federal aid to institutions that discriminate by sex should have have different rules depending on whether the discriminator is a student or an employee.
		+
		+	March 8. This is indeed a strange area of law. In 2017, the Dept of Education rescinded the 2011 Dear Colleague Letter and issued [https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf interim guidance]. So the "Obama Rules" were actually not in force, at the federal level, in 2019, though individual universities such as Indiana did not change their rules, it seems, in response to the interim guidance. It is also important to note that the federal guidance did not require no due process; it only permitted it at one time. The Obama Rules did not prohibit cross examination, for example, but only advised against it.

	==Claimed Answers==		==Claimed Answers==

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 ==Title IX Law Generally==
-   There is considerable doubt that universities follow even the Obama rules. A good examples is [https://cases.justia.com/federal/appellate-courts/ca7/17-3565/17-3565-2019-06-28.pdf |John Doe v. Purdue], (7th Circuit, 2019, Barrett, J.). A student alleged (a) Section 1983 civil rights violation for lack of due process, and (b) Title IX violation for sex discrimination via lack of due process. He won on the motion to dismiss, on appeal.  In particular, the university did not do anything to let the adjudicator be able to judge credibility of the witnesses-- no cross-examination, and not even a quoted transcript, just a paraphrase by the investigator. The Court rules that unlawful. The student also had to plead a loss of a contract interest (for Section 1983) and that his mistreatment was because of his sex (for Title IX).  The Court ruled that he did.
+There is considerable doubt that universities follow even the Obama rules. A good examples is [https://cases.justia.com/federal/appellate-courts/ca7/17-3565/17-3565-2019-06-28.pdf |John Doe v. Purdue], (7th Circuit, 2019, Barrett, J.). A student alleged (a) Section 1983 civil rights violation for lack of due process, and (b) Title IX violation for sex discrimination via lack of due process. He won on the motion to dismiss, on appeal.  In particular, the university did not do anything to let the adjudicator be able to judge credibility of the witnesses-- no cross-examination, and not even a quoted transcript, just a paraphrase by the investigator. The Court rules that unlawful. The student also had to plead a loss of a contract interest (for Section 1983) and that his mistreatment was because of his sex (for Title IX).  The Court ruled that he did.
+On due process,  the Court  said:
 {{Quotation| To satisfy the Due Process Clause, “a hearing must be a real one, not a sham or pretense.” Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016) ...
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 John also faults Sermersheim for being in charge of both the investigation and adjudication of his case. We have held, however, that blending these two functions in the university context does not necessarily render a process unfair. Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 675 (7th Cir. 2016). To rebut the presumption that university administrators are  “honest and impartial,” a plaintiff must “lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable.” Id. This burden is “heavy indeed,” typically requiring evidence that “the adjudicator had a pecuniary interest in the outcome of the case, or that he was previously the target of the plaintiff’s abuse or criticism.”}}
 == The Clery Act==