Two today. First, from the WaPo, so you can expect the usual nay-saying, Betsy DeVos releases sexual assault rules she hails as balancing rights of victims, accused
Education Secretary Betsy DeVos on Friday released her long-awaited rewrite of rules governing campus sexual harassment and assault allegations, narrowing the cases schools must investigate and giving the accused more rights.Why not? The consequences of being kicked out of school are life alteringly serious. Why not at least give the accused the right to defend him (or rarely) herself?
The proposal came under immediate fire from women’s rights groups and Democrats, who said the rules would allow assailants and schools to escape responsibility for harassment and assault and would make college campuses less safe for women.
But others said the proposal restores balance in a system that had been skewed too far in favor of the accusers.
DeVos said she had worked to strike a balance while creating a more transparent and reliable process. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas,” she said.
Under the proposal, fewer allegations would be considered sexual harassment and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Schools could choose a higher legal standard for considering evidence.
The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct. They land at a time when the #MeToo movement brought increased public scrutiny and accountability to harassment and assault. This proposal, by contrast, pushes the pendulum in the reverse direction.
“I am dismayed with the Trump administration’s cruel proposal that will have the effect of putting power in the hands of abusers & dissuading survivors from coming forward,” John B. King Jr., who served as education secretary in the Obama administration, said on Twitter.
The most divisive aspect of the proposal may be allowing attorneys for the accused to cross-examine accusers. The proposed rule goes too far in incorporating legal concepts into a school disciplinary setting, argued Terry Hartle, a senior vice president at the American Council on Education, which represents university presidents.
“This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing,” he said. “We are not courts. I’m not sure we should try to act like courts.”
But advocates for the accused called this an essential change that could help counter inherent bias among college administrators who investigate incidents.But I think the neatest trick she pulled with this was making the schools choice of a standard of guilt up to the school, but would insist on a single standard being enforced across the institution, on students, professors and administrators alike.
“Cross-examination is the most effective method to get to the truth,” said Kimberly C. Lau, who leads the college discipline practice at the law firm Warshaw Burstein.
Schools would be allowed to choose the standard they will use between “preponderance of the evidence” or the higher bar of “clear and convincing evidence.” But a school may not use the lower standard if it relies on the higher one for allegations against employees, including faculty members.How many administrators would tolerate a system under which they could lose their cushy jobs because of an unsubstantiated allegation that they were not permitted to seriously defend against?
In addition, the regulation would require that the final determination in a case be made by someone who did not conduct the investigation, nullifying arrangements often used in which a single investigator does both.
And the next reason? Trump Endorses Criminal Justice Bill, Giving Momentum to Long-Delayed Reforms
At a White House event, Trump threw his weight behind the FIRST STEP Act, a bill that includes major reforms to the federal prison system, as well as four relatively modest provisions that would reduce some of the harshest mandatory minimum sentencing laws in the U.S. Code.The criminal justice is seriously out of whack. I doubt a single bill can seriously make a dent in the problems, but this looks like a good start. Attorney General Sessions was not the right man for this job. I hope Whitaker (or his replacement) will be.
"I'm thrilled to announce my support for this bipartisan bill that will make our communities safer and give second chances," Trump said. "We're all better off when former inmates can reenter society as law-abiding, productive citizens."
The House passed the FIRST STEP Act in May by a wide, bipartisan margin. The House version of the bill mainly addresses prison reforms and improves reentry programs and job training for federal inmates. Among other things, it would also ban the shackling of pregnant inmates, increase the amount of "good time" inmates can earn toward shortening their sentences, and expand the Bureau of Prisons' compassionate release program for terminally ill inmates.
On Monday, the draft text of the long-awaited Senate version of the FIRST STEP Act leaked. The Senate version will include several provisions that were originally part of a bipartisan sentencing reform bill hammered out between Senate Judiciary Committee Chairman Sen. Chuck Grassley (R–Iowa) and Sen. Dick Durbin (D–Ill.). Those provisions would eliminate mandatory life sentences for drug offenses under a federal "three strikes" law, reduce the "stacking" of firearm penalties for certain crimes (like the kind that led to a 55-year sentence for Weldon Angelos), expand the so-called "safety valve" to give judges more discretion in sentencing, and retroactively apply the Fair Sentencing Act of 2010's penalty reductions to crack-cocaine offenders sentenced before the law was passed.
The last provision could affect thousands of federal drug offenders who received long mandatory minimum sentences under the now-reduced 100:1 sentencing disparity between powder and crack cocaine offenses.
"Trump is on his way to becoming the uniter-in-chief on an issue that has long divided the nation," Van Jones, a former Obama administration official and co-founder of #cut50, a criminal justice advocacy group, said in a statement. "We applaud President Trump for supporting the FIRST STEP Act. I am so glad to see him join a growing bipartisan movement that spans racial lines, geographic divides, class, and political party in support of policies that promote public safety, rehabilitation, and fairness."
Senate Majority Leader Mitch McConnell (R–Ky.) previously pledged to bring the bill to the Senate floor if it became apparent it had at least 60 votes. A whip count is expected this week to gauge support for the bill.
Linked at Pirate's Cove in the weekly Sorta Blogless Sunday Pinup and links.