Patterico's Pontifications

10/1/2020

California Seeks to Undermine Education Department’s Title IX Rules

Filed under: General — JVW @ 2:45 pm



[guest post by JVW]

Just this past spring we were congratulating Secretary of Education Betsy DeVos for finally bringing to heel the Obama Administration’s notorious “Dear Colleague” letter which had helped set in motion a campus sexual assault hysteria resulting in controversial sanctions and expulsions, mostly of young men. I suppose we should have realized that this would not be allowed to stand in hyper-woke California, and yesterday Governor Gavin Newsom signed a bill authored by state Senator Hannah-Beth Jackson of Santa Barbara which reimposed on state universities much of the kangaroo court nonsense that Secretary DeVos had hoped to quell.

The overview and the summary of the bill appear on face value to be fairly innocuous, covering just requirements that state colleges have a point person for harassment claims, that they have established rules for a disciplinary process, that various administrators receive training, etc., but buried within Section 3 of the law are a few nuggets making it clear that California should return to the Obama-Era regulations:

Section 3, article IV, subsection 3, item C, part i
Regardless of whether or not a complaint has been filed under the institution’s grievance procedures, if the institution knows, or reasonably should know, about possible sexual harassment involving individuals subject to the institution’s policies at the time, the institution shall promptly investigate to determine whether the alleged conduct more likely than not occurred, or otherwise respond if the institution determines that an investigation is not required. If the institution determines that the alleged conduct more likely than not occurred, it shall immediately take reasonable steps to end the harassment, address the hostile environment, if one has been created, prevent its recurrence, and address its effects. [. . .]

In other words, as in the case of the USC football player and his girlfriend, a campus should investigate and punish an accuser on their own volition, even if the “victim” denies she has been harassed or assaulted.

Section 3, article IV, subsection 3, item C, part ii
The institution shall consider and respond to requests for accommodations relating to prior incidents of sexual harassment that could contribute to a hostile educational environment or otherwise interfere with a student’s access to education where both individuals are, at the time of the request, subject to the institution’s policies.

If I am not mistaken, this could mean that Mary sees John at freshman orientation, reports to the administration that he got fresh with her at a high school party back when they were both 15, and the university would be required to investigate and perhaps adjudicate if Mary asserts that John’s presence on campus interferes with her ability to receive an education. Never mind that this happened in the past and away from campus; under this rule it is germane if one party claims a present impact.

Section 3, article IV, subsection 3, item d, part i
If a complainant requests confidentiality, which could preclude a meaningful investigation or potential discipline of the potential respondent, or that no investigation or disciplinary action be pursued to address alleged sexual harassment, the institution shall take the request seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students, including for the complainant. The institution shall generally grant the request. [. . .]

The law then tries to outline how confidentiality requests would be granted, and to what degree that would impact the rights of the accused. But the reality of the situation is that they are creating a scenario in which the accused would have to respond to generic complaints without knowing any details which might divulge the identity of the complainant: “At any time during a party in the past three months did you place your hand on a female in a manner which she might have found harassing?” This is even worse for faculty or staff, or anyone else who is considered to enjoy a “power imbalance” over the complainant (campus advocacy groups have defined a power imbalance in such as broad fashion as to include a senior in a relationship with a freshman). And the new law states that the school can still judge a respondent guilty and subject to sanctions while maintaining complainant confidentiality, provided the institution can “conduct a thorough investigation and obtain relevant evidence.” While that seems to be a common-sense protection, past experience suggests that a broad definition of “thorough” and “relevant evidence” will allow the institution to make a great deal of mischief in pursuit of social justice.

And what would a California law these days be without a whole lot of stupid wishful thinking?

Section 3, article IV, subsection 4, item A, part i
[The published grievance procedures] shall state that the investigation and adjudication of alleged misconduct under this section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.

I’m sure it will mean a great deal to the 19-year-old kid facing expulsion and being sent back home to Buttscratch where he’ll spend the rest of his life working on the road crew to know that the process isn’t meant to be adversarial. This section then goes on to inform the parties that although there shall be a process of investigation which consists of collecting evidence and/or witnesses, if some evidence and/or witnesses emerge after the hearing begins they may not necessarily be considered. But don’t worry: this law establishes that “the persons or entities responsible for conducting investigations, finding facts, and making disciplinary decisions are neutral.” Because I guess if there is one thing that college administrators and faculty are known for in 2020 it is being scrupulously neutral.

And how about the ability of the accused to cross-examine the accuser? Forget about it, unless you think that this bare fig-leaf is adequate [bolded emphasis added by me]:

Student parties shall have the opportunity to submit written questions to the hearing officer in advance of the hearing. At the hearing, the other party shall have an opportunity to note an objection to the questions posed. The institution may limit such objections to written form, and neither the hearing officer nor the institution are obligated to respond, other than to include any objection in the record. The hearing officer shall have the authority and obligation to discard or rephrase any question that the hearing officer deems to be repetitive, irrelevant, or harassing. In making these determinations, the hearing officer is not bound by, but may take guidance from, the formal rules of evidence.

To hell with those pesky “formal rules of evidence” if they make it easier for the accused to slip the noose, I suppose. And this naturally leads us back to the “preponderance of evidence” standard the Obama Administration imposed, meaning that the accused can be found guilty if the tribunal determines that it is slightly more likely than unlikely that he is guilty, discarding the Trump Administration’s “clear and convincing evidence” standard. In a very close case with lots of ambiguity, how many times do you think that college administrators are going to find the accused 51% likely of a Title IX violation as opposed to 49% likely?

If you doubt that this legislation isn’t simply a clear attempt to rally the social justice left against Secretary DeVos and the Trump Administration, check out the press release that Sen. Jackson’s office coughed up after Governor Newsom signed the bill. Never mind educational institutions’ heavily checkered record in handling such matters; never mind the atmosphere of hostility that surrounds young men (who are after all the minority: 53% of UC students and 57% of Cal State students are female) on campuses these days thanks to the ugly monoculture that has been allowed to infest higher education. There are scores to be settled, and nothing is going to stop the crybullies from pursuing their agenda.

– JVW

39 Responses to “California Seeks to Undermine Education Department’s Title IX Rules”

  1. Our one party state strikes again!

    JVW (ee64e4)

  2. Uh… the Feds can withdraw federal funds for this. That’s what the Obama administration “threatened” when they issued that “Dear Colleagues” letter to begin with.

    Although, it’ll be litigated to the nth degree.

    Jeez, what a mess!

    whembly (c30c83)

  3. This stuff is really fun. I got called into HR not that long ago for an interview. The questions were so vague as to be nonsense, i.e. “have you encountered anything at work recently that could be considered offensive.” To which I replied with equally vague questions as answers, i.e. “offensive to me or to some of my team members who can get upset about the implications of whether you like bread toasted”. It wasn’t even clear whether I was under investigation or someone else. There was no time frame given or context.

    It took a lot of prying to find out it was even a related to politics. Turns out someone said something that someone else thought might offend me and they turned in the other person. I had to violate more rules finding that out than were violated by the original complaint.

    frosty (f27e97)

  4. @ 1

    Don’t worry. Vice President Kamala Edith Wilson Harris will soon try to make the nation like California. I mean the policies there have worked so well, that why not extend them to the other 49 states?

    Bored Lawyer (7b72ec)

  5. “have you encountered anything at work recently that could be considered offensive.”

    * Bad coffee.
    * Printer running out of toner.
    * Fire drills when you are trying to talk to a client.

    Yeah, those are all really offensive to me.

    Bored Lawyer (7b72ec)

  6. So, I had a co-worker who would wear a blue Mao cap to work, complete with red star. I had another who wore a belt with Obama’s picture on the buckle. Pretty sure both would have found a MAGA cap offensive.

    Kevin M (ab1c11)

  7. It would seem that CA is planning on the Biden Administration going back to the old rules, or at least not challenging them when they do it locally.

    Sadly for them, various federal circuits seem to view the lack of due process as a problem. And those are, for a time at least, beyond the reach of Biden or Harris. Even the 9th Circuit is pretty balanced these days.

    Kevin M (ab1c11)

  8. You’re really being silly. To qualify as harassment, the conduct in question must be (among other things) unwelcome.

    And if the universities do not investigate every potential case of harassment that a responsible employee learns about, and take action when appropriate, there is case law on the books that says they (meaning the taxpayers) are on the hook for seven- or eight-figure liability.

    Trying to pretend these cases have any similarities to criminal prosecutions is guaranteed to lead to confusion and misunderstanding.

    If it is more likely than not that harassment occurred, that means it is more likely than not that the victim is being wrongfully denied the benefits of the institution.

    A high burden of proof is appropriate when an individual is facing the power of the state. But here we are balancing the rights of two individuals. Favoring one over the other is just wrong.

    Favoring the accuser is of course also wrong, and I think it is here (if judgments are reached that are not supported by the preponderance of the evidence) that reform and oversight should be directed, instead of setting out to make the rules themselves biased against the victims.

    Dave (1bb933)

  9. If it is more likely than not that harassment occurred, that means it is more likely than not that the victim is being wrongfully denied the benefits of the institution.

    If it is wrongly decided, or the process is flawed, the accused might well be denied the benefits of ANY institution.

    Kevin M (ab1c11)

  10. Once Biden is president we won’t have to worry about this stuff. Biden’s DoE will ensure colleges and universities will have full investigative and prosecutorial authority. And, as a way to create jobs, Biden will provide funds to institutions of higher learning to build their own jails.

    Hoi Polloi (dc4124)

  11. But here we are balancing the rights of two individuals. Favoring one over the other is just wrong.

    I get robbed and beaten by one guy. He is hauled into court. The court is balancing the rights of two individuals–the victim (me) and the accused. Is requiring proof beyond a reasonable doubt favoring the accused, and therefore wrong?

    norcal (a5428a)

  12. @8 — the problem is not the burden of proof, it is the process by which universities arrive at the conclusion that it is more likely than not harassment occurred. Most civil cases use the preponderance standard, but civil courts require due process, include cross-examining one’s accuser, and a fair and impartial trier of fact, before they decide that one side is liable to the other.

    Bored Lawyer (7b72ec)

  13. @11

    Actually, in a criminal case, the court is balancing the right of the accused against the right of society as a whole, as represented by the State. Because the state historically abused its powers, criminal cases have many more built in protections, including the “beyond a reasonable doubt,” standard, that civil cases do not.

    Bored Lawyer (7b72ec)

  14. @13 Thank you for the correction. It makes sense to me now.

    norcal (a5428a)

  15. Dave,

    I apologize for countering your statement.

    norcal (a5428a)

  16. A high burden of proof is appropriate when an individual is facing the power of the state. But here we are balancing the rights of two individuals. Favoring one over the other is just wrong.

    How would you and your colleagues react if a tenured professor at your institution was hauled in front of one of these tribunals, told that because more than one student had raised accusations against him or her that the accusers would therefore remain anonymous, asked a series of vague questions that are alleged to be used to gather “evidence,” then ultimately told that the panel had decided the professor was likely at least 51% likely to be guilty, and summarily dismissed. None of that seems to be out of the question under this new law. I mean, it’s not as if that professor is facing criminal charges, right, and he or she can always just go get a job at some other institution. And hey, unlike the student who misses out on his or her prime college years while appealing this, a faculty member could be given their job back with back pay should the decision be overruled, so no real harm would be done in the end. I’m sure your faculty union would understand that this is all necessary to ensure that the campus is a welcoming place for all students, and that favoring a respondent over a complainant would be “just wrong.”

    But hey, I’m just being silly by suggesting such an outlandish scenario that could never really happen, right?

    JVW (ee64e4)

  17. Wow what a horrible apocalyptic scenario you have laid out JVW. The poor young men of USC have no idea what’s coming to them.

    Leviticus (716bda)

  18. Poor young men, facing all that hostility that young men face in this country. Especially USC men.

    Leviticus (716bda)

  19. Poor young men, facing all that hostility that young men face in this country. Especially USC men.

    I know you are being sarcastic, but you do realize that USC is a private school and thus not subject to the state’s mandate, right? And maybe in the grand scheme of things you have a valid point and a grumpy old bastard like me ought not care what fate befalls a bunch of Millennial snowflakes when they reach a UC or CSU campus. But, crazy ol’ me, I don’t like to see the system set up so that anyone is easily railroaded due to cheap political pandering. I’m kind of weird that way, I suppose.

    JVW (ee64e4)

  20. Leviticus might come around, JVW, after he actually reads your fine post.

    beer ‘n pretzels (0b60f3)

  21. When USC football players are your examples, one might suspext that your sympathies lie with the USC-football-player set.

    Leviticus (716bda)

  22. @21 It is common for female college students to be attracted to football players. They’re big, tall, and strong. The better ones have the potential to earn significant money playing professional football. Situations arise where a woman can feel scorned, and decide to seek vengeance by claiming sexual abuse. This new law will exacerbate the problem.

    norcal (a5428a)

  23. Yeah, well, in my final years as a teacher, I was called into the principal’s office and accused of showing my student’s pornography.

    What??! It was a King Arthur movie. It was in the curriculum guide, which I followed. It was in my lesson plans, which I submitted. It was in the school library, from which I checked it out.

    Now, the legend of King Arthur is adulterous, as are all romances (Helen did have an affair with Paris, after all.) But there was absolutely nothing graphic in this movie, otherwise it wouldn’t have been approved by the school board and included in the curriculum guide.

    Then I was asked about my “girlfriend.” As if I was having an affair with one of my teenage female students.

    What???! I hadn’t even been on a date with any woman for over two years, and I had been celibate for ten. My father was dying of cancer. He was in and out of the hospital, extensive care, on and off a respirator, when he was home he was bedridden. I was doing everything I could to help my mother take care of our family, every morning, every lunch break, every evening.

    But now I’m accused of being a pornographer and child abuser? Because I checked out a King Arthur movie from the school library, according to the curriculum guide written by the school board.

    I should have sued, and I would have won. I could have subpoenaed every principal, assistant principal, every English teacher, librarian, and school board member since this movie was included and approved in the curriculum guide.

    It would have been ugly, and I would have won. I can’t even list the charges I could have filed.

    Instead, I decided to retire. Go into real estate to help my mother, as I explained in my letter to the superintendent. I could have caused a lot of problems, but I took the easy way out. I just walked away, never to return.

    I wouldn’t go back to teaching these days, even if I could. And I have two bachelor’s degrees, a master’s degree, and a lifetime teaching certificate valid in 38 states and 14 foreign countries.

    All I ever did was endeavor to teach my students essential skills–thinking, reading, writing. And for all that, I’m accused of being a pornographer and child molester?

    It’s not worth it. Teaching, I mean.

    Gawain's Ghost (b25cd1)

  24. When USC football players are your examples, one might suspext that your sympathies lie with the USC-football-player set.

    Did you read the blog post at the link there, Leviticus? How do you feel about the fact that a guy — whether or not he was a member of the USC football team — gets accused by a third-party of assaulting his girlfriend, the girlfriend denies that the assault took place, and there is some question as to whether the accuser might have a personal interest in seeing this football player brought low, yet the kangaroo court still investigates the “incident,” determines it happened and that the girlfriend is simply in denial, then expels the football player? Look, if you hate USC or you hate football players then that’s your own thing and it’s none of my business, but don’t go telling me that this is in any way a fair and just process that this kid was put through.

    JVW (ee64e4)

  25. Gawain’s Ghost,

    I love your stories.

    Perhaps, like Nic, you will appreciate some stories from my mother’s teaching days. Here is the latest one I heard from her. This took place in either junior high or high school. (She taught both, and I forget the details.)

    One day, a male student suddenly said, “Why do they let somebody old and senile like you be a teacher?” The class laughed. My mother replied, “Well, somebody has to teach the mentally retarded.” The class roared!

    My mother never got in trouble for things like this. Rather, she became a legend. In fact, when she retired, students from the high school returned to the junior high to attend her retirement gathering.

    norcal (a5428a)

  26. JVW,

    Would you be kind, and emancipate my comment that is in moderation?

    [Done. – JVW]

    norcal (a5428a)

  27. OT- BREAKING: NBC NEWS REPORTS PRESIDENT TRUMP & FIRST LADY TEST POSITIVE FOR COVID-19.

    DCSCA (797bc0)

  28. @27. You beat me to it.

    Read more here:

    Trump tests positive for COVID-19 after his adviser and confidant Hope Hicks tested positive for the coronavirus

    Just when you thought 2020 could not get more weird.

    Bored Lawyer (7b72ec)

  29. Would you be kind, and emancipate my comment that is in moderation?

    [Done. – JVW]

    That was the Emancipation Moderation.

    Bored Lawyer (7b72ec)

  30. @25 Norcal, your mother sounds a lot like my high school English teacher, Mrs. Harwell. I hated her.

    Back then, in the early 1970s, parents registered their children in courses. Mrs. Harwell was a highly respected teacher, and my parents enrolled me in her class every semester, for four years.

    Problem was, on the first day of class freshman year, she picked me out of a crowd and said to herself, “I’m going to make an example of this boy to keep the others in line.”

    She was a very strict teacher. No one was ever tardy to her class. No one turned in their homework late. No one. Because the last thing anyone wanted was to have Mrs. Harwell call their parents. That would have been certain death, like grounded for life.

    We had to take daily spelling quizzes and weekly vocabulary tests, along with sentence diagramming, reading and writing assignments. The thing was that every time I didn’t make a 100, she would call me out and humiliate me in front of the class.

    I went to my parents and said, “I want out of this class. The teacher hates me.” Why do you think she hate you? “Because every time I don’t make a 100, she humiliates me.” And my father said, “Well, then, make a 100.”

    It was absolute torture for four years. I had to do more homework for Mrs. Harwell’s class than I had to do for every other class combined!

    Years later I took a senior level grammar course at UT. I never opened the textbook, didn’t study for a minute, took every quiz and test blind. And I was 1 of only 3 students who made an A, out of a class of 45.

    That was when I realized and admitted to myself that Mrs. Harwell, who I hated, was the best teacher I ever had.

    Someone like her could not possibly teach today. When I became a teacher, I tried to follow in her footsteps. Grammar, logic, rhetoric, the Trivium, that’s what I tried to teach my students.

    And I get called in to the principal’s office for following the curriculum guide, writing a lesson plan and checking out a video from the school library. And now suddenly I’m a pornographer and a child molester?

    It’s ridiculous. I should have sued. I would have won. Instead, I just resigned and walked away.

    I miss teaching though. Working with kids is a lot easier than working with adults. Kids actually want to learn; they pay attention; they listen; and they’re funny. Adults not so much. They do not want to learn; they do not pay attention; they do not listen; and they’re boring.

    Such is the state of politics in America.

    Gawain's Ghost (b25cd1)

  31. @29 Good one!

    norcal (a5428a)

  32. @30 I think I’ve said this before, but you should write an autobiography, or at least some autobiographical stories. You are so entertaining. I still remember your Dallas Cowboys tale.

    norcal (a5428a)

  33. How would you and your colleagues react if a tenured professor at your institution was hauled in front of one of these tribunals, told that because more than one student had raised accusations against him or her that the accusers would therefore remain anonymous, asked a series of vague questions that are alleged to be used to gather “evidence,” then ultimately told that the panel had decided the professor was likely at least 51% likely to be guilty, and summarily dismissed.

    The courts have said the university needs to examine such charges and take appropriate action when there is evidence of sexual harassment. If the university determines it is more likely than not that a professor sexually harassed a student, the professor should be disciplined or fired. It’s the only reasonable outcome, AFAIC.

    None of that seems to be out of the question under this new law. I mean, it’s not as if that professor is facing criminal charges, right, and he or she can always just go get a job at some other institution. And hey, unlike the student who misses out on his or her prime college years while appealing this, a faculty member could be given their job back with back pay should the decision be overruled, so no real harm would be done in the end. I’m sure your faculty union would understand that this is all necessary to ensure that the campus is a welcoming place for all students, and that favoring a respondent over a complainant would be “just wrong.”

    Faculty are considered supervisors; we don’t have a “union”. But otherwise, yes.

    I’ll say it again: if a university determines it is more likely than not a faculty member sexually harassed a student, the faculty member should be disciplined or fired.

    The idea of looking the other way and keeping someone around when you believe they have done something like that is nuts.

    If someone is unjustly accused and wrongly disciplined as a result, it’s the fault of the people who reached the erroneous conclusions. Ditto when a victim’s suffering is compounded and someone truly guilty gets away with abusing them.

    Dave (1bb933)

  34. Kangaroo courts return to colleges… simple fix:
    1. Cut off all fed funding to those that engage in this
    2. To the accused – SUE THE PANTS OFF OF THEM!

    HMCS(FMF) ret (b35bcd)

  35. Kangaroo courts, propositions on amending the state constitution allowing discrimination, adding diversity quotas to corporate boardrooms, reparations for slavery……..

    CA is also undergoing a pandemic of stupid.
    _

    harkin (902cc1)

  36. “ A University of California-Los Angeles “Training in Mindfulness Facilitation” program originally had a requirement specifically for “white-identified” participants, requiring them to take special “Racial Awareness Training.” After Campus Reform contacted the university, however, the original phrasing was scrubbed from the page and replaced…..

    ….. In addition to general prerequisites, such as prior classes or experience in mindfulness, the website originally listed an additional requirement: “White-identified participants must either have been previously educated in undoing racism or other structural oppression work or agree to participate in this work before our second practicum in April, 2021.”……

    ……… In a document, titled “Racial Awareness Training Requirement,” the program directors elaborated further on this requirement saying, “We are requesting that all white-identified participants have been previously educated in or are actively engaging in undoing racism or other structural oppression awareness work.”……

    ……. According to the initial wording of the policy, if applicants had not already completed such training, they would have to take such courses on their own dime.

    “Upon acceptance, if you need to fulfill this learning requirement, you will be sent a list of possible racial awareness training programs to participate in remotely,” the document originally explained. “Please note that an introductory program is fine and we request a minimum of 10 hours. We will include financially accessible options.””

    [Not only violating civil rights, but charging for it]

    https://campusreform.org/?ID=15814
    __ _

    Constant vigilance etc…..
    _

    harkin (902cc1)

  37. They want more of this, vote biden

    Bolivar di griz (7404b5)

  38. @25 She never would’ve gotten away with it today.

    I cannot tell you how many calls I field from parents after a teacher says something like “You guys are acting dumb/stupid/foolish” about how that teacher has called their child dumb/stupid/a fool. We have parent meeting trainings for new teachers about how they need to state the behavior that the child was doing, not call it silly/defiant/uncooperative/lying because if you call it that, the parent will get offended.

    Nic (896fdf)

  39. Parents are the number one problem with education. Wouldn’t you agree?

    norcal (a5428a)

Leave a Reply

Comment moderation is enabled. Your comment may take some time to appear.


Powered by WordPress.

Page loaded in: 0.3483 secs.