[RD] Brown says “No” (for now) to Obama’s “Yes Means Yes”

[BvBPL]

The Obama administration expanded the scope of Title IX, the US’s sexual equality in higher education law, touching upon when consent to sex occurs and what evidentiary standard should be used in adjudicating allegations of sexual assault. Obama-era guidelines effectively meant that students in higher education would have to seek affirmative consent with each sexual encounter, and that a lack of affirmative of affirmative consent meant there was effectively no consent. This meant one could not presume silence to be consent to sexual activity. It also dictated a preponderance of the evidence evidentiary standard (the same used in civil court, contrast with criminal’s “beyond a reasonable doubt” or a more intermediary “clear and convincing evidence”). This change did not directly touch on imposing criminal liability, but instead focused on expulsion as the primary enforcement mechanism.

Federally, the Obama rule has gone by the wayside thanks to Pres. Trump and Sec. DeVos. That wouldn’t stop states from adopting the Obama-era standard, and California seemed primed to go ahead with enforcing the Obama standard. However, when the bill to implement the affirmative consent standard came across his desk, Gov. Brown (D) vetoed the bill.

Brown, who had previously supported the bill, stated he could not support the bill because of a lack of scholarship around the effect of California’s existing (strict) higher education sexual assault law. California law does impose an affirmative consent standard, but Brown expressed concern that there was no information on how the current California higher education consent law, signed in 2014, affects students. He stated he could not, at this time, support the bill without more information on the effect of the current law. Of particular interest, Brown stated it was unknown if the current California law had an undue effect upon minority populations.

Actions in haste lead to repentance in leisure, and this is certainly true of laws and the legislature. Our lawmakers must be diligent in examining all aspects of a bill prior to making it a law, and that includes, as here, the effect of prior related laws. Gov. Brown deserve praise for attempting to take a more considered view of the long term effects of the laws to which he places his pen.

 

[Ryika]

The right decision for the right reasons.

It's one of those cases where some people want to take 5 steps at a time without looking at the effects of each of those steps because they're convinced that they're doing the right thing.

 

[Camikaze]

This change did not directly touch on imposing criminal liability, but instead focused on expulsion as the primary enforcement mechanism.

To me, this is the crazy part - a quasi-legal framework applying to students in particular, with drastic consequences and limited protections. The idea seems to be that we know we wouldn't get away with this sort of change to the criminal law, so instead we'll find some round about way to implement punishments without having to meet the same standards.

 

[Zkribbler]

... so instead we'll find some round about way to implement punishments without having to meet the same standards.

It's long been the law that rape and sexual assault can be pursued in a civil action for discrimination. Universities cannot bring criminal actions, but they can bring a civil action for sexual discrimination.

What about the other part of the law? Do you think co-eds who are unconscious, drunk, drugged out, or paralyzed with fear should be deem to have consented to sex?

 

[warpus]

Obama-era guidelines effectively meant that students in higher education would have to seek affirmative consent with each sexual encounter, and that a lack of affirmative of affirmative consent meant there was effectively no consent.

Not that I agree with anything Trump has ever done, but this seems out of touch with reality. Surely a much more realistic middle-ground is possible.

 

[Camikaze]

The point of a civil action is to provide redress for the victim/plaintiff. An action involving the government applying a penalty is criminal (or quasi-criminal). Unless we're going to pretend that the university is the victim here (presumably because its reputation is tarnished by being in a contractual relationship with a sex offender), expulsion on the basis of the civil standard is the long-arm of the government applying penalties without the protection of criminal procedure. (I would also note that in the civil context presumably you have some sort of Briginshaw equivalent, whereby the civil standard converges towards the criminal standard with more serious claims - the argument against that in the case of civil suits surrounding sexual assault is more convincing).

My main beef is with the bizarre regulatory behaviour of US universities. It's as crazy to me as the government telling restaurants that they're not allowed to serve felons, on pain of the health inspector revoking their licence to operate. The result is a weird situation in which the US discussion around sexual assault centres on the proposition that universities aren't doing enough to stop it, as if it's not an entirely criminal matter, or as if universities are meant to be an extension of the police rather than academic institutions.

What about the other part of the law? Do you think co-eds who are unconscious, drunk, drugged out, or paralyzed with fear should be deem to have consented to sex?

Was that genuinely not already part of the criminal law (and a clear factor speaking to the balance of probabilities in a civil suit)?

 

[Zkribbler]

My main beef is with the bizarre regulatory behaviour of US universities. It's as crazy to me as the government telling restaurants that they're not allowed to serve felons, on pain of the health inspector revoking their licence to operate. The result is a weird situation in which the US discussion around sexual assault centres on the proposition that universities aren't doing enough to stop it, as if it's not an entirely criminal matter, or as if universities are meant to be an extension of the police rather than academic

So, your problem is with Title IX itself: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

 

[caketastydelish]

they should come up with a "maybe means maybe"

edit: the parents of children aged 3-9 or so would really appreciate it.

 

[Camikaze]

So, your problem is with Title IX itself: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

No, it's the stretch to squeeze quasi-criminal sanctions out of that language. The failure of a university to apply penalties to someone on behalf of the government, using a watered down civil standard, cannot on any reasonable interpretation of that language amount to institutional discrimination. As I understand the argument, it is that universities are deemed by the government to not be doing enough to provide a discrimination-free environment, by their failure to expel students on the basis of unproven accusations (note: not false accusations). By the same logic, universities are presumably not doing enough to provide a discrimination-free environment if they fail to expel students on the basis of unproven accusations of hate speech. Or an alternative analogy would be universities not receiving funding because they didn't penalise the speech of those supporting the maintenance of Confederate monuments; a vice which the government could not directly target, but that it would be attempting to get universities to directly target (the difference in the analogy being the government cannot impose any penalty, but it would be getting universities to implement some penalty, as opposed to a situation in which the government must abide by criminal procedural safeguards, but is getting universities to apply penalties whilst ignoring those safeguards).

I will grant that one cultural difference that might account for me looking at this askance is the babying of university students in the US. Universities seem to be regarded by American society as foster parents in the final years of a student's childhood, rather than commercial enterprises into which adults enter expensive transactions. Hence the restaurant analogy; it's naturally bizarre to consider the government attempting to achieve its policing objectives by co-opting chefs into its enforcement strategy. You do not pay money and enter onto commercial premises on the basis that you may be kicked out following some sort of star chamber proceeding. Even a community or strata scheme wouldn't have that sort of power, and I can't really see how a university has more interest in the non-academic lives of their students than a landlord has in the private lives of their tenants. The flip side of that approach is that I'm perfectly fine with universities individually deciding to take a hard line as a matter of contract, whereby they can cease to provide services on the basis of accusations proven at less than the criminal standard. Of course, if they were to act unfairly in such a situation, you might expect reasonable consumer protections to come into play, and it's difficult to see how it would be appropriate for the terms of the service contract to venture into the non-academic lives of students. But in any case, this whole discussion plays out a lot differently under the service provider-customer paradigm than it does under the glorified high school paradigm.

I suppose it's ultimately a product of the US' constitutional dysfunction, and Chevron certainly doesn't help. I can sympathise with the desire to abandon principle in favour of pragmatism, but I don't endorse it.

 

[Lexicus]

I will grant that one cultural difference that might account for me looking at this askance is the babying of university students in the US. Universities seem to be regarded by American society as foster parents in the final years of a student's childhood, rather than commercial enterprises into which adults enter expensive transactions. Hence the restaurant analogy; it's naturally bizarre to consider the government attempting to achieve its policing objectives by co-opting chefs into its enforcement strategy. You do not pay money and enter onto commercial premises on the basis that you may be kicked out following some sort of star chamber proceeding. Even a community or strata scheme wouldn't have that sort of power, and I can't really see how a university has more interest in the non-academic lives of their students than a landlord has in the private lives of their tenants. The flip side of that approach is that I'm perfectly fine with universities individually deciding to take a hard line as a matter of contract, whereby they can cease to provide services on the basis of accusations proven at less than the criminal standard. Of course, if they were to act unfairly in such a situation, you might expect reasonable consumer protections to come into play, and it's difficult to see how it would be appropriate for the terms of the service contract to venture into the non-academic lives of students. But in any case, this whole discussion plays out a lot differently under the service provider-customer paradigm than it does under the glorified high school paradigm.

This is a very strange line of argument. It's precisely the commercialization of higher education - the view that students at universities ought to be treated as customers, rather than as students - that has led to this 'babying' you talk about, at least that's how it looks to me. Legally speaking, of course, the doctrine of in loco parentis went by the wayside decades ago, replaced with a contractual vision in theory very much like the one you've laid out here. The babying has been a consequence of that, because while a student can be told to grow up a customer's every whim must be satisfied.