OCR to Frostburg State University: Common Sense, 'Reasonable Person' Standard Violate Title IX

The agency has declared war on reason itself (the principle, not the magazine).

Gennadiy Kravchenko | 123rf

Universities should not rely upon outdated standards of justice like "common sense" and "reason" when determining whether sexual harassment has occurred, the Education Department's Office for Civil Rights has announced.

Seriously.

OCR recently sent a letter to Frostburg State University detailing the inadequacies of the university's sexual harassment policies. Frostburg is one of more than a hundred schools being investigated by OCR for violating Title IX, the federal law that requires sex equality in federal funding for education. OCR settles these investigations by advising schools to adopt a variety of policies that violate the due process and free speech rights of students and professors.

The Frostburg letter contains something I haven't seen before: a stark admission from OCR that its interpretation of Title IX holds the "reasonable person" standard in contempt. From page 7 of the letter:

… the Sexual Harassment Policy inappropriately stated that "in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail. The standard shall be the perspective of a reasonable person within the campus community." This standard falls short of the preponderance of the evidence standard required to satisfy Title IX.

In holding "common sense, "reason," and "reasonable persons" in contempt, OCR is effectively saying that colleges should base their decisions on the perspective of an unreasonable person. That's what is required to produce the agency's desired result: unreasonable people using something other than common sense.

The Competitive Enterprise Institute's Hans Bader tells me via email that this declaration is at odds with court precedent.

"Never mind that the Supreme Court's decision in Harris v. Forklift Systems (1993) uses a 'reasonable person' test, and the Eleventh Circuit in Watkins v. Bowden said the test is valid," Bader writes.

I have long criticized OCR's Title IX guidance for eroding individual liberty, but never before has it been so apparent that the agency's ultimate goal is to destroy reason itself.

Comments

[Citizen X]

Oh Robby. Decent alt text, but then it somehow ends up copied at the beginning of the article? I literally can't even.

[Wizard with a Woodchipper]

Plato was all like...for censorship.

[Diane Reynolds (Paul.)]

By the way, the Office of Civil Rights falls under the executive, does it not?

[mad.casual]

This is what you get when you give women the right to vote.

[Marcus Aurelius]

along with fewer sandwiches

[Hyperion]

What's worse is allowing women who cannot make a proper sammich. Didn't they use to teach that stuff in school?

[lap83]

I can't imagine why women are not lining up to make you guys sandwiches...

[Hyperion]

Hey if they don't like that smack on da azz reward, it's them who are losing out!

[SugarFree]

it's thdem who are is losin'g out!

Get it right, fuckwit!

[Hyperion]

Damn you grammar police to hell!

[mad.casual]

I can't imagine why women are not lining up to make you guys sandwiches...

Lining up to vote in record proportions for Obama and now, possibly/probably, Hillary. That's what we were talking about!

First you don't even ask how my day was. Then, in the middle of my discussion about other women in the electorate you just butt in with this talk about sandwiches like I'm just some insatiable stomach to you. Like there's nothing more complex or important on my mind than imagining women lined up to make me sandwiches. You never listen to me! You women are all the same.

[lap83]

Sorry dear, you look much prettier than those other guys, they're just jealous. /rolls eyes and escapes to garage

[Hyperion]

I had a college prof who was British and this is what he told the class one day. He told us that the British were hatching a plan to retake the USA. The first part of their plan was to allow women to vote in the USA. Then they will send in the Mexicans to finish us off. So far, he seems to be a prophet.

[MarkLastname]

By the way, wanna hear a joke? Why should you never listen to what a Britush woman has to say about politics?

They're always switching sides: during the day they're conservative; at night they're liberal; then for nine months they're in Labor.

[Zeb]

Needs some work.

[PapayaSF]

"...and then nine months later, they're in Labor."

[MarkLastname]

And I misspelled British, and labour for that matter.

My fragile self-esteem requires that blame Steve Jobs or Tim Cook, not sure which one exactly.

[Zeb]

That's very interesting. But I'm not seeing quite what their end game could be. How do we get from Messicans and bitches voting to British rule?

I suppose the plan must have been hatched while they still had that empire thingy going on as well.

[Anomalous]

Their plan was about as well thought out as that of the Underpants Gnomes.

[Diane Reynolds (Paul.)]

By the way, Robby, you keep up alt-text like that, and there'll be a little something extra in your paycheck.

[Crusty Juggler]

Robby does not want more nude photos of you squatting over a mirror, Paul.

[Citizen X]

[citation needed]

[Atanarjuat]

Is this why I got a laser hair removal ad, something I have never googled?

[Chipper Morning Wood]

You want taint pics in your inbox? Cause that's how you get taint pics.

[esteve7]

This is what "justice" means to these people. Pretty much everyone using the word justice in their movements (social justice, economic justice....) have no idea what that word actually means outside a perverted understanding.

[Fist of Etiquette]

...a stark admission from OCR that its interpretation of Title IX holds the "reasonable person" standard in contempt.

Reasonableness and Title IX cannot coexist.

[Lee Genes]

And people wonder where all the grievance studies majors end up....

[toolkien]

I recall on "optimist" here a few months back who waiting for the future when all these safe space, petulant college students move on to their careers and the "real world" would wise them up quick. The reality is these snots have been around for over two decades, gaining traction all that time, and they've been inhabiting the bureaucracy over that time. That's how we've reached this insane level of mandarin-ism with our government. It has so penetrated downward that it is now hitting our municipal levels, even in our "conservative" cities. It's not going to end pretty.

[Lee Genes]

They're otherwise unemployable. It's natural they would gravitate towards government, where people with no actual experience or useful knowledge get to tell everyone else how to live their lives and do their jobs.

[MarkLastname]

Them being unemployable is a feature, not a big, as they say. More unemployed idiots with useless degrees means more occupy movements, more protests for more counterproductive government programs, more fellow travelers for the 'revolution.'

[Crusty Juggler]

the agency's ultimate goal is to destroy reason itself.

SJW's are trying to destroy Reason? I KNEW IT!!!!!!!!!

[Troy muy grande boner]

Not necessary. The writing staff is doing all by themselves.

[Atanarjuat]

That's what Crusty said.

BURN

[Crusty Juggler]

Thank you. I thought the implication was obvious, but I guess Troy is just another naive Reason reader with his foolish head buried in the SJW sand.

[Hyperion]

They're slipping lately. Has there been even one Trump article today?

[Anomalous]

This would never have happened when Postrel was editor.

[pogi chips for liberty]

Yeah, but can she make a sammich?

[Cynical Asshole]

The agency has declared war on reason itself (the principle, not the magazine).

They'll get Preet on the case soon, I'm sure.

[Hyperion]

All that is going on here is that these students are being prepared for the lefist mega state that will finally bring to reality all the left's unrealized utopian dreams. There is zero room for free speech or personal freedom in that world. Justice will be handed out by the state as it sees fit. No worries, they will have experts deciding these things.

[DEATFBIRSECIA]

Top. Women.

[Atanarjuat]

Hot.

[AddictionMyth]

The goal is to institutionalize everyone as either a criminal or mentally ill. Go ahead, sacrifice your own children upon the altar of Big Government. You can do it:

[Hyperion]

I concur with shreek for once.

[AddictionMyth]

Tasty, thanks.

[Doctor Whom]

Goodthinkers have long said that they want to do away with reason. Now they are increasingly able to do something about it.

[Adam330]

There's something even more concerning here: the letter confuses a standard for assessing the sufficiency of evidence (i.e. preponderance) with a standard for assessing state of mind (i.e. reasonable person). These are very different things. You could have a reasonable person standard for state of mind and set the evidentiary standard at beyond a reasonable doubt, clear and convincing, etc.

[Sevens]

Not quite. That's the beauty of it. With such fine standards as preponderance, this is the practical outcome, even though these elements may be distinct. Does the reasonable person think evidence stands at 49%, or at 51%? Impossible to determine.

[Zeb]

That doesn't even make sense, though. Either an act is or isn't sexual harassment. I don't see how you can judge that based on evidence at all. I don't see how you could judge it in any way other than the reasonable person standard unless the law included an exhaustive list of things that are considered harassment. And if you don't have one of those, you have a case where it is entirely un-defined and so absolutely anything could be sexual harassment.

[SugarFree]

Either an act is or isn't sexual harassment.

This makes me feel unsafe.

[Zeb]

Your feeling unsafe is making me feel unsafe.

[SugarFree]

[goes in for warty hug]

[Griffin3]

This is not a bug, but a feature.

[Sevens]

You only get roughly equal decisions with a qualified threshold. Beyond reasonable doubt is not just a way of ensuring that innocent people don't get convicted. It's also a way of ensuring that decisions are equal. Another way to do this - well, to contribute to it - is to have numerous jurors. Of course in this system you neither have a decent evidentiary standard, nor a decent number of "jurors". Instead you have one or a handful of administrators who are either designed to be systematically partial, or are so in a sort of spontaneous order/by self-selection (that employees of colleges are predominantly of the left).

[Eman]

With that attitude it certainly is

[Sevens]

So, do accusations fall under the preponderance standard? Why not? Because that would be "unreasonable"? Because it's not unreasonable enough?

[MarkLastname]

According to feminists, women just don't lie about these things ever (unless they're saying they weren't harassed/sexually assaulted, then they're totally lying).

Therefore, any reasonable non-misogynist person must conclude that the accusation itself is evidence enough that the accusation is true. In other words, circular logic is now a virtue.

[Anomalous]

They do have one exception to this rule. Juanita Broaddrick.

[sloopyinTEXAS]

Robby, did they state what standard they want employed or did they leave it up to the schools yet give them guidance in which direction to change it? Because without guidance, they can keep the school jumping through hoops no never get out from under their investigative purview.

Maybe that's the goal. Keep people guessing what you want. Either way, FSU should demand clarification from the DoE. My guess is that there's nobody at the agency that knows what the expectations are or the basic rules schools can employ to be in compliance.

[Gaear Grimsrud]

"Because without guidance, they can keep the school jumping through hoops no never get out from under their investigative purview.
Maybe that's the goal"

Hmm. I think you may be onto something here.

[Careless]

Well that's definitely what's going to happen. If they don't get the outcomes the OCR desires, that will be proof they're not using the right standard.

[Adans smith]

Don't care,show me a article on the lies about Hillary's health.. Till then,these articles are dead to me.

[Atanarjuat]

Huh? They've just had some issues with transparency, that's all.

[Hyperion]

The most transparent administration in history is a hard act to follow. They have to figure out a plan first.

[Diane Reynolds (Paul.)]

BTW, whenever I see the acronym OCR, I read "Optical Character Recognition".

[LoneWaco]

Office of Cultural Revolution

[KerryW]

Ditto

[0x90]

"Optimal Cartographer Rendition"

/the '90s

[Lee Genes]

And the Department of Education continues its mission to further the educational prospects for all Americans.

Screw Reagan(and every other GOP pol with empty promises) for not keeping his vow to kill the DOEd

[Gaear Grimsrud]

Yeah but he proved deficits don't matter so we've got that.

[Troy muy grande boner]

"common sense, "reason," and "reasonable persons"

There are formal rules of reason. You can't argue against things like the law of non contradiction and affirming the the antecedent. Well you can, but that would make you a fucking idiot.

Common sense? reallly? What is the class of things that are common? Among whom? Among whom is this commons sense. When working with my dad installling sheet metal, I'd here the electricians bemoan lack of common sense. Well if you weren't an electrician so the fucking shit the thought was common, wasn't that fucking commmon. Same for sheet metal installer, pipe fitters, and well anyone who uses this term. So this phrase needs to die. And I've organic chemistry and common sense used in the same sentence. Yeah whatever asshole.

What you can't grok the Rule in Shelly's case? You fucking stupid heathen. It is common sense.

The term "reasonable person" needs to die. This is just fancy lawyer talk for a judge to do what ever the fuck he wants. A quick look at SCOTUS 4th Amendment jurisprudence indicates that there is a vast gulf between what these Top Men find unreasonable and me 119and I am the most reasonable person I know.). REmember that case in New Mexico where the pigs repeatedly ass raped that guy looking for drugs? No doubt at least one fuck on SCOTUS would find that reasonable. And Pedophile SCOTUS Thomas thought going through and 11 year olds panties for some fucking advil was reasonable.

[Colonel Slanders]

Common sense is defined as "don't stick your finger in a live electrical socket", "don't hit yourself in the head with a sledgehammer" or "don't drive your vehicle into a brick wall at 90mph". One thing that is increasingly clear, vis-a-vis Title IX, is "Never, ever stick IT in crazy".

[ant1sthenes]

Even that isn't adequate protection. Seems like the clearest rule is have connections that scare school officials more than OCR bureaucrats.

[Acosmist]

You can argue against the law of noncontradiction. What even.

[Jerryskids]

There are formal rules of reason.

Those are your rules, not mine.

Is there a name for this movement, "The New Barbarism" or something? The attack on reason isn't some isolated incident, it's a part of the whole moral relativism/multi-culti crap where the answer to the question "What is Truth?" is "Nobody knows, so your guess is as good as mine. No, seriously, anybody's opinions about what is true are just as valid as anybody else's so we have to assume everybody is equally correct no matter how much some silly people might insist there are objective standards to these sorts of things." It's antithetical to the whole Western idea of logic and reason being the way to get at the truth of things. These people are nothing less than barbarians intent on destroying Western Civilization.

[Jerryskids]

If the doctor tells me I need an apendectomy, on what basis can we say the doctor is probably right? If you say the doctor has been to medical school, has training and experience, you're just begging the question. On what basis can we say that going to medical school and having years of training and experience makes one qualified to diagnose medical conditions? I've examined the chicken entrails and they tell me I need a bath in sheep milk and leeches applied to my earlobes to cure me. If you're going to cite "empirical evidence", you're just using empirical evidence to say that empirical evidence is a superior method of arriving at the truth. Well guess what? The chicken entrails tell me reading chicken entrails is a superior method. Both are equally valid methods at arriving at the truth, right?

[Shirley Knott]

There's a really simple and really effective step universities could take to halt this sort of thing, pretty much dead in its tracks.
Stop funding athletics.
All athletics.
Become educational institutions again. No sports being funded, no place for Title IX to be applied.
Elegant in its simplicity.
Which is, of course, why it will never ever be considered.

[The Fusionist]

The Department of Education Hates You!

Because you use this One Weird Trick to Avoid OCR harassment!

[Hyperion]

Because you use this One Weird Trick to Avoid OCR harassment!

Staying away from academic campuses?

[Lee Genes]

Wake me when they stop accepting federally guaranteed loans for their students.

[Jerryskids]

Didn't at least one college (Hillman?) which doesn't accept federal funds get sued and told that was no defense against Title IX charges being brought against it? (IIRC, the logic the government was using would be the same as arguing that anybody who gets a paycheck from the government would be disbarred from donating any of that money to a church on separation of church and state grounds.)

[Diane Reynolds (Paul.)]

Why would that stop it? Does Title IX only refer to athletics?

[Robert]

No. That's just what's gotten the most publicity. You could get rid of athletics & hardly make a dent in the problem. Get rid of college, then you're talking.

[Diane Reynolds (Paul.)]

Exactly. I'm no expert on Title IX, and while it's often spoken of hand-in-hand with college athletics, it speaks generically to sexual equality.

[A frilly pink thing]

No, it doesn't refer to only athletics..

IIRC it also says nothing about policing the sex lives of students, and issuing punishments for violations.

These letters aren't even legal.

[DenverJ]

Reply to OCR:

It is our understanding that title ix doesn't say what you say it says. Please cite the part of the law giving your agency any authority in these matters.
Fuck you very much,
College Administration

[Elioron]

You mean they should stop receiving funding from athletics. Athletic programs (especially men's), overall, provide far more revenue than they use and schools aren't about to get rid of their cash cows.

[A frilly pink thing]

Again, IIRC, this is only true of a small minority of schools, with the vast majority of athletic departments being money losers. Yes, even the men's teams.

[Zeb]

And even lots of ones that get to play on TV.

[Rasilio]

If you restrict it to just Mens Basketball and Football the number of teams that make a profit off of athletics goes up dramatically and then among those who don't it still qualifies as the best possible use of their marketing budget.

The rest of their athletic departments? Pure money loser

[John C. Randolph]

If there were no jocks on campus, who would jilted SJW chicks make up bullshit rape accusations against?

-jcr

[kbolino]

STEM majors

[Zeb]

Sure, they're going to make it with SJW chicks.

[kbolino]

I don't think jocks were trawling the halls for SJW chicks, either. Many of the less clear cases seem to be instigated by SJW-minded third parties, not the alleged victims themselves.

[Zeb]

The SJW chicks might be trawling the halls for jocks.

[mad.casual]

If there were no jocks on campus, who would jilted SJW chicks make up bullshit rape accusations against?

Haven Monahan? Hasn't it been firmly established that the campus itself need only be loosely associated with anything resembling fictional sexual activity in order for Title IX to apply?

[GILMORE?]

Title IX stopped being about athletic funding about 10 years ago.

[Zeb]

It's not specifically about athletics, but I thought it was specifically about funding.

[GILMORE?]

no, funding was just how "discrimination" was being measured

Title IX, Education Amendments of 1972
(Title 20 U.S.C. Sections 1681-1688)

Section 1681. Sex

(a) Prohibition against discrimination; exceptions. 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,

The first place the law was applied was in sports because there were huge disparities in how schools spent whopping amounts on things like Football, but zilch on women's tennis or whatever.

but in theory it can apply to *anything* where someone alleges sex-based discrimination. (excluding the exceptions highlighted in the law, like Fraternities, 'boy scouts', .

The legislation, as a mere interpretation by a governing political administration, has the potential to cover all educational activities, and complaints alleging sex discrimination in fields such as: science, math education, health care, and dormitory facilities. It also applies to non-sport activities such as school band and clubs;

before the obama admin widened the applicability of title IX, it was (more or less) a minor issue. but then came the OCR and their 'Dear Colleague' letters.

[Zeb]

Well, now I know.

That's not vague at all. Nope.

[The Late P Brooks]

Frostburg is one of more than a hundred schools being investigated by OCR

Golly, I wonder how an institution gets itself on *that* list.

[Hyperion]

They didn't ruin the lives of enough 'rapey' dudes yet? Is there a quota for that?

[commodious dares eat a peach]

Extirpate it root and branch.

[Hyperion]

It's no wonder that Obama and his ilk want to force everyone to attend college. Ok, I know, they didn't say that, they just said that college should be 'free' for everyone. They just left off the 'or else' part.

[The Fusionist]

I think the Supreme Court delivered its "or else" circa 1971, when it said many useful employment tests are presumptively RACIST - so employers are safer limiting their hiring pool to college graduates. If you're a HS graduate who can prove skills, eg, on a skills test, you're simply taking advantage of TEH RACISM.

[Zeb]

That one always seems weird. I would have thought that presuming that certain minority groups will do worse on a test would be the racist part.

[kbolino]

The argument is a bit more nuanced than that. It says that if you administer an employment test, and the population that passes that test isn't distributed along racial lines exactly like the general population's racial makeup (or in a way that favors minorities), then the test must be racist ipso facto. In practice, this means that if you have a small population of prospective employees (like most employers would), and you don't pass the vast majority of non-white individuals regardless of their actual test results, then you will be fined punitively until you drop the test.

What surprises me is that the courts haven't (yet) found requiring a college degree to be ipso facto racist. It probably has the same or similar racially "disproportionate" selection bias. But it also fucks the poor and "uneducated", so maybe that's why the courts look the other way.

[The Fusionist]

In other words, "many useful employment tests are presumptively RACIST." Like I said.

If the racial statistics come out "wrong," then the courts give you a chance to explain yourself and prove you're not racist. If you can't prove it, you're racist and you lose and pay damages.

If you can go to the expense of proving your innocence, then you can win, but it doesn't always go that far - pre-emptive surrender often makes better economic sense.

[kbolino]

People have fought and lost. I don't know of anyone who fought the presumption and won. You can't even have a test of competence for firefighting anymore.

[The Fusionist]

I'm trying to anticipate a prog's counter-arguments - "It's t TOTAL LIE that the courts AUTOMATICALLY assume you're racist, you get to prove your innocence!"

[DenverJ]

So, the fire department was on site Saturday. Doing training, getting familiar with the property, measuring hose lengths from certain hydrants to certain parts of the property, etc.
There were two fire women on the crew. Both looked in very good shape, and at least one I would.
But I couldn't see either of them throwing a two hundred pound person over their shoulder and caring them out of a burning building.
I wonder how many of the issues we are seeing with police stem from similar realities regarding women's average strength?
I mean, does the training change when the class you are training now includes people who are weaker than those whom they will be confronting? Are you more likely to panic and shoot if you know that your backup can't possibly have your back?

[Jerryskids]

I'm not a racist, but......

The old Jack Webb "Dragnet" show was based on the LAPD, widely considered one of the finest, most professional police forces - also all white and all male. Once they got sued for having standards only white males could attain and had to drop the standards to allow in the correct numbers of non-whites and non-males, the LAPD turned into the LAPD we know and love today. People with high standards don't want to work around people with low standards so the place went to hell pretty damn quick.

[spqr2008]

Absolutely I would be 100% more likely to shoot if my partner were a female cop I wouldn't expect to be able to handle a hand to hand situation. In particular, I know a female cop who is maybe 110 lbs. soaking wet, and even though she can handle herself in sparring situations, I doubt she could handle a 250 lb. biker in a hand to hand situation.

[Zeb]

Or perhaps better stated: Presuming that the fact that certain racial groups do worse on average on a test has anything to do with race is pretty racist.

Now, I'm still probably oversimplifying a bit. There certainly have been tests, like literacy tests for voting, that were specifically designed to exclude black people. But it seems to me you should have to show at least some evidence that the test was designed to exclude certain races.

[kbolino]

There certainly have been tests, like literacy tests for voting, that were specifically designed to exclude black people.

Of course, the literacy tests by themselves also would've excluded a good many white voters which is why they had to add the original "grandfather clause" to allow them to keep voting. It's funny that people remember the literacy tests but not the obvious rule patch that had to accompany the tests in order to make the whole exercise racist in effect.

Put another way, a literacy test may or not be an "acceptable" requirement for voting on its own merits, but it was the grandfather clause that was racist, not the test.

[kbolino]

Footnote: FWIW, the "literacy tests" for voting that I've seen were generally bullshit. They were based around word games and other trickery and only tested literacy incidentally (you had to be able to read the damn things to stand any chance of passing them, but literacy alone wasn't enough--neither, for that matter, was intelligence). I'm not trying to justify those tests, nor say that we should have kept them.

[The Late P Brooks]

This standard falls short of the preponderance of the evidence standard required to satisfy Title IX.

That should be "preponderance of outage".

[Diane Reynolds (Paul.)]

"preponderance of outage"

That's how you know if someone is gay or not.

[The Late P Brooks]

outRage

goddammit

[John C. Randolph]

Since the OCR consists entirely of SJWs, it's not at all surprising that they don't give a shit about common sense or what reasonable people would decide.

-jcr

[IceTrey]

But the OCR is demanding a HIGHER standard for guilt.

[creech]

This is what happens when you take the king's shilling.

[Mickey Rat]

Gee, how does that apply to the minimum guaranteed income article?

[IceTrey]

They say the reasonable person criteria falls short of the OCR standard. Doesn't that mean the OCR wants the standard to be MORE difficult to find someone guilty of sexual harrassment?

[kbolino]

Yeah, if anything should clue you in that OCR is being run by political witch hunters and not credible lawyers, this is it. They don't even know (or care) what the words they're using mean.

[Hyperion]

The Obama admin was really pushing this stuff hard.

[Suthenboy]

This is 100% Obama. Every bit of it is in his lap.

[IceTrey]

Or they think the college's standard makes it too easy to find a person guilty of sexual harrassment and wants them to make it harder. They might actually be trying to do a good thing.

[LoneWaco]

Your explanation is reasonable and mine is ridiculous. Now which do you think is right?

[IceTrey]

Writing the last sentence gave me doubts.

[Suthenboy]

I think you have interpreted the doublespeak backwards. It falls short of the standards of title IX , standards which make a guilt finding arbitrary. You are making it too hard to arrive at an arbitrary finding, thus you are falling short of what title IX demands.

Remember who you are dealing with here.

[IceTrey]

So it's double doublespeak.

[Suthenboy]

It's social justice. What's social justice you ask?

Yep.

[Nativist, Racist & Xenophobe]

Social Justice: what has occurred when an SJW gets punched in the face.

[MarkLastname]

So, quadruplespeak? Or doublesquaredspeak?

[kbolino]

If you take the one quote out of context, it might seem that way. If you read the entire letter that Robby linked to, you will see that is not OCR's intent.

[IceTrey]

I don't agree. The part right before the qoute in the article says:

"OCR also determined that the Sexual Harassment Policy did not provide for an adequate, reliable, and impartial investigation, including an equal opportunity to present witnesses and relevant evidence."

The OCR wants it to be harder to convict than the college.

[kbolino]

Some of OCR's findings against the college's policy:

- Did not provide that third parties may bring a complaint against a student by invoking the Code of Student Conduct.
- Permitted an accused student to have an attorney present at the hearing if criminal
charges were also likely, but the complainant was not similarly entitled to have an attorney present.
- Provided that, during the sanctioning phase, the referred student may present character references or statements to testify on his or her behalf, but the complainant was not provided an equal opportunity for character witnesses.
- Provided that a written decision would be sent to the referred student at his/her address or
by email within a reasonable period of time, but it did not provide that the complainant would also receive a copy of the outcome in writing. Moreover, if a victim of a crime of violence or non-forcible sex offense wished to receive the results of any disciplinary hearing conducted by the University against a student who was the alleged perpetrator of the crime or offense, he or she was required to submit a request in writing

Such equity, much fairness.

[IceTrey]

Right, the OCR is saying that Frostburg's process was NOT fair and impartial. What's wrong with that?

[kbolino]

"NOT fair and impartial" != "harder to convict"

Moreover, the judicial process is not supposed to be "fair and impartial". It's supposed to be biased against the accuser.

[IceTrey]

Do you mean administrative process because the government is the judicial process?

"It's supposed to be biased against the accuser."

Not according to the letter.

[kbolino]

Not according to the letter.

No shit. But that wasn't your original argument. Obviously, the letter says what it says. That's not the fucking question.

[IceTrey]

That was absolutely my original argument. The OCR is saying that Frostburg's standards are too low not too high.

[kbolino]

The OCR is saying that Frostburg's standards are too low not too high.

That is how it is phrased but it is obvious that "too low" means "not giving enough deference to the accuser" which is not how standards of evidence are weighed in law.

FFS

[kbolino]

Furthermore,

OCR investigated whether the University provided prompt and equitable responses to sexual violence complaints, reports and/or other incidents of which it had notice (knew or should have known about), including those filed by the Complainant 1, Complainant 2,
and other students' complaints/reports. OCR also investigated whether any failure by the University to promptly and equitably respond to complaints of sexual assault/violence of which it had notice, resulted in individuals, including Complainant 1 and Complainant 2, continuing to be subjected to a sexually hostile environment.

I'm missing the part where they are concerned about the accused. Note that their definition of "sexually hostile environment" is so broad that, if the college fails to expel alleged sexual offenders, it risks being considered as fostering such an environment.

[IceTrey]

Those are not conclusions.

[kbolino]

Those are not conclusions.

I'm not quoting the whole fucking thing. It's a pain in the ass to reformat the text after copying and pasting it. I've seen OCRed PDFs that were easier to work with.

Based upon the same standard of evidence that OCR wants applied to these cases, I say it's pretty clear that they felt that Frostburg, and more generally the University System of Maryland, went too easy on the accused.

They throw around fair, equitable, and other nice-sounding words. But what they demand is a system that treats every accusation as facially meritorious and every accused individual as guilty until proven innocent. The only standard of evidence lower is "what the accuser says must be right" which is not the standard that was applied originally by the school.

[kbolino]

I've seen OCRed PDFs that were easier to work with.

No pun intended...

[IceTrey]

How do you get that when they say "equitable" a zillion times?

[kbolino]

How do you get that when they say "equitable" a zillion times?

Because I read the other words, a good many of which I fucking quoted.

This is not worth the time.

[IceTrey]

Your words.

"But what they demand is a system that treats every accusation as facially meritorious and every accused individual as guilty until proven innocent."

OCR's words.

"OCR also determined that the Sexual Harassment Policy did not provide for an adequate, reliable, and impartial investigation, including an equal opportunity to present witnesses and relevant evidence.

Unless you think they are blatantly lying or are using some secret code your point doesn't stand up.

[kbolino]

You've already won. Why are you still arguing? I'm not sure if you repeat the same quote a fourth time, it will have any greater effect. But why not, right?

[kbolino]

Moreover, OCR complains that the University handed several cases off to the police and criminal courts. If OCR wanted the highest standard of evidence before judgment is rendered, they should be thrilled that a court whose standard is "beyond a reasonable doubt" is hearing the case.

[IceTrey]

They don't want the highest standard they want preponderance of the evidence which was not what Frostburg was doing.

[kbolino]

Are you trying to be a fucking dense asshole? Your original claim was that the standard of evidence OCR wants is higher than what the college was applying.

You have presented no evidence to that effect and moreover are now arguing something else entirely.

[IceTrey]

"OCR also determined that the Sexual Harassment Policy did not provide for an adequate, reliable, and impartial investigation, including an equal opportunity to present witnesses and relevant evidence."

Are you off your meds again?

[kbolino]

You know what? You win. You're absolutely right. No need to concern yourself with the other 95% of the letter. Don't bother yourself with any of the details, like the other things that were said, the facts of the matter, or the obvious indication of bias on OCR's part. None of that matters, because you can make whatever argument you want and it must be true because you said it!

Congratulations, you got checkmate in pigeon chess.

[IceTrey]

Most of the letter is about what they were investigating. The conclusion they came to is what is important and that conclusion is that Frostburg's standards of conviction were TOO LOW!!!!!

[kbolino]

Whatever. Believe what you want.

[LoneWaco]

They were told there would be no math in the OCR

[Rufus The Monocled]

Who the heck are the OCR and what have they done with my lovely wife?

They sound like a truly remarkable bunch.

[A frilly pink thing]

Fuck Patsy Mink in her ass.

[Quo Usque Tandem]

Agencies such as the OCR, and the manner in which to interpret and promulgate regulations, are a direct reflection of the administration to whom they answer. Our current one being squarely within the progressive camp, it is only natural that the minions in the OCR, Department of Education, and others are all too eager to increasingly exert their power and influence into every possible aspect of our lives.

This is what progressive means.

[Rufus The Monocled]

No. Progressive means retardation.

[Quo Usque Tandem]

And they all want cake.

[JW]

In holding "common sense, "reason," and "reasonable persons" in contempt, OCR is effectively saying that colleges should base their decisions on the perspective of an unreasonable person.

It's the standard that OCR operates under, therefore everyone should.

Are you suggesting that it's reasonable to grope and rape women? Huh? HUH?

[Uncle Jay]

RE: OCR to Frostburg State University: Common Sense, 'Reasonable Person' Standard Violate Title IX
The agency has declared war on reason itself

Fortunately, common sense has long left the re-education camps of higher education a long time ago. Otherwise there would be no Title IX, political correctness, or indoctrination of the little people's children in the wisdom and freedom offers when it comes to socialist slavery.
Our country is getting better every day.

[kbolino]

The most interesting part of the letter to me is that OCR constantly concludes that this or that provision or lack of a provision or fails to comply with Title IX but not a single one of those concrete determinations matches any cited provision of the United States Code or Code of Federal Regulations. The citations they do make are all in the introductory paragraphs and none of them come even close to aligning with OCR's demands.

They're basically making this up out of whole cloth.

[Brandybuck]

This standard falls short of the preponderance of the evidence standard required to satisfy Title IX.

So what's wrong with the preponderance of evidence? It means that more credible evidence be given greater weight than less credible evidence. REASONABLE people are more credible than unreasonable people! Duh!

[kbolino]

... which must be why OCR is only ever intervening on behalf of accusers and never the accused.

[0x90]

In holding "common sense, "reason," and "reasonable persons" in contempt, OCR is effectively saying that colleges should base their decisions on the perspective of an unreasonable person. That's what is required to produce the agency's desired result: unreasonable people using something other than common sense.

Not commenting on the gist of the article, only pointing out that this suggestion produces a false dilemma, else it would be impossible for a given case to be judged similarly according to both standards.

[CraigL]

The "reasonable person" standard is key in many areas of law. A paranoid person can't go around shooting people that he believes are a threat because a reasonable person understands that they are not a threat. To prevent a single person from determining, based on being offended, what is allowed for the whole country in terms of pornography standards, the reasonable person/community standards test was developed. If someone taps you on the back to get your attention because you are standing on their foot, a reasonable person does not view this as assault.
To confuse the reasonable person standard with preponderance of the evidence is a mixed up way of trying to get the "if I feel I was raped/assaulted/looked at funny, then he has to go to jail" standard put in place. That is, there is no actual definition of sexual assault, just whether a girl is upset or not.
Very very dangerous, as we have seen.

[tgiordan]

The OCR is an arm of the Executive Branch whose leader is Barack Obama. Therefore, it is Barack Obama who is trying to destroy reason itself. It is worth asking if Hillary will continue this assault on reason as well as the rule of law.