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In Due Process Lawsuit, Appeals Court Sides with Michigan Student Expelled for Sexual Misconduct
A male student who was kicked off campus has alleged that the University of Michigan did not give him the opportunity to properly defend himself against sexual misconduct charges.
Last week, the Sixth Circuit Court of Appeals agreed that the lawsuit filed by ex-student "John Doe" against the university has merit. In a decision written by Judge Amul Thapar—a judge with a reputation for defending due process norms in cases involving Title IX, the federal statute that sets rules for campus sexual misconduct cases—the court held that Doe's lawsuit should survive a motion to dismiss.
"If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder," wrote Thapar. "Because the University of Michigan failed to comply with this rule, we reverse [the lower court's decision]."
Thapar's strong defense of the right of the accused to cross-examine the accuser is a timely development. As reported in Reason and The New York Times, the Education Department is currently workshopping a new approach to Title IX that would correct some of the due process deficiencies found in previous guidance issued under the Obama administration. An official with knowledge of Education Secretary Betsy Devos' plans told Reason that the new Title IX guidance would require cross-examination or "an effective substitute."
The Foundation for Individual Rights in Education's Samantha Harris praised the Sixth Circuit's decision.
"This is the latest—and most strongly worded—decision to date holding that when credibility is at issue, cross-examination is essential to due process in a campus sexual misconduct proceeding," Harris told Reason.
Michigan's handling of Doe's dispute with "Jane Roe" shows precisely why the existing sexual misconduct adjudication procedures are often unfair to the accused. Doe, a junior, and Roe, a freshman, met during a party at Doe's fraternity, where they drank a lot of alcohol and then had sex. According to Roe, she told Doe she didn't want to have sex just before collapsing onto his bed. She was immobilized and unconscious while he initiated intercourse with her. Doe remembered the night differently: He said he asked her if she wanted to have sex, and she replied "Yeah." Two days later, she filed a Title IX complaint against him.
The university's Title IX investigator interviewed 23 "witnesses," though none were witnesses to the actual encounter. Male witnesses backed up Doe's account, insisting that Roe did not seem drunk to them, while female witnesses said the opposite. The investigator determined that the evidence in Roe's favor and the evidence in Doe's favor was equally compelling, and there was simply no way to break the tie. Thus the preponderance-of-the-evidence standard could not be met, and it was recommended that Doe be cleared.
Roe appealed this outcome, and the university reversed the decision "without considering new evidence or interviewing any students," according to Thapar. Since expulsion was a possible penalty, Doe decided to withdraw from the university, just 13.5 credits short of graduating.
Doe's lawsuit accused the university of violating his due process rights and discriminating against him on the basis of sex, a violation of Title IX. The due process claim concerns Michigan's refusal to grant him any sort of hearing where he could have challenged the accounts of Roe and her adverse witnesses. The discrimination claim stems from the fact that the university's appeals board held that the female witnesses' testimony outweighed the male witnesses' testimony.
On both counts, the lawsuit should proceed to trial, according to the court.
Thapar's decision holds that cross-examination is required when at least one party's credibility is at stake. "Without the back-and-forth of adversarial questioning, the accused cannot probe the witness's story to test her memory, intelligence, or potential ulterior motives," he wrote.
KC Johnson, a Brooklyn College professor who often writes about campus due process issues, noted on Twitter that it is "reasonable for universities not to want an accused student to personally cross-examine his accuser," and no court has mandated that direct cross-examination is necessary. Instead, Thapar's decision proposed a serviceable alternative: permitting a representative of the accused student to perform cross-examination.
"To the extent the court here is saying that cross-examination is essential, but personal cross-examination is troubling, this is the strongest language we've seen from a court to date in support of the right to some kind of representation, at least in certain proceedings," Harris told Reason.
Currently, very few universities allow a student's legal representative to take an active role in Title IX proceedings. According to Harris, it would be wise for the Education Department to "encourage, though probably not require, schools to allow the active participation of an advisor." (Harris also wrote about the decision here.) We will have to wait until the new guidance is formally unveiled to see what it says about representation and cross-examination.
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Scotland: Opposition to testing 5 year olds
Politicians from every opposition party at Holyrood have formally backed a call for the testing of five-year-olds in schools to be scrapped.
A motion calling for an SNP U-turn over the assessments, which were introduced last year but criticised for allegedly upsetting children and wasting school time, was lodged by Labour yesterday and backed by 20 MSPs within hours.
Supporters included Patrick Harvie, co-convener of the Scottish Greens, Liz Smith, education spokeswoman for the Tories and Tavish Scott, education spokesman for the Lib Dems.
The motion is seen as a first step in a parliamentary push to force the Scottish government to abandon the tests, which ministers maintain are essential.
The Times understands that Labour and the Liberal Democrats are planning to use their opposition time in parliament to organise a debate on the policy, which will mean a vote in which the SNP is highly likely to lose. While it would not be binding on the government, to ignore the will of parliament, as well as teaching unions and parent groups, would be politically difficult thanks to her plans for a new independence vote.
After the Brexit referendum in which a significant majority of Scots voted to remain in the EU, Ms Sturgeon’s call for a second ballot on Scottish independence was formally backed at Holyrood.
After a UK government pledge to block the vote until after the Brexit process had concluded, the first minister condemned the “democratically indefensible” attempt to stand in the way.
Progress must be made because it was the “will of parliament”, she had said. So, to ignore a Holyrood vote over P1 testing may be politically fraught.
Ms Sturgeon launched a fresh defence of the policy yesterday. The computer-based tests are designed to adapt, depending on how difficult a child is finding them, and are not supposed to be seen as “high stakes” by children, parents or teachers. Initial plans to publish school-by-school results were abandoned after a backlash.
The first minister said: “The assessments are there for good reason. They produce lots of valuable information. Let’s take a step back from the politics of this. This is part of an approach to raise standards in our schools and close the attainment gap. Getting access to information about how young people are doing, to inform the judgment teachers make, is important. These assessments take less than an hour out of an entire school year.”
Willie Rennie, leader of the Scottish Liberal Democrats, said Ms Sturgeon was “deeply deluded” over the value of the tests.
He said: “It is an insult to teachers to make out testing takes up so little of their time and absolutely outrageous to suggest it gives them any information that they won’t have ascertained themselves over the nine or ten months they’ve been teaching them.
“The first minister is adamant her policy is worthwhile. But teachers across the country have made clear the information these tests produce does not provide them with any unique or useful information. The first minister’s misleading and obstinate approach is standing in the way of teachers being able to make the most of precious classroom time. This must end now.”
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Duped by diversity: Colleges corrupt their curriculum to satisfy modern progressive sensibilities
Another new college year, another opportunity to teach students that “America was never that great,” to quote Gov. Cuomo. From the moment that college students set foot on campus, they will be inundated with the message that the United States in particular and Western civilization in general are the world’s primary sources of oppression and injustice.
That idea is rapidly infusing the world outside academia, as Cuomo’s recent comment suggests.
Here is what to expect over the next nine months.
The anti-meritocratic assault on science will accelerate. The lack of proportional representation of females, blacks and Hispanics in computer science, engineering, and other math-based fields will be attributed to a racist and sexist commitment to the “male-socialized traits” of “objectivity and rationality,” as a recent article in The Physics Teacher put it.
Teaching will be slowed down, and standards loosened (a process officially known as “culturally responsive pedagogy”), in an effort to “diversify” the STEM classroom. A professor at the University of Akron announced in May 2018 that he was boosting females’ grades in his Systems Integration class as part of a “national movement to encourage female students to go into information sciences.” He withdrew the policy after criticism from conservative media, but such efforts will continue in other forms.
The big tech companies will mimic this commitment to “diversity,” ordering recruiters and managers to prefer females and so-called applicants “of color” over white and Asian males. Medical schools will admit, hire and promote in part on the basis of race, rather than solely on academic qualifications.
The metastasizing campus diversity bureaucracy, costing taxpayers and parents millions of dollars a year, will drum into students that they are either victims or oppressors. Lavishly paid diversity deanlets and vice chancellors of equity and inclusion will propound a patently delusional idea: that to be a female or minority college student today is to be the target of life-threatening racism and sexism. (Never mind that these allegedly racist colleges employ large racial preferences to order to admit as many as “underrepresented minorities” as possible.)
Bias response teams, discrimination reporting hotlines, coursework on white privilege, workshops on toxic masculinity, faculty training in implicit bias — all will pour forth from university coffers in wild abandon. Universities will be held harmless for the resulting increases in tuition, which will be treated as a naturally occurring phenomenon, solvable only by more federal aid.
Self-engrossed students will jockey for position on the ruthlessly competitive totem pole of victimhood. While today the “trans” student reigns supreme, his/her/their/zhe position is not secure.
Let some creative students come up with a new category of oppression that is preventing them from studying for exams or attending class, and their college president will penitently promise to make amends by hiring more diversity bureaucrats and setting up academic programs in this newly discovered form of bias.
Students who have been primed to see oppression where none exists will carry that chip on the shoulder into the “real world.” It will prevent them from seizing the many opportunities available to them and will further engulf society in the culture of complaint.
The foundational belief in victimology will be leveraged to further suppress speech that challenges campus orthodoxies, all in the name of preventing existential harm to members of favored victim groups. The “real world” will follow suit and punish anyone who violates diversity taboos, as we saw this summer with the torpedoing of a qualified judicial nominee who had mocked racial identity politics as a college student and the firing of a Hollywood executive who had referred to black male-female dynamics as part of a script discussion.
If the Republicans hold the House in the mid-term elections, college administrators will probably deploy an army of petting dogs and cartloads of stress-reducing chocolates to protect student Resisters from trauma.
As for actual learning, our intellectual patrimony will be further eroded. Culturally illiterate students who could not name a single artist or philosopher from Periclean Athens, the Renaissance, or the Enlightenment will announce that Western civilization is racist and patriarchal. Being forced to study the West’s monumental accomplishments of imagination and reason, whether by Plato, Aeschylus, Mozart or Hume, jeopardizes their very survival, they will whine.
And their professors will kowtow to such ignorance and create more alternative courses based on an author’s gonads, melanin and sexual preference.
At Reed College, students calling themselves Reedies Against Racism occupied class sessions of the college’s signature humanities course during the 2016-17 academic year, surrounding the lecturers with denunciatory signs. Humanities 110, which had been taught since 1943, was a headlong plunge into the explosion of artistic creativity in the ancient Mediterranean world, starting with the Epic of Gilgamesh and ending with the Bible and Apuleius.
Too white, male and Eurocentric, whined the Reedies — even though early Mediterranean societies were neither exclusively white nor European. Naturally, the faculty caved, with the chair of Humanities 110 even praising the protesters for their fortitude in getting up at “9 in the morning, three days a week,” to occupy the class.
The new “decentered” course bumps an as-yet-unspecified number of texts to make room for two new modules on Mexico City in the 15th through 20th centuries and Harlem from 1919 to 1952.
While these substituted periods contain works worthy of studying, they fail to expose students to the building blocks of Western literature and philosophy; they were chosen simply to meet an identity-based political agenda.
Reedies Against Racism, of course, were not placated. The new Humanities 110 should focus on cities outside Europe, “as reparations for Humanities 110’s history of erasing the histories of people of color, especially black people,” they complained in a post.
A class called Major English Poets has been the gateway into Yale’s English major for decades, exposing students systematically to the most influential poets of English literature: Chaucer, Edmund Spenser, John Donne, Milton and Wordsworth.
Such foundational significance is irrelevant, according to the nearly 160 students who circulated a petition in 2016 against the class. “A year spent around a seminar table where the literary contributions of women, people of color, and queer folk are absent actively harms all students, regardless of their identity,” the petition declared. “The Major English Poets sequences creates a culture that is especially hostile to students of color.”
In response, Yale’s English faculty remained resolutely mum about why these poets are so central and why students are privileged to immerse themselves in their works. Instead, they meekly removed the requirement that English majors take the course and created an alternative sequence that has “inclusion as its goal,” Yale’s director of undergraduate studies told the Yale Daily News. No period will “simply and exclusively focus on the writing representations of aristocratic white men,” another English professor explained — even if the greatest writers in any given period happen to be, irrelevantly, “aristocratic white men.”
Education in the monuments of the human imagination must now take the back seat to identity politics.
At the University of Pennsylvania in 2016, students removed a large print of Shakespeare from the English department and replaced it with a photograph of Audre Lord, a self-described “black, lesbian, mother, warrior, poet.” In response, the department chair blandly invited “everyone to join us in the task of critical thinking about the changing nature of authorship, the history of language, and the political life of symbols.”
Here’s what he should have said instead when students first complained about the unsafe space created by the Bard’s picture: “Please provide your analysis of ‘Hamlet,’ ‘King Lear,’ ‘Midsummer Night’s Dream’ and ‘Twelfth Night.’ Until you read Shakespeare, there is no negotiating over him.”
To see the local effects of academic diversity ideology, look no further than Mayor de Blasio and Schools Chancellor Richard Carranza’s war on school standards. Their plans to scrap objective entrance tests to the city’s selective high schools and middle schools parrot the specious rhetoric of “privilege” and “bias” that college victimologists have perfected. In fact, there is no better guard against bias and inequality than color-blind, high standards and the expectation that all students will work hard to meet them.
De Blasio and Carranza’s grotesquely wasteful $23 million anti-bias training for the city’s teachers is also a direct import from the university. Education schools marinate already left-leaning students in social justice theory to produce the most “progressive” profession on earth. Yet we are to believe that these immaculately “anti-racist” teachers are discriminating against students of color in their grading and disciplinary practices and are in need of another taxpayer-funded boondoggle in order to overcome their racism.
The solution to corrosive identity politics lies in a return to universities’ core mission: joyfully passing on the precious inheritance of Western civilization, which happens to have been disproportionately shaped by white males.
If a work by an allegedly “marginalized” author is unknown and great, by all means include it in the canon, not because of social justice but in order to discover new sources of pleasure and enlightenment.
But to pretend that Western civilization is not worth studying and respecting because it does not happen to reflect the gender and racial diversity of American cities, or the uber-liberal values of students who attend universities today, is pure bunk.
Until universities return to their core mission, the diversity delusion will continue poisoning and dividing the country.
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