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A college student who wants to file a complaint of sexual assault within the campus disciplinary system informs a university employee such as an assi… - David Bernstein
" "A college student who wants to file a complaint of sexual assault within the campus disciplinary system informs a university employee such as an assistant dean for student life, or perhaps the Title IX coordinator. That person eventually forwards the complaint to a university disciplinary panel that may be composed of, for example, an associate dean with a master's degree in English literature, a professor of chemistry, and a senior majoring in anthropology. Unlike criminal prosecutors, members of the disciplinary panels do not have access to subpoena powers or to crime labs. They often have no experience in fact-finding, arbitration, conflict resolution, or any other relevant skill set. There is, to put it mildly, little reason to expect such panels to have the experience, expertise, and resources necessary to adjudicate a contested claim of sexual assault. Making matters worse, most campus tribunals ban attorneys for the parties (even in an advisory capacity), rules of procedure and evidence are typically ad hoc, and no one can consult precedents because records of previous disputes are sealed due to privacy considerations. Campus "courts" therefore have an inherently kangoorish nature. Even trained police officers and prosecutors too often mishandle sexual assault cases, so it's not surprising that the amateurs running the show at universities tend to have a poor record. And indeed, some victims' advocacy groups, such as the Rape, Abuse and Incest National Network (RAINN), oppose having the government further encourage the campus judicial system to primarily handle campus sexual assault claims, because that means not treating rape as a serious crime. A logical solution, if federal intervention is indeed necessary, would be for OCR [US Department of Education's Office of Civil Rights] to mandate that universities encourage students who complain of sexual assault to report the assault immediately to the police, and that universities develop procedures to cooperate with police investigations. Concerns about victims' well-being when prosecutors decline to pursue a case could also be adjudicated in a real court, as a student could seek a civil protective order against her alleged assailant. OCR could have mandated or encouraged universities to cooperate with those civil proceedings, which in some cases might warrant excluding an alleged assailant from campus.
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About David Bernstein
David E. Bernstein (born 1967) is a law professor at the George Mason University School of Law in Arlington, Virginia, where he has taught since 1995. His primary areas of scholarly research are constitutional history and the admissibility of expert testimony. Bernstein is a contributor to the legal blog The Volokh Conspiracy. Bernstein is a graduate of the Yale Law School, where he was a John M. Olin Fellow in Law, Economics and Public Policy, a Claude Lambe Fellow of the Institute for Humane Studies, and a senior editor of the Yale Law Journal. He received his undergraduate degree from Brandeis University.
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David E. Bernstein
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[P]olitical speech does not lose First Amendment protection "simply because its source is a corporation". Otherwise, there would be nothing in the Constitution stopping the government from shutting down any newspaper, movie company, television station, or website that organized itself as a corporation.
Some former Bush officials, however, believed that the Justice Department's failure to pursue the New Black Panther Party case resulted from top Obama administration officials' ideological belief that civil rights laws only apply to protect members of minority groups from discrimination by whites. Department spokeswoman Tracy Schmaler denied any such motives. She asserted that "the department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved". But an anonymous Justice Department official told the Washington Post that "the Voting Rights Act was passed because people like Bull Connor [a white police commissioner] were hitting people like John Lewis [a black civil rights activist], not the other way around". The Post concluded that the New Black Panther Party case "tapped into deep divisions within the Justice Department that persist today over whether the agency should focus on protecting historically oppressed minorities or enforce laws without regard to race". The Office of Professional Responsibility's report on the case found that several former and current DOJ attorneys told investigators under oath that some lawyers in the Civil Rights Division don't believe that the DOJ should bring cases involving white victims of racial discrimination. The report also found that Voting Section lawyers believed that their boss, appointed by President Obama, wanted them to bring only cases protecting members of American minority groups. She phrased this as having the section pursue only "traditional" civil rights enforcement cases. Her employees understood that by "traditional" she meant only cases involving minority victims.
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