sexual assault

Why Cross-Examination Rights Matter in Campus Sexual Harassment Cases under Title IX

by Hans Bader on June 7, 2011 · 3 comments

in Employment, Legal, Nanny State, Personal Liberty

As part of its broader attack on safeguards against false accusations, the federal Education Department is urging colleges to strip students and faculty of the right to cross-examine their accusers in disciplinary proceedings over alleged sexual harassment. In an April 4 letter from Assistant Secretary for Civil Rights Russlynn Ali, the Education Department said that it “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.”

This is perverse, since the subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).

But a wrongly-accused person can’t establish that lack of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.

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Obama Administration Undermines Safeguards for Teachers and Students

by Hans Bader on May 18, 2011

in Legal, Nanny State, Personal Liberty, Politics as Usual, Zeitgeist

In the Washington Examiner, I explain how the Education Department is both undermining protections for falsely-accused students and teachers, and reducing the accuracy of campus decisions in sexual harassment cases. This is occurring as a result of demands contained in an April 4 “Dear Colleague” letter sent by a political appointee (Assistant Secretary for Civil Rights Russlynn Ali) to the nation’s school officials, who are now complying with those demands even though they lack a sound legal basis. In the Washington Post, attorney Wendy Kaminer wrote that “the Education Department’s new policies increase the risk that students wrongly accused of misconduct will be found guilty, suspended or expelled, and tarred as stalkers or rapists.”

The Foundation for Individual Rights in Education took issue with the Education Department’s demands in this letter. The Daily Caller covers the controversy here.

George Mason University Law Professor David Bernstein comments here, observing that “the Department of Education has no business dictating” a lower evidentiary “standard to universities nationwide.” FIRE’s Samantha Harris and Erica Goldberg also comment on the controversy.

Pat-Downs or Full-Body Imaging? TSA Airport Security Backlash

by Ryan Young on November 15, 2010 · 2 comments

in Nanny State, Personal Liberty, Precaution & Risk

The TSA has crossed a line. Its new security procedures require employees to either touch passengers’ genitals or take pictures of them. The public backlash is loud and growing. My colleagues Michelle Minton, Brian McGraw, and Ivan Osorio have all covered the issue. Here are what other people around the country are saying:

Tim Carney reports that the CEO of Rapiscan, a scanner manufacturer, is an Obama donor and accompanied the President on his recent trip to India.

A group of activists has declared November 24 to be National Opt-Out Day. November 24 is the day before Thanksgiving, and will be one of the year’s busiest travel days. Since pat-downs take more time than full-body scans, the goal is to clog security until TSA removes full-body scanners from airports. I will be participating.

The proprietor of Our Little Chatterboxes, a blog about child development issues, recounts her encounter with the TSA’s new pat-down procedures. She writes, “[The TSA employee] felt along my waistline, moved behind me, then proceeded to feel both of my buttocks. She reached from behind in the middle of my buttocks towards my vagina area… She then moved in front of my and touched the top and underneath portions of both of my breasts… She then felt my inner thighs and my vagina area, touching both of my labia.”

The blogger at Insert Title Here tells his story, with video. He was threatened with a $10,000 civil suit.

The Chicago Tribune’s Steve Chapman wrote an excellent column, noting that “The U.S. Marshals Service recently admitted saving some 35,000 images from a [full-body scanning] machine at a federal courthouse in Florida. TSA says that will never happen. Human experience says, oh, yes, it will.”

Art Carden calls for abolishing the TSA. “The airlines have enormous sums of money riding on passenger safety, and the notion that a government bureaucracy has better incentives to provide safe travels than airlines with billions of dollars worth of capital and goodwill on the line strains credibility,” he writes.

The Drudge Report posts a picture of a TSA agent fondling a nun’s private parts.

Photo credit: cjdavis’ flickr photostream.

Franken Uses Inflammatory Rape Claim to Destroy Arbitration of Employment Disputes, Including Disputes Totally Unrelated to Rape

by Hans Bader on October 20, 2009 · 1 comment

in Employment, Labor, Legal, Politics as Usual, Sanctimony

Recently, the Senate voted to ban defense contractors — that is, much of American business — from contractually mandating arbitration of employment discrimination disputes.  The bill’s sponsor, Al Franken (D-Minn.), pushed the bill by claiming that arbitration provisions in an employment contract kept Jamie Leigh Jones from suing her alleged rapists.  But they didn’t: a federal appeals court ruled the arbitration provisions didn’t apply to Jones’ case, leaving her free to sue in court.

Franken’s amendment to a defense appropriations bill banned contractors from requiring arbitration of employment discrimination disputes and sexual assault cases, including “arbitration” of “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment.”  The language about sexual assault was irrelevant to most employers: Lawsuits against employers for employment discrimination vastly outnumber lawsuits over sexual assault, which are a tiny fraction of all court cases, so the bill’s real purpose was to ban arbitration of discrimination cases, not to do anything for rape victims.  Few rapes occur in the workplace, as opposed to private settings like homes; and even rapes that do occur in the workplace often fall outside the scope of arbitration clauses.  (Arbitration does not, of course, prevent criminal prosecution.)

Liberal trial lawyers have long objected to Supreme Court decisions like its 7-to-2 Gilmer decision upholding contractual provisions that require binding arbitration of employment discrimination cases, even though arbitrators often rule in favor of employees and consumers, and award them substantial monetary damages (although they do permit plaintiffs less discovery than courts do; on the other hand, arbitration typically results in “lower litigation costs and expenses“).   Franken’s amendment largely fulfills their fantasy of banning arbitration in discrimination cases.

Although Franken’s amendment has a big effect on discrimination cases — and no effect at all on most rape cases — it has been falsely described ever since as an “anti-rape amendment,” and the 30 senators who voted against the amendment have been depicted ever since by liberal sites such as Huffington Post as the “Republicans for Rape“  — even though the Defense Department opposed Franken’s amendment, and even though Senators like Bob Corker said they might have voted for the amendment had it merely covered rape and violence claims, rather than a vast array of unrelated employment disputes.

Jon Stewart, for example, depicted the amendment as being all about rape, asking his viewers “How is ANYONE against this?” and suggesting that only a nut or a misogynist could do so.  (This is the same Jon Stewart who selectively edits taped interviews to make conservatives look stupid, or make them appear to say the opposite of what they actually said).  But the liberal Stewart has aimed this criticism only at conservative lawmakers, not at the Obama Defense Department (or the liberal Supreme Court justices who voted with their conservative colleagues to allow all employment disputes, including those involving sexual assault, to be governed by contractual arbitration provisions in the Gilmer case).  So has Huffington Post, whose first inflammatory article on the vote generated over 2000 comments, many of them angry and vituperative.  The inflammatory coverage has resulted in Senators who voted against the amendment receiving hate mail and angry and hateful messages.

Liberal journalists and bloggers complain a lot about the use of so-called “wedge issues,” but they themselves are the ones who typically use inflammatory wedge issues, as the Franken amendment illustrates.

Another example is the many false claims made by liberal journalists and Obama about the Supreme Court’s decision in Ledbetter v. Goodyear, a subject I addressed at length here.  In the Ledbetter case, the press claimed that the Supreme Court had created a rigid 180 day deadline for suing over pay discrimination — when in fact it did no such thing.

By the way, studies show that Jon Stewart’s viewers aren’t any smarter than Bill O’Reilly’s — contrary to what liberal journalists believe.