Over at Minding the Campus, Brooklyn College Professor KC Johnson highlights a shocking c-ville (Charlottesville, Va.)
interview with Wendy Murphy, discredited media pundit and adjunct professor of law at New England Law.
Johnson takes issue with the interviewer’s dereliction of duty, failing to note Murphy’s history of "repeatedly [making] false statements of fact about the [Duke lacrosse] case … coupled with myriad unsubstantiated claims and bizarre interpretations of law" with respect to the Duke lacrosse scandal in which Duke lacrosse players were falsely accused of rape and later exonerated.
Johnson also highlights this shockingly incorrect statement of law by Murphy, commenting on the April 4, 2011 "Dear Colleague Letter" and the "preponderance of the evidence" standard of proof:
[In one case, d]espite finding [an accuser’s testimony] "credible and compelling," a panel ruled in favor of the accused, said Murphy. And that’s a problem."The preponderance standard is simple," Murphy said. "When [an accuser’s] accusations are deemed credible, and [a defendant’s] denials are not described with the same glowing terminology, [the accuser] wins."
As Johnson notes, Murphy is essentially arguing that "a failure to convict amounts to an OCR violation." Johnson writes that "[f]or the OCR even to consider [Murphy’s] absurd claim would be highly problematic."
Two further comments on why Murphy’s statement is legal error: First, looking at the context available from the underlying news item, it’s possible that the statements to which Murphy refers are intended to protect the feelings of the accuser while nevertheless stating that she has not sufficiently proved her case.
Such statements are not legally binding, and it is absurd for Murphy to suggest that they are or should be. Further, it would open up a huge liability for universities if Murphy’s reading were to be accepted. College lawyers would forbid administrators even to say "we understand where you’re coming from" for fear that such a statement would bind their decision-making. This would hardly be a positive outcome for accusers. 
Second, Murphy glosses over an important distinction between the credibility of accusations and the preponderance standard itself. The preponderance of the evidence standard recently mandated by the Department of Education for sexual assault proceedings on college campuses is already low—indeed, FIRE believes it is too low. Yet even if an allegation is deemed "credible" enough to proceed to a hearing, it will not inexorably lead to a guilty finding for sexual assault if the total weight of the evidence is nevertheless in favor of the accused. The University of Virginia Sexual Misconduct Policy, for example, requires the hearing panel to convict only when, by a unanimous vote, the panel "concludes that … Sexual Misconduct more likely than not occurred based upon careful review of all information presented." In other words, a guilty finding requires scrutinizing more than just credible allegations from the accuser, but weighing "all information presented."
Indeed, this is why college disciplinary hearings generally separate investigation and hearings into two discrete phases, sometimes with two separate standards of evidence. For example, the Harassment and Sexual Misconduct Policy at Hamilton College notes that:
In all complaints, each party has the right … to a timely investigation (typically within two weeks) and appropriate resolution of all complaints of harassment and sexual misconduct deemed credible by the Chair and appropriate Senior Staff member and made in good faith to College administrators.
As another example, Georgetown University’s College Sexual Misconduct Policy notes that the accuser and accused both have "[t]he right to investigation and appropriate resolution of all credible complaints of sexual misconduct made in good faith to college administrators."
In both situations, "credibility" is the standard for determining when to investigate allegations of sexual misconduct, not when to find the accused guilty. If there were no difference between investigating and finding guilt, the Georgetown policy, for example, would provide "the right to investigation and conviction for each credible complaint of sexual misconduct." That would be a scary, and probably illegal, policy.
Murphy’s characterization of the preponderance standard would actually take us below the "50.01%" standard of proof and move us firmly into "guilty until proven innocent" territory. This is dangerous, and, thankfully, not what OCR is asking for.
Check out the rest of KC Johnson’s commentary here.
Source: Getting it Wrong on ‘Preponderance’ - The Foundation for Individual Rights in Education - FIRE
HOW DID CHILDREN OF DIVORCE GET STUCK WITH THE VISITATION PLAN THAT AFFORDS THEM ACCESS TO THEIR NON-RESIDENTIAL PARENT ONLY ONE NIGHT DURING THE WEEK AND EVERY OTHER WEEK-END?
ReplyDeleteWhat is the research that supports such a schedule? Where is the data that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity researching the literature, and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the typical visitation arrangement with the non-residential parent! The reality is that this arrangement is based solely on custom. And just like the short story, "The Lottery," in which the prizewinner is stoned to death, the message is that deeds and judgments are frequently arrived at based on nothing more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an active and substantial role in their children's lives----especially in situations when the parents are apart. In order to support the goal for each parent to provide a meaningfully and considerable involvement in the lives of their children, I affirm that the resolution to custody requires an arrangement for joint legal custody and physical custody that maximizes the time with the non-residential----with the optimal arrangement being 50-50, whenever practical. It is my professional opinion that the customary visitation arrangement for non-residential parents to visit every other weekend and one night during the week is not sufficient to maintain a consequential relationship with their children. Although I have heard matrimonial attorneys, children's attorneys, and judges assert that the child needs the consistency of the same residence, I deem this assumption to be nonsense. I cannot be convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously implemented which maximizes the child's time---even in a 50-50 arrangement----with the non-residential parent, I direct the reader to the book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences to children when the father, who is generally the non-residential parent, does not play a meaningful role in lives of his children. The book, Fatherneed, (2000) by Dr. Kyle Pruitt, summarizes the research at Yale University about the importance of fathers to their children. And another post on this page summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each parent 100% of the time and obviously cannot have the same arrangement subsequent to their parents' separation. But it makes no sense to this family therapist that the result of parental separation is that the child is accorded only 20% time with one parent and 80% with the other. What rational person could possibly justify this?
Children's Bill of Rights
ReplyDeleteWHEN PARENTS ARE NOT TOGETHER
Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn't forget -- and kids shouldn't let them -- when the family is in the midst of a break-up.
You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn't feel guilty about wanting to see your dad or your mom at any time. It's important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.
You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can't work it out, a judge may make the decision for them.
You're entitled to all the feelings you're having. Don't be embarrassed by what you're feeling. It is scary when your parents break up, and you're allowed to be scared. Or angry. Or sad. Or whatever.
You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone -- either your other parent or a trusted adult like a teacher.
You don't belong in the middle of your parents' break-up. Sometimes your parents may get so caught up in their own problems that they forget that you're just a kid, and that you can't handle their adult worries. If they start putting you in the middle of their dispute, remind them that it's their fight, not yours.
Grandparents, aunts, uncles and cousins are still part of your life. Even if you're living with one parent, you can still see relatives on your other parent's side. You'll always be a part of their lives, even if your parents aren't together anymore.
You have the right to be a child. Kids shouldn't worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.
IT IS NOT YOUR FAULT AND DON'T BLAME YOURSELF.
----Special Concerns of Children Committee, March, 1998
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