Ultimately, I cannot know what happened during this incident because I was not there. I can't speak to the consent of any involved or their guilt or innocence.
The issue attempting to be brought to the fore by the players seems to be due process - or the lack thereof - on college campuses. I have not read the 80 page report but did read the police report. I cannot say if due process was afforded the accused in this case, but in other similar cases due process procedures have been questionable at best.
https://www.thefire.org/university-...-perceived-lack-of-due-process-for-teammates/
A law enforcement agency’s decision not to bring charges against a student is not binding on an institution of higher education. But the public should ask questions of institutions that contradict law enforcement conclusions by imposing sanctions on students. Law enforcement officials undoubtedly have superior tools to investigate allegations of criminal activity. For example, colleges don’t have subpoena power, so they cannot compel potential witnesses to cooperate with investigations or put them under oath if they are willing to testify. In this instance, prosecutors may have decided not to indict the accused players because they did not believe they could have demonstrated probable cause to justify the indictments. If this is so, it is hard to see how a school could meet the preponderance of the evidence standard, which is even higher.
The Minnesota football players are far from alone in arguing that they were disciplined for alleged sexual misconduct in a campus judiciary without due process. Scores of lawsuits filed since 2011 by students around the country have alleged the same. Because of the stigma associated with allegations of sexual misconduct, however, plaintiffs typically hope their cases are resolved quickly and quietly to avoid compounding the reputational harms associated with being accused of sexual assault. While this is understandable, it also means that the public often doesn’t see the human consequences of denying students core due process protections.
Of course, student athletes—like all students—must receive fair treatment when allegations against them are being evaluated by a college or university. Students should neither be treated with favoritism, nor be disfavored, because of their status as student athletes.
If FIRE has learned one thing in our years of analyzing campus sexual assault cases, it’s that when it comes to institutional bias, the winds don’t blow in only one direction. One campus administration might decide that protecting a star athlete is necessary to protect its reputation or financial interests. Another school may seek to make an example of a star athlete, regardless of the facts of the specific case, in an attempt to send a message to other students or the general public. Because colleges investigate their own students, they may face serious conflicts of interest, inviting them to address allegations guided by a desired outcome instead of an impartial review of the evidence. Incorporating meaningful due process protections would go a long way toward ensuring that all cases are handled with the impartiality that complainants and accused students deserve, both at the University of Minnesota and across the country.
Some information on due process on the public school campus.
https://www.thefire.org/fire-guides...mpus-full-text/#__RefHeading__2502_2127946742
Students facing possible suspension or expulsion from public colleges and universities are entitled to due process protections because their liberty and property are at stake. But exactly what process is due?At the absolute minimum, students in campus disciplinary cases are entitled to have (1) notice of the charges against them, (2) an explanation of the evidence against them, and (3) an opportunity to tell their side of the story.
The Supreme Court established these minimal requirements in Goss v. Lopez (1975), in which nine suspended Ohio high school students sued their school, claiming that they had been denied due process. The Court, weighing the costs and benefits to the school and to the students, held that although the most severe suspensions were only ten days long, the students had constitutional rights protected by the due process clause of the Fourteenth Amendment.
The Goss Court ruled that in student disciplinary cases involving short suspensions, an accused student must “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” The Court held that, at the very least, administrators must engage in an “informal give-and-take” with a student before imposing a penalty. To the Court, requiring this bare minimum of due process—notice and an “informal hearing” that permits a student to “give his version of the events”—is necessary because it “will provide a meaningful hedge against erroneous action.”
ISN’T GOSS A HIGH SCHOOL CASE?
It is. As a college student, you should generally consult college cases to understand the full scope of your rights. But high school cases are very useful to you, too, because as a college student, you have at least the same rights that high school students possess. Courts have generally found that college students are entitled to more due process protections than students in the lower grades because college students are adults in the eyes of the law. Further, because there are more high school than college students, high school jurisprudence may be better developed on the point at issue in your case. In other words, high school legal precedents establish a floor, not a ceiling, to the rights accorded to you as a college student.
Importantly, the Court specifically stated that in more difficult cases, administrators may permit the participation or advice of counsel, hold hearings, or allow cross-examination. To a certain extent, Goss left the decision of whether to offer these greater protections to the “discretion” of administrators. But the Court also stated that due process “may require more formal procedures” in more serious cases.
Goss remains the Supreme Court’s clearest statement on student due process rights. So in the four decades following Goss, the lower federal courts and various state courts have worked on a case-by-case basis to determine how much process is due in various situations. While results have varied, federal and state courts have agreed that the amount of due process required in campus disciplinary cases must be based on the nature and gravity of the charges, and on the range and severity of the potential punishments.
Exactly what protections are required in particular cases, however, remains unsettled. Courts have required protections such as cross-examination and the right to an attorney in some campus cases where they have judged these safeguards to be necessary for basic fairness. But courts have also denied them in other cases where they believed that students could get a fundamentally fair hearing without these protections.
Generally speaking, judges must weigh the costs and benefits, for the institution and for the parties involved, in each particular case. The cost of adding procedural safeguards—in terms of time, effort, money, and interference with the smooth operation of the university—must be balanced against the likelihood of grave error or injustice if the procedural safeguards were not offered.
The following is in regards to a "Dear Colleagues" letter from the OCR to college campuses everywhere. A number of legal minds have said the directive goes to far in denying due process in such cases.
https://www.insidehighered.com/news...ment-education-revise-sexual-assault-guidance
Citing an erosion of free speech and due process on college campuses, a group of 21 law professors on Mondayreleased an open letteralleging that the U.S. Department of Education has unlawfully expanded how colleges must define and respond to allegations of sexual assault and harassment.
The same argument has been made frequently in recent months by Republican lawmakers who say that the department’s Office for Civil Rights illegally created new regulations through a series of documents instructing colleges how to handle cases of sexual misconduct. Monday’s letter comes at a time when the department is also facing two lawsuits making the same claim. And a third lawsuit is on the way. The legal argument is an important one, because many colleges revised procedures based on the Education Department guidance -- sometimes saying that they had no choice but to do so.
“OCR needs to clarify which directives it considers to be guidance documents vs. regulations,” the professors wrote. “Directives that are guidance documents need to be revised to eliminate provisions containing obligatory wording, unless these provisions are expressly supported by prior legislation or regulation. Directives that are deemed to be regulations need to be brought into compliance with requirements of the Administrative Procedure Act.”
In 2011, the U.S. Department of Education issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault.
The letter explained how the department interprets Title IX of the Education Amendments of 1972, and for the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence. The department released a similar letter in 2010 about sexual harassment and bullying.
Department officials maintain that the letters merely clarify existing regulations. Critics, however, say that the lettersactually enacted sweeping regulatory changeswithout first going through the required notice-and-comment procedures required by the Administrative Procedure Act.
"Since the [Dear Colleague] letter in 2011, there has been a surge in colleges and universities mishandling investigations and wrongfully prosecuting male students for fear of losing federal funding. Because of these directives that have resulted in a clear disregard for the due process rights of male college students, Grant Neal and hundreds of other male students are facing life-changing consequences for allegations that have not been proven and crimes that have not been committed."
In April, the Foundation for Individual Rights in Education announced that it would represent “a student or institution harmed by OCR’s mandates.” FIRE said this week that it will likely announce the lawsuit sometime in the next month. Like Miltenberg’s lawsuits and the open letter released Monday, the FIRE suit will challenge colleges’ use of the preponderance of evidence standard and argue that OCR violated the Administrative Procedure Act.
“While on its face, the Dear Colleague letter is not intended to be binding legal authority, the department holds it up as binding legal authority, because when they do these investigations, they repeatedly say that preponderance of evidence is that standard colleges must change to,” Kent Talbert, a lawyer and former general counsel for the Education Department, said. “So far, we’ve had the department making the determination that it followed the proper process to make these changes. It’s time to let an independent judge decide.”
More info from FIRE directly related to the letter and due process.
https://www.thefire.org/frequently-asked-questions-ocrs-april-4-dear-colleague-guidance-letter/
With regard todue process, OCR’s April 4 letter requires colleges and universities investigating and hearing allegations of sexual harassment and sexual violence on campus to use a "preponderance of the evidence" standard to determine if someone is guilty. This standard merely requires that it is "more likely than not" that someone is responsible for what they are accused of, and it is our judiciary’s lowest standard of proof. This is because whoever is serving as the "jury" in such a case need only be 50.01% certain that the accused person is at fault.
Given the seriousness of allegations of sexual misconduct-which range from sexual harassment to rape—FIRE believes that requiring universities to find accused students guilty based on this "more likely than not" standard does not sufficiently protect the accused person’s right to due process. For comparison, if you are tried in a real court for any crime, no matter how minor, the more familiar "beyond a reasonable doubt" standard must be used, which means that the judge or jury must be virtually certain of your guilt.
In another threat to due process rights, OCR is mandating that if a university judicial process allows the accused student to appeal a verdict, it must also allow the accusing student the right to appeal as well. As explained below, this requirement means that a student found innocent in a hearing may be retried, even if the charges against him or her have already been proven baseless.
I am mainly using FIRE (The Foundation for Individual Rights in Education) due to their extensive work in this area specifically and the rather dry and unpolitical nature of their published writings. It's quite easy to find hysterical arguments on both sides of this argument. For better or worse a lot changed in 2011 and the stakes are high for victims and the accused alike. No doubt, since 2011 it has been much easier for a school to punish an accused student, thereby depriving them of "liberty (that of attending school and receiving an education) and property (certainly future earnings and possibly reputation)" if not "life", which are outlines specifically in the Constitution as things one cannot be deprived of by the state (even a state institution of higher learning) without due process.
Due process does not mean everything in every case, but it must be consistent and fair. There are plenty of other questions in cases like this like adherence to state laws and regulations and to promises the school has made.
But most of the recent uproar regarding cases like this go back to that letter from the OCR, which has even law professors in an uproar. There is no doubt that schools, under pressure of losing millions of federal dollars, have tilted away from protecting the rights of the accused (and anyone can be accused). We all should certainly want the victims to be protected, but no one is protected when the innocent are convicted in a sham hearing. There are multiple cases out there that show just how ridiculous the implementation at some places has been, even at least one case where the "victim" did not make a report and admitted to consensual activities and stood by the "accused" (who was accused by a third party). The "accused" was STILL expelled.
So while I can't speak to this case and (full disclaimer) I am NOT a lawyer, as a citizen and a father to at least 1 each of both genders I am very concerned that everyone in these cases is afforded a fair opportunity on campus if they should ever be party to such events (God forbid) and that their safety and rights are protected.
Sorry for the length. I just wanted to provide some more information for those interested in it. Again, I don't pretend to know what happened here. I just wanted to help point to more information for anyone interested.
