All posts by KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

At Duke, “Intolerance” Can Cost You Tenure

Befitting its vision as one of the nation’s great universities, Duke declares that it grants tenure only to the best. Tenure at Duke, according to the university’s official policy, “should be reserved for those who have clearly demonstrated through their performance as scholars and teachers that their work has been widely perceived among their peers as outstanding,” with “good teaching and university service” expected but not in and of themselves sufficient.

Duke lists no other criteria for tenure. Until now.

Last week, the anti-campus free speech movement migrated from Yale, Missouri, and Amherst to Duke. This is, of course, a university with a record of indifference to student civil liberties: in the lacrosse case, dozens of faculty members unequivocally declared that something “happened” to false accuser Crystal Mangum; and after the collapse of this case to which they had attached their public reputations, dozens signed a statement affirming they’d never apologize. (They didn’t; instead, Duke spent millions in settlements and legal fees to, in part, shield the faculty from liability.)

In response to Yale/Missouri/Amherst-like student protests, Duke President Richard Brodhead joined, at a campus forum, the new dean of Trinity College of Arts and Sciences at Duke University, Valerie Ashby. (Ashby started at Duke this past July.) Brodhead, to his credit, openly opposed censorship, and cautioned that suppressing speech could eventually justify the silencing of the student protesters. At the same time, he neutralized this commitment by suggesting that Duke could institute a policy addressing “hate speech” (whose parameters remained undefined) modeled on the school’s due process-unfriendly sexual assault policy.

In the event, Brodhead didn’t have the last word on this issue. After he made his statement against censorship, Dean Ashby jumped in. She revealed a previously non-public university policy, announcing that untenured faculty is subjected to continuous evaluation for a university-approved level of tolerance. A video of Ashby’s remarks is here. Her key line: “You can’t be a great scholar and be intolerant. You have to go.” Chillingly, the assembled audience then burst into applause.

Nothing in Duke’s written tenure policy suggests that a “great” scholar’s failing to fulfill a definition of “tolerance” offered by Brodhead and Ashby constitutes grounds for denying tenure. Indeed, Ashby’s emotional concluding line—“you have to go”—suggests that the dean considers it possible to immediately dismiss those untenured professors who fail her tolerance test.

The academy’s recent debates about “tolerance” revolve around questions of race and gender. While Duke has now made clear that the “intolerant” can be fired, in her public statement, Ashby provided no clarity as to what specific views constitute dismissible offenses. For instance, would a junior professor who publicly opposed racial preferences be deemed “intolerant,” especially given Brodhead’s earlier criticism of tenured Duke professors whose research raised questions about the effects of racial preferences? Would a junior professor who urged the university to change course and provide due process to students accused of sexual assault be deemed “intolerant,” and thus worthy of dismissal under the new standards? If the Ashby principles had existed during the lacrosse case, could they have been used to terminate untenured Duke professors who criticized the Group of 88?

I asked two Duke spokespersons whether this new tenure evaluation policy had been provided in written form to untenured faculty; neither spokesperson replied. (Duke’s website contains no indication of a written policy, and Ashby defined the new standard only as “this is what’s tolerable here, this is what’s not,” without providing any degree of specificity.) At the very least, then since Duke’s new “tolerance” criterion remains appears to be wholly arbitrary, any junior professor who wants to stay employed needs to self-censor.

To date, Duke seems to be the only elite university that has abandoned all pretense that excellent scholarship, teaching, and service is sufficient for tenure, and held instead that these accomplishments can be trumped by a “tolerance” test imposed by the senior administration. Will other universities follow course?

CUNY’s Faculty Union and the First Amendment

The Supreme Court will consider two key cases relating to higher education this term. Fisher could curtail the use of racial preferences in admissions. Friedrichs could require higher-education unions to represent only those members who agree with the union’s usefulness.

As currently structured, public employee unions, including those at colleges and universities, must refund the portion of dues related to the union’s political activity. A central argument in the Friedrichs case is whether all activity of public employee unions, including those that represent professors at colleges and universities, constitutes political spending, from which employees who reject the union’s ideological message should be exempt.

It’s hard to imagine a better example of why the Supreme Court should side with the Friedrichs petitioners than the record of the CUNY faculty union, the Professional Staff Congress (PSC). The union’s leadership, headed by de facto President-for-Life Barbara Bowen, is intellectually stuck in 1968 or 1969, perpetually manning the barricades at the Columbia or Cornell campus protests. Its ineffective negotiating tactics (most recently union members showed up in the early morning, outside the CUNY chancellor’s apartment, banging pots and pans, and then fancied themselves 1960s-style protesters, engaging in a form of civil disobedience so comical that even the New York Times had trouble portraying it sympathetically) have helped leave CUNY faculty without a contract for more than six years.

The Brooklyn PSC branch just finished up a campaign for professors to use class time to distribute postcards that students will sign for later distribution to state legislators. The postcards demand more money from the legislature—but all of it from general appropriations, with no tuition increases. From a tactical angle, it might seem odd for a union that’s failed to deliver pay increases for years to publicly oppose at least one new revenue stream (a tuition increase) that might be devoted to faculty salaries. From an ethical angle, it might seem odd for a union to seek to use class time (for which, of course, students pay) for the students to engage in political activity.

From a constitutional angle, the union’s campaign targets one of the key issues in Friedrich—does a demand for a state legislature to take a specific act (in this case, spending more money, through more taxpayers’ resources) implicate the First Amendment? Does the union have a legal right to seize dues money from non-members to advance a policy position those non-members might oppose, even if the ostensible purpose is union-related rather than overtly political?

The union as a whole, meanwhile, is currently devoting union resources to a mobilization campaign seeking to authorize Bowen to call an illegal strike. (New York’s Taylor Law prohibits public employees from striking, while allowing public employee unions to deduct agency fees from non-union members. Bowen wants to set aside the first aspect of the Taylor Law but continue to enforce the second.)

As with the postcard campaign, this is a union activity that will have a political impact—if the union flouts the law, at the very least public resources will need to be devoted to increased NYPD activity protecting campuses, and likely to increased court action to prosecute the law-breakers. Does the union have a legal right to seize dues money from non-members to fund its mobilization campaign, with a long-term goal of violating state law?

The last time Bowen and her leadership team considered violating the law was 2005. In response, several dozen CUNY faculty members (including me) urged the union to follow the law and negotiate in good faith. The signatories also affirmed, “as individual CUNY professors, that we will abide by New York state law regardless of the ultimate course that the union chooses to take.” Hopefully, a comparable number of CUNY faculty members will speak up this time, as well.

Surely most public employee unions are not as extreme (and ineffective) as the PSC. But current law allows public employee unions like the PSC to spend non-members’ required agency fee payments on calls for state resources to be used in a particular way. In any other context, this would be recognized as constitutionally protected political speech. Will Friedrichs end this seemingly flagrant violation of the First Amendment?

Two Lawmakers Vote No to Safe Campus Act

A good rule of thumb when considering campus due process matters: If the Senate’s two most ardent foes of campus civil liberties, Kirsten Gillibrand and Claire McCaskill oppose something, the measure is probably worth a good look. The Safe Campus Act, which recently received criticism from the two senators, deserves more than a look.

It seeks to overturn the Office for Civil Rights mandate that colleges use the preponderance of evidence standard. It also says that while colleges can accommodate sexual assault accusers in any way desired (changing a class schedule, providing counseling, offering extensions on work), schools cannot initiate disciplinary proceedings unless the accusers report the allegation to police. The effect of the provision: ensuring that a student accused of sexual assault is judged on basis of evidence compiled by professionals rather than a campus Title IX bureaucracy,

Related: The Rape Epidemic on Campus Does Not Exis

Given their record on the issue, it’s no surprise that McCaskill and Gillibrand oppose the measure. Their arguments for doing so, however, are remarkable. Here’s McCaskill, in a quote that appeared in both Slate and Huffington Post: “You have this anomaly they’re proposing, where a young woman could be robbed at gunpoint and decide that she wanted to just try to get that person off campus and go to her university and they could take action under Title IX. But if she was raped, she would not be able to do that unless she made the decision to go to the police.”

This statement is strange. Does McCaskill—a former prosecutor—actually believe it would be a good idea for armed robberies to be adjudicated by the campus system? And could she really believe that victims of armed robberies could take action under Title IX? Even OCR has never described armed robbery as a crime that schools must adjudicate under Title IX.

More to the point, does McCaskill believe that student victims of armed robberies are currently being adjudicated through the campus disciplinary process? This is a bit like OCR head Catherine Lhamon’s recent, absurd claim by that campus’s tribunals’ deal with “drug dealing” cases. Imagine the resident Title IX investigator needing to jet off to Mexico to investigate the drug lords supplying her campus.

Related: Suing Over Star Chamber Hearings 

It seems that some foes of The Safe Campus Act are inventing a reality, falsely claiming that college disciplinary proceedings investigate all sorts of violent crimes—drug dealing, armed robbery, perhaps even attempted murder—to justify their calls for colleges to adjudicate the violent crime of sexual assault. In fact, the only serious felony that OCR wants colleges to handle is sexual assault.

Gillibrand, meanwhile, has said that she opposes the Safe Campus Act because the “goal of any campus sexual assault legislation should be to encourage [alleged] survivors to report crimes.” Indeed, it should—and this is exactly what the Safe Campus Act does. This is in contrast to campus rape groups like Know Your IX, with which Gillibrand regularly cooperate, and which have openly discouraged crime victims from going to police, suggesting that accusers who file reports with the “violent criminal legal system” might be deported.

Slate writer Christina Cauterucci is remarkably non-curious as to why sitting U.S. senators could oppose a bill seeking to have more crime victims report their crimes to police. “If the Safe Campus Act were truly about due process,” she muses, “plenty of other students’ rights activists would have rallied behind it.” Really? When has any campus rape group backed meaningful due process—provisions such as mandatory discovery, the right to cross-examination, a rule requiring colleges to turn over exculpatory evidence, allowing the accused student enough time to develop his defense?

Is this the result of imagining a campus reality that doesn’t exist?

A New Politically Tainted Survey on Campus Sexual Assault

The often-debunked statistic on campus sexual assault, that one in five women can expect to be attacked, has reappeared, inflated once more–this time to 23 percent–in a survey by the Association of American Universities (AAU), with the expected headlines from the expected quarters, such as The New York Times.

The general critiques of previous campus surveys apply to this one as well. First, if these numbers are true, it indicates an unprecedented wave of violent crime, yet neither the Obama administration nor college leaders are urging an increased law enforcement presence on campus. For instance, Harvard administrators called the survey “distressing” and expressed anguish—yet made no sign of calling in the Cambridge Police Department to deal with what these same administrators purport to believe is a campus crime wave.

Related: The Odd Sexual Accounting at Yale

Second, as Ashe Schow has repeatedly, and correctly, observed, framing questions in such a way to get a banner headline means the result will get a banner headline. That is, rather than asking students whether they had been sexually assaulted, this survey asked them a variety of questions that didn’t use the phrase, and then imputed sexual assault to the responses, to get the top-line figure. One of the data points from the survey revealed the problem with this approach. Of those who fit the researchers’ definition of sexual assault but didn’t report the offense, around 60 percent said they didn’t think what had happened to them was serious enough. (This number dwarfed the other reasons that students said they didn’t report, such as shame, a fear of being disbelieved, or a desire not to be re-traumatized.)

It’s simply inconceivable that a huge percentage of college women from some of the nation’s best universities don’t consider actual sexual assault to be serious enough to report—suggesting that whatever happened to these students, it wasn’t sexual assault.

The AAU survey has another significant problem, in that it appears to have dramatically oversampled one particular campus constituency—female students who reported a claim of sexual assaults to their campus. According to the latest Clery Act data, 5096 such students did so in 2013 (that number, of course, would include any males who made a sexual assault claim). Table 6 of the AAU survey informs us that, of the female undergraduates who responded to the survey, about 11 percent said they had been penetrated without consent—either due to incapacitation or force—and about one-fifth of these students had reported that offense to their college or university. (The precise reporting figures are 25.5 percent of those who said they had been penetrated without consent by force, and 14.4 percent of those who said they had been penetrated without consent due to incapacitation.)

Related: UC San Diego Loses in Sex Assault Case

As my colleague Stuart Taylor pointed out in a piece for, this survey data (conservatively assuming that students graduate in five years) would expect somewhere around 44,000 reported sexual assaults annually. Yet the most recent year’s Clery Act figures show 5096 reported sexual assaults. This massive disparity raises the likelihood that in a low-response survey (19 percent) that was already skewed 3:2 toward female respondents, those who considered themselves victims of sexual assault were far more likely to respond than non-victims. To their credit, the researchers concede the possibility of this over-reporting—just before they suggest that victims might not have wanted to participate in the survey, although none of the AAU’s internal data supports the latter conclusion.

One final point. Of the non-reporters, just under 25 percent said they didn’t report because the incident didn’t happen at school or that it had to do with school, presumably because the alleged perpetrator was a non-student. The Washington Post series from this summer also featured several students who said they had been sexually assaulted off-campus by non-students. Both data points are reminders that a non-trivial number of college students—even at primarily residential colleges, much less at non-residential institutions such as CUNY or some of the California state schools—are assaulted by people outside the campus community. The Obama administration and campus rape groups like Know Your IX, which champion a parallel, campus-based justice system, will do nothing for these students.

Top Reads from Minding the Campus

Weaponizing Title IX at Middlebury

Last week came two more court decisions involving due process and campus sexual assault. The first, which involved a student at Case Western Reserve University, had Judge Christopher Boyko (a George W. Bush appointee) ruling that it was plausible the accused student was innocent and the CWRU had manufactured inculpatory evidence—but there was nothing he could do to remedy the problem. The second, which involved a student at Middlebury College, had Judge J. Garvan Murtha (a Clinton appointee) issuing a preliminary injunction preventing Middlebury from expelling the student. You can read Judge Murtha’s decision here.

The Middlebury case was factually and procedurally complicated. But it offers three issues of importance:

(1) Title IX can be weaponized, with the accuser using the threat of a complaint with the Office for Civil Rights (OCR) to effectively force a college to do her bidding.

(2) In what seems like a first, a college assumed jurisdiction over a sexual assault case that involved an allegation filed by a student from another school.

(3) The case provides a rare behind-the-scenes view of the extraordinarily one-sided training that “impartial” campus adjudicators receive.

The Incident

In fall 2014, a male junior applied to study abroad for the semester; Middlebury’s study abroad program is run not by the college but by an institution called School for International Training (SIT), which is based in Brattleboro, around two hours from the Middlebury campus. SIT is a U.S. university, subject to Title IX, and Middlebury’s guidelines make clear that students in the program will be subject to SIT rulings for honors code violations while they’re abroad. The guidelines are silent about student conduct issues.

The background to the allegation was rather tawdry. On November 7, 2014, after what appears to have been a night of considerable drinking, the male student came back to his room with two female students in the study abroad program, at least one of whom wasn’t from Middlebury. His roommate was away, and so the three of them decided to sleep together in his room, pushing the two beds together, with the male student sleeping between the female students. At some point in the evening, the male student became sexually active with one of the female students (who initiated this contact remains in dispute). The other student (a friend of the female student, and a former romantic partner of the male student) eventually saw what was going on—and got up, retiring to her own room.

The incident was, at the least, embarrassing; it threatened the social equilibrium between the female student and her friend. But the female student soon claimed that the intercourse was nonconsensual; she filed a sexual assault claim through SIT. (There’s no indication she went to the police.) SIT, in turn, informed Middlebury that it planned to investigate the allegations; it then would conduct a hearing according to its own policies (which conform to OCR guidelines). Middlebury made no attempt to assert jurisdiction over the case. SIT convened a hearing at which both parties, and the other student who was in the bed, testified. The hearing also considered contemporaneous text messages between the three. Both the transcript of that hearing, and the text messages, were not included in the public documents filed in the case, so it’s impossible to comment confidently about the merits of the allegation. But the SIT hearing found the male student not culpable for sexual assault. The accuser elected not to exercise her OCR-right to appeal the finding at SIT.

That decision, it would seem, should have ended things. An accused student had been charged. A hearing had been held, at which he was acquitted. The accuser did not appeal.

Middlebury Intervenes

But the accuser elected to pursue another path. She still didn’t go to the police. Instead, working through the Title IX coordinator at her own institution, she wrote to an administrator at Middlebury, with an ill-concealed threat: “I am pursuing,” said she, “a complaint with the office of [sic] civil rights.” And suddenly Middlebury, which heretofore had unquestioningly accepted SIT’s coordination of the case, decided that it would conduct a second investigation—even though the accuser wasn’t a Middlebury student. To the best of my knowledge, this is the only publicized case since issuance of the “Dear Colleague” letter in 2011 in which an institution has asserted jurisdiction over a claim that didn’t involve two students from the college. If established as a precedent, the expansion of the parallel justice system championed by the Obama administration would be dangerous, and massive.

In addition to her threat about filing a complaint with OCR, the accuser passed along information about the case that she said corroborated her view of events. She also claimed that SIT’s investigation had violated Title IX because SIT’s investigator hadn’t spoken to her academic advisor (why that would be relevant the accuser didn’t say) and hadn’t spoken to unspecified witnesses (what these witnesses might or might not have said the accuser didn’t tell Middlebury). Though OCR, not Middlebury College, has authority to decide whether SIT’s actions conformed to Title IX, Middlebury Dean Karen Guttentag had heard enough. The college would effectively set aside SIT’s finding, the dean later testified, based on the accuser’s “perceptions of SIT’s investigation and hearing process.” You can read the dean’s affidavit here.

This rationale was nothing short of extraordinary. The files contain no indication that Guttentag had asked anyone at SIT whether the accuser’s “perceptions” of SIT procedures were based in reality. But with a clear threat that if Middlebury didn’t go along, the accuser would add the college to her already-filed claim against SIT, the college leapt into action, more than two months after the allegations and well after SIT had already acquitted the student.

Guilt and Middlebury

Middlebury’s decision meant that the accused student would be subjected not only to a double-jeopardy scenario, but a very different procedure. Unlike SIT, Middlebury has adopted the Obama administration’s preferred approach of bypassing a hearing (lest it re-traumatize an accuser who, at that stage of the process, the college doesn’t know is telling the truth) and turning things over to a single investigator. The investigator submits a report to a college administrator, who then interviews the accused student, but in every case since 2012 in which the investigator had branded the accused student a rapist, the college has accepted the finding. Middlebury referred this case to an investigator named Nell Coogan, whose website indicates no background in criminal investigation or law enforcement.

Middlebury has clear ideas on how sexual assault investigations should be conducted; the firm Margolis Healy trains college officials on the matter. The firm’s guidelines, as based on a 2012 training session, seem designed to ensure that the college gives every conceivable benefit of the doubt to the accuser. You can see the guidelines here; note how heavily Margolis Healy relies on the now-discredited researcher David Lisak, who is mentioned eight times, to explain how colleges should respond to sexual assault allegations.

Investigators, Margolis Healy instructed Middlebury officials, must not approach the case with “skepticism.” Indeed, they must “start by believing” the accuser. The discussion with the accuser must not involve the investigator interrogating her; “This is not the time for ‘just the facts.’” (If not then, when?) The investigator must avoid “victim blaming” questions, such as asking the accuser why she did something. “Use what we know” about campus sexual assault—that the “non-stranger sexual offender” says to himself, “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.” While the investigator must “start by believing” the accuser, the Middlebury official must begin by wondering if the accused is “who he said he is.” Margolis Healy counseled Middlebury investigators against using the term “accuser” (“victim” or “survivor” is preferred).

The report prepared by the investigator “should not include . . . consensual language” or anything indicating “mutual participation.” But what if the intercourse was consensual, or involved mutual participation? Nor should the investigator’s report include the following language: The “victim has inconsistencies with her story.” But what if she does? Nor should the report conclude that “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect.” But what if the accuser isn’t credible? According to Middlebury’s training, that outcome seems impossible.

With this background, and given the looming threat of a Title IX complaint if Middlebury didn’t do what the accuser wanted, the college returned a guilty finding, and recommended expulsion days before the accused student was to begin his final year at Middlebury. The accused student sued, noting that the college’s decision not only would end his Middlebury career, but also would rob him of a job offer that he had already lined up after graduation.

The Court Case

In filings before Judge Murtha, the two sides partially re-litigated the case. The accused student contended that SIT’s finding was correct, and that the accuser had substantially enhanced her allegations over the course of the inquiry. Middlebury countered that the accused had changed his story, and denied that kicking the accuser out of school and costing him his job would constitute irreparable harm for him. Middlebury administrators and its investigator also produced unintentionally comical affidavits claiming that the guilt-presuming training that Middlebury arranged for them to receive had no impact on how they investigated sexual assault allegations.

Judge Murtha understandably was skeptical about college officials’ newfound commitment to objectivity. His ruling was a preliminary one, but he noted that “Middlebury’s policies did not authorize a second investigation and de novo evaluation of the allegation of sexual assault after it had been decided in Plaintiff’s favor by SIT, the sponsor of the study abroad program during which the alleged misconduct occurred, to whose discipline Plaintiff was subject.”

The accused student thus can complete his senior year. But how will Judge Murtha rule on the merits of the case?

Expel 10 If One or Two Are Guilty of Rape?

At a House oversight hearing last week, Representative Jared Polis (D-Colorado) seemed deeply troubled by two arguments raised by FIRE’s Joseph Cohn: that trained police, rather than campus bureaucrats, are better equipped to investigate felony offenses; and that the current campus tribunals deny meaningful due process for students accused of sexual assault. In response, Polis asserted, “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”

The Colorado congressman has now retracted parts of that assertion, in an op-ed that raises more questions than it answers. Polis writes that he “misspoke” when he “went too far by implying that I support expelling innocent students from college campuses, which is something neither I nor other advocates of justice for survivors of sexual assault support.” (Polis doesn’t explain why, if that’s the case, campus rape activists in the audience applauded his remarks.) But his chief justification for his policy shift appears to be tactical: He states that his “remarks have detracted from the substance of this debate.” (In fact, the activists’ applause provided a remarkable, if chilling, clarifying moment.)  Moreover, his op-ed leaves the impression that he simply spoke hastily or emotionally in a “back and forth exchange” the hearing, even though he reiterated his position afterwards in an e-mail conversation with Reason’s Robby Soave. Did he misspeak (or, I suppose, “mis-write”) to Soave, as well?

It appears, nonetheless, that Polis no longer believes that colleges should expel ten students accused of sexual assault if only one or two of them is guilty. But what about his other hearing statements?

Polis’ retraction comes in a defiant op-ed in which he expresses strong opposition to the concept that police, rather than campus bureaucrats, should handle the investigations of campus sexual assault. This is, he writes, a “deeply dangerous idea that demonstrates a cursory and superficial understanding of the issue.” (The congressman doesn’t say if he believes that campus bureaucrats should handle other serious student-on-student felonies, such as attempted murder or felony assault.) He also defends the Obama administration’s insistence that these campus hearings use the preponderance-of-evidence threshold.

In the hearing, Polis mused that colleges could use an even lower burden of proof—“reasonable likelihood,” which he defined as 20 or 30 percent chance of guilt. Does he still believe this? His op-ed doesn’t say.

In the hearing, Polis minimized the stakes for students accused of sexual assault. “For crying out loud,” he chuckled sarcastically, the worst that could happen to a falsely accused student would be transferring to another institution. Does he still believe this? As Eugene Volokh pointed out, Polis’ statement seemed either supremely cynical or flat-out misleading—since it would envision universities simply passing around actual rapists, or would involve Polis deliberately minimizing the difficulty of a transfer (not to mention subsequent employment opportunities).

Finally, Polis offers a new argument in his op-ed. “For those of us also concerned with the rights of the accused,” he writes, “dragging their name through the newspaper as an accused rapist through a criminal justice process will haunt them forever, even if they are found not guilty.” It’s heartening to see that Polis has suddenly discovered a concern with the rights of the accused. He oozed contempt toward Cohn, the only witness at the hearing who focused on due process for accused students; indeed, he suggested at the hearing that due process was irrelevant, since the accused student couldn’t be jailed by his college. (In his op-ed, he equates Cohn’s position with that of “most people who don’t know much about this issue”—an odd position for this newfound champion of rights of the accused to take.) In the event, Polis reiterated his belief that due process wasn’t the appropriate framework to consider the issue in his post-hearing e-mail discussion with Soave. Does he now repudiate that, as well?

Yet Polis’ only defense of the accused students’ due process—that the rules of campus disciplinary matters will keep their names out of the newspaper—is nothing short of extraordinary. The secrecy of campus tribunals provides no protection for the accused student; indeed, the secretary undermines due process. The closed nature of campus tribunals means it’s almost impossible for the media to discover (or the campus community to understand) that universities are branding students rapists after processes in which the accused student lacks meaningful representation from a lawyer, can’t cross-examine his accuser, and often has no right (or ability) to exculpatory or impeaching evidence.

Indeed, if I could recommend only one reform of the campus disciplinary process, it would be making hearings open to the public, to expose the kangaroo courts for what they are. As Louis Brandeis maintained, sunlight is the best disinfectant. It appears as if Congressman Polis, on the other hand, prefers the darkness.

U. of Michigan Screws Up in ‘Rape’ Case

On Friday, a federal court filing revealed that University of Michigan had settled its lawsuit with Drew Sterrett. The case, first exposed by Emily Yoffe in her sensational Slate article, featured Michigan branding Sterrett a rapist despite overlooking critical exculpatory evidence (including from the roommates of Sterrett and the accuser) and very troubling conduct by the Michigan bureaucrats who conducted the investigation. Yoffe  returned to the question in an excellent summary, hearing from both sides, of the conclusion to the case.

News of the settlement was first reported by David Jesse, of the Detroit Free Press. Jesse’s article could serve as a case study in how poorly the mainstream media covers campus sexual assault. A Free Press reader who didn’t read Yoffe or didn’t pore through filings on PACER would come away believing that Michigan had somehow wronged the accuser, and not Sterrett.

The article noted the terms of the settlement (setting aside of the university judgment, Sterrett agreeing to transfer, and a mutual non-disparagement clause). As already seen in settlements by Xavier, St. Joe’s, and DePauw, universities settle due process lawsuits not from the goodness of their hearts, but when they’re worried about losing. But Jesse provided none of this context—by, perhaps, interviewing a law professor. Indeed, the article didn’t even mention that Judge Denise Hood (despite seeming desperate to accommodate the university’s position) had kept alive Sterrett’s due process claim that “he was denied a meaningful hearing” by the university.

Indeed, a reader of Jesse’s article would have had no idea of the central issues in the lawsuit. Sterrett—as Yoffe’s article best explained—alleged that the university’s deeply flawed procedures (which included not telling him of the specific charges against him and pressuring him not to consult a lawyer) produced a flawed result (which included overlooking key third-party evidence that contradicted the accuser’s tale). Jesse mentions none of this, and instead offers seven sentences about whether or not Michigan encouraged the accuser to file a police report—an incidental element in Sterrett’s suit.

Sterrett’s lawsuit brought to the fore more evidence missed by Michigan. While the university’s judgment relied on two of the accuser’s friends, who said she told them that she tried to push Strerrett off of her, she admitted under oath in a lawsuit deposition that she had said no such thing. Yet Jesse risibly implies that Sterrett wanted to cover things up: the settlement, the Free Press reporter writes, means Michigan “cannot do any further investigation into the case.”

Jesse includes three paragraphs of comments from the accuser, to whom he grants the cloak of anonymity, denouncing the settlement. And he adds another three paragraphs, with similar sentiments, from the accuser’s attorney. The accuser—after a process that Michigan so distorted in her favor that the university ultimately couldn’t defend it in federal court—has now threatened to file a Title IX complaint.

Finally, the original version of Jesse’s article improperly claimed that Michigan found that Sterrett had committed a “rape.” The fiction of the university process, of course, is that schools pretend that they’re only addressing a college disciplinary code violation when they investigate rape allegations.

Other than each of these matters, the piece was a model of journalistic objectivity.

Office For Civil Rights Goes After Michigan State

However harmful the effects of the “Dear Colleague” letter to colleges and universities from the Education Department’s Office of Civil Rights, the document is a floor, not a ceiling, to OCR’s efforts to weaken campus due process. Resolution letters between OCR and various universities have allowed the agency to go well beyond the “Dear Colleague” letter’s terms. The Yale letter approved the “informal” process that allowed the university to brand a student a rapist without the accused having an opportunity to present evidence of his innocence. SMU and SUNY letters authorized the re-opening of cases where the accused student had been found not guilty, and oozed contempt for the idea that trained law enforcement personnel, instead of campus Title IX bureaucrats, should investigate sexual assault allegations. (Hans Bader has analyzed other resolution agreements, such as that with Tufts.) And the Montana letter envisioned a “blueprint” to weaken free speech on campus.

OCR’s most recent target, Michigan State, opens up a new inroad in the assault on campus due process.

Student A

A student identified only as “Student A” reported her alleged assault to the police, but not to the university, which instead learned about her allegations through media reports. The allegations weren’t very credible, as the police never filed charges. Nonetheless, when OCR discovered the charges, it told MSU that it needed to independently investigate the allegations. The university’s own investigation reached the same conclusion as the police—the accuser’s claims were not credible.

MSU nonetheless punished the accused students. As its investigation proceeded, the university forbade the accused students from contacting the accuser, and moved them out of their rooms to a different dorm, apparently well away from the accuser’s area of campus—which addressed the main concern the accuser said she had. The accused students apparently didn’t try to re-enter their old dorm, and the dorm to which they were reassigned was (according to the OCR letter) far away from their dining hall and their classes.

The accuser nonetheless cited the move in a Title IX complaint to OCR, apparently operating from the premise that students accused of sexual assault should be kicked out of all dorms, whether or not the accused students were guilty, and before any investigation had occurred. The accuser also claimed that the accused students violated a no-contact order—because, she reported, she had entered a university building and peered into a private tutoring room (through a glass panel in the door), where she spied the accused students meeting with a tutor. For reasons unexplained, she then stood outside the closed door for 30 minutes. There’s no evidence the male students saw the accuser until they left the room, but she interpreted their encountering her—after, to reiterate, she waited 30 minutes in a hall directly outside a room in which they were studying—as a violation of the no-contact order.

Even OCR conceded that this episode—which was, after all, directly initiated by the accuser—could not be held against the accused. That such an episode formed a key element of the accuser’s Title IX complaint demonstrates why reporters should be very skeptical when OCR reveals there’s a Title IX inquiry against a school, but refuses to release the actual complaint so outsiders can see the specifics.

Despite the record, OCR concluded that MSU had violated Title IX in its handling of Student A’s case, because the university took too long to conclude that Student A’s allegations were unfounded. This delay in initiating an investigation (based on a complaint the accuser never filed with the school) violated Title IX. OCR also expressed concerns about the structure of MSU’s policies, which at the time “required that a disciplinary hearing be conducted by the student judicial body before any action could be taken against a student accused of sexual harassment.” But the agency didn’t find a Title IX violation here, since by the time of the resolution letter, the disciplinary hearing requirement (which should, in fact, be an obvious form of due process) had been eviscerated.

To reiterate: Student A’s allegations proved unfounded, and she never filed a complaint through the university process.

The Campus Climate

As described in the resolution letter, Michigan State is a university whose leadership is obsessed with sexual assault. (According to Clery Act figures, there were 27 reported sexual assaults in 2013 at MSU, from an enrollment of about 35,000 students.) In 2013, the university initiated what it called a “No Excuse for Sexual Assault” campaign, designed in part, according to the OCR letter, “to debunk common myths regarding sexual assault.” MSU “distributed posters with images and messages intended to dispel various myths regarding sexual assault”; handed out shirts, stickers, buttons, and brochures with the slogan at various university events; developed a “No Excuse” Facebook page; created a special help line for students who wanted to report a sexual assault; and translated all of these materials into different languages—including Korean, Arabic, and Chinese. Students interviewed by OCR recalled these initiatives, along with material from the two required training sessions on sexual assault directed at all incoming students. (Athletes receive additional training.)

It appears that MSU’s training is creating some myths, rather than dispelling them. In a survey of all first-year and transfer students, 74.9 percent (incorrectly) said it was “false” that “someone can still give consent for sex if they are using alcohol or drugs.”

Yet to OCR, at Michigan State, a “sexually hostile environment existed for and affected numerous students,” while “the University’s failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.” The agency seemed troubled by findings (from campus surveys) that students would be more likely to report sexual assault to the police than to the university office that handles college investigations—as if, somehow, this is a bad thing. The resolution letter also went out of its way to include extraneous comments from random students: “OCR heard,” for instance, that a student had reported being raped at a fraternity shortly before the investigator came to campus. Well: Had she? Though this information presumably would have been very easy to ascertain, OCR investigators seemed uninterested in finding out. Another: “Many students referenced a walkway on campus near the river (the river trail) as being routinely referred to by students as the ‘rape trail.” This sounds ominous, until OCR informs us that this reputation dated from events in the 1970s or 1980s—that is, before 99.99 percent of MSU’s current undergrads were born.

Finally, OCR considered it a sign of a troubled campus culture that “only 7.4% of students were able to correctly identify the name of the University’s Title IX Coordinator,” while “71.5% of the students surveyed correctly identified the University’s head basketball coach.” That this churlish item made it into an official letter from a federal agency is astonishing. Given that miniscule percentages of students know the identities of even high-ranking academic bureaucrats, I wonder how many students know the name of the MSU provost, or the dean of the humanities (who are, after all, a far more appropriate comparison group for the Title IX coordinator). It’s remarkable, in fact, that according to the survey, around 2000 MSU students know the name of a mid-level bureaucrat at their university.

And what of the language that “71.5% of the students surveyed correctly identified the University’s head basketball coach”? Michigan State actually has two head basketball coaches: Tom Izzo, longtime coach of the men’s basketball team (including in 2000, when his team won the national title); and Suzy Merchant, who in her eighth year has emerged as one of the Big Ten’s best women’s basketball coaches. The 71.5 percent figure obviously refers to Izzo; by describing the university has having only one basketball coach, OCR—the agency devoted to gender nondiscrimination in athletics—chose to overlook the women’s basketball coach to make its political point.

Policy Abandoned

In early 2012, during the course of the investigation, MSU abandoned its previous policy (which required a hearing) that vexed OCR, and replaced it with a modified version of the single- investigator model. Student allegations of sexual assault are directed to the Office for Inclusion and Intercultural Initiatives (or “I3”). A I3 investigator speaks with the accuser, accused, and any other relevant witnesses, looks at any evidence the two sides present, and then produces a report deciding whether it’s more like than not that the accused is a rapist. The accused student has no opportunity to cross-examine his accuser—indeed, he doesn’t even see the evidence compiled against him until the investigator produces his report.

Once the I3 investigator produces his report, the accused student can appeal to a hearing—but under very circumscribed conditions. At the hearing, the OCR’s resolution letter noted, “neither side can ask questions of each other”’—and the accused student now has the burden of proof, a burden that goes well beyond the preponderance of evidence. He must “show that the I3 decision was arbitrary and capricious or had procedural problems.”

Such a one-sided procedure unsurprisingly has produced one-sided results. The OCR letter reported that MSU administrators indicated “that they have not yet had a case where the administrator or hearing board believed that the respondent met his or her burden of proof.”

In more than three years, then, MSU’s procedure has never resulted in an accused student being found not culpable once an investigator has decided otherwise.

OCR’s response? Michigan State procedures tilt too heavily—in favor of the accused. The agency found “that the University has not provided a prompt and equitable grievance procedure for the resolution of student and employee complaints alleging any actions prohibited by Title IX.” Investigations, OCR sniffed, take too long—at 90 days, with an additional 30 days to write.

OCR also faulted MSU’s policies for failing to unequivocally state that “the University will take steps to minimize the burden on the victim” regarding “interim measures while the investigation is pending.” But, of course, while “the investigation is pending,” there is no victim—the allegation is alleged, not established.

Unlike the SMU and SUNY letters, the Michigan State resolution letter doesn’t explicitly endorse any new, troubling policies. But it sends a most troubling message: even a university with MSU’s one-sided campus climate, and with MSU’s one-sided policies, will be found in violation of Title IX by the current OCR.


The College Board’s new AP U.S. history standards (APUSH) remain in the news. A recent piece by Stanley Kurtz suggests that despite the revisions, the standards remain unsatisfactory and will prevent the instruction of more traditional topics in U.S. history. A piece in EDWeek, on the other hand, has quotes from historians mostly praising the revisions, along with a complaint from a so-called human-rights writer, who suggests that the changes will “foster divisiveness” by failing to sufficiently stress racial tension throughout U.S. history.

A reminder on the nature of the controversy. The 2014 standards generated considerable criticism (including from me) primarily on four grounds, the last three of which I shared:

(1)   The guidelines inappropriately stressed liberal themes at the expense of conservative ones.

(2)   The guidelines sought to impose a race/class/gender pedagogy, to the extent of diminishing the role played by important figures in U.S. history, such as the Founders.

(3)   The guidelines’ addition of a unit preceding the British settlement of North America was faddish.

(4)   The guidelines troublingly conflicted skills with content, suggesting that students could learn a “skill” (such as reading primary documents) regardless of the content of the skill-related item.

I had argued that the second and fourth items were the most significant defects. The fourth brought to mind the dispositions battle, in which NCATE touted a skill “disposition to promote social justice” as a way of denying academic freedom the students. Similarly, the implication was that a student could master the skill through reading Federalist 10—or by reading the diary of an 18th century midwife, suggesting that the two were somehow of equal importance.

But the revised version of the standards, as I previously noted, eliminates many of these problems. The skills/content conflation is gone, and the standards add a section on the importance of the Founders. Language is toned down; one example cited in EdWeek is the cutting of a description of Ronald Reagan’s rhetoric as “bellicose.” I’ve probably used such a description in a lecture in the past—but guidelines should strive to be as neutral as possible in language, and the shift was appropriate. The inclusion of the pre-British settlement section remained, although this material would better be covered in a European history class.

Kurtz, however, suggests that these changes are little more than token. He makes three principal argument. First, he notes that the revised guidelines continue to give insufficient attention to diplomatic and military history. I agree. But, as Kurtz also notes, “The most significant changes to the APUSH framework are the removal of controversial phrases, along with a general paring down of the content.” Paring down the content means that teachers can—and must—look to state educational guidelines, which have a much greater role for traditional topics. I would prefer to see more respect for state guidelines, but that wasn’t likely.

Second, Kurtz cites the experience of an outstanding AP U.S. history teacher, who went to a teacher-training session and got exposed to a lovefest for Howard Zinn. I’ve no doubt that this occurred as described—though I’ve done many of these seminars and have never had such an experience (here’s a link to my latest session, on the Cold War)—but even if APUSH were wholly revised, a Zinn-fest would still be possible.

Third, Kurtz argues that the new guidelines insufficiently stress American exceptionalism. The problem here, however, is that this phrase has become quite ideologically charged. (For that reason, I don’t believe I’ve ever used it in my own right in a class lecture, though of course I’ve noted when figures covered in the class, such as Woodrow Wilson, have operated under such a theory.) There’s also no historiographical consensus on what American exceptionalism is, or whether it’s even accurate to say that it exists. Accordingly, I didn’t expect to see the term play a large role in the revised standards, and am not surprised at the outcome.

Overall, with the exception of the pre-settlement era addition, I continue to think the revised standards are a vast improvement over their predecessor.

Judge Ends Mockery at Chattanooga

Earlier this week, Tennessee Chancery Court Judge Carol McCoy overturned the University of Tennessee-Chattanooga’s decision to brand one of its students, Corey Mock, a rapist. The case attracted an unusual amount of attention.

Mock had been a star wrestler for the UTC program. His accuser, Molly Morris, had gone public with her version of events at a left-of-center publication. And Mock’s father was fired from his position as University of North Carolina wrestling coach after starting a blog defending his son. UTC claimed that performance issues dictated the decision; the former coach plausibly contended that the university, center of some of the most extreme victims’ rights activism of any campus, retaliated for his position on his son’s allegations. The case is illustrative of three important trends in the contemporary debate: the significance of the “Dear Colleague” letter; the dangers of the “affirmative consent” standard; and the role of athletes.

You can read the decision here.

The specifics of the case are typical; the two students met through Tinder, a social media site, attended a party together, and had intercourse. Both had been drinking. Morris subsequently claimed that she had been drugged—with the implication that Mock had drugged her—but had no medical evidence to corroborate the claim. Six weeks later, Morris filed a sexual assault complaint through UTC’s system. But the administrative law judge who heard the case, Joanie Sompayrac, sided with Mock.

Before 2011, that would have been the end of the case. But the “Dear Colleague” letter from the Department of Education’s Office of Civil rights required colleges to institute a de facto double jeopardy principle, and allow accusers to appeal not-guilty findings. Morris took advantage of this shift, and appealed to UTC chancellor Steven Angle. Angle made no decision, and instead asked the administrative law judge to reconsider the ruling. Sompayrac got the message, and on the basis of the same facts that led her to find Mock not guilty, she then branded him a rapist.

Mock appealed the new guilty finding to Chancellor Angle, but in December 2014, Angle denied the appeal. He did so, however, on a slightly different basis than had Sompayrac—perhaps because he recognized the weakness of a ruling that deemed a student guilty on the basis of the same 49 findings of fact that the same administrative law judge previously had used to find the student not guilty. Angle, for his part, argued that Mock had failed to prove that he had obtained affirmative consent—that is, that Mock, not UTC, had the burden of proof in the initial hearing. UTC hadn’t adopted a “yes means yes” policy, but Angle inferred it through various provisions in the school’s code, and in other writings.

In what appears to be the first decision by a judge confronting affirmative consent head-on, Judge McCoy expressed strong doubts that such a standard ever could be constitutional. UTC’s policy, she noted, “erroneously shifted the burden of proof” to Mock to prove his innocence. As a general rule, McCoy continued, “The ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” How, she wondered, could Mock have defended himself? Through a secret video of the encounter? Such a policy, McCoy concluded, “is flawed and untenable if due process is to be afforded to the accused.”

Finally, one of the general claims about college disciplinary debates is that athletes receive special treatment. That’s undoubtedly true—for men’s basketball players and football players, in some circumstances, if they play for one of the top teams in the ACC, SEC, Big XII, Big Ten, or Pac-12, and if they’re good players. But the vast majority of college athletes are like Mock—participants in non-revenue producing sports. The idea that they receive favored treatment given the current ideological climate on campus, to borrow a phrase, strains credulity.

The Odd Sexual Accounting at Yale

Since 2011, as part of its settlement with the Department of Education’s  Office for Civil Rights, Yale has published biannual reports that provide brief summaries of each sexual assault allegation at the university. (Yale is the only university in the country to have such an obligation.) I’ve analyzed each of these reports, issued by the office of Deputy Provost Stephanie Spangler.

Previous reports have revealed such items as: the “resolution” of a complaint against a professor, whose chair then would “monitor” him, even though he was never even informed of the complaint; odd investigations based on anonymous complaints—and sometimes with anonymous targets; concerns that Yale was using Title IX to trump university members’ free speech rights; the punishment of a student that even Yale’s due process-unfriendly system had found not culpable for the allegations against him; and students charged under a vague standard that included “emotional or economic abuse” by “roommates.”

The newest Spangler Report, covering all incidents in the first six months of this year, has just been released. The report is unusually bare-bones, even by Yale’s standards, but it does provide insight on two broader statistical debates about sexual assault on campus.

The 1-in-5 Claim

Between January 1 and June 30, six Yale undergraduates, or 0.2 percent of the 2678 female undergraduates at the university, filed sexual assault complaints with the school. (Three graduate students did so, and there were three complaints filed by non-Yale affiliates.) Of these complaints, only three were reported to the Yale Police Department. (None appear to have been reported to the New Haven Police Department.) Three more were formally handled through Yale’s University-Wide Committee (UWC), a due process-unfriendly procedure that I’ve written about previously. In sharp contrast to past years, zero cases were handled through informal complaints, a process that doesn’t promise an accused student the right to present evidence of his innocence. (This is the process that ensnared former Yale quarterback Patrick Witt.) But the newest Spangler Report suggests that the informal complaint procedure has effectively been replaced by the Title IX coordinator, from whom seven of the thirteen overall cases proceeded.

To place that statistic in context: the majority of sexual assault cases in the first six months of 2015 were handled by a Yale administrator whose job depends in part on keeping the university in OCR’s good graces, and without any procedural protections, of any type, for an accused student. (Under Yale procedures, an accuser can still file a formal complaint after working through the Title IX office.)

What of the sexual assault cases filed by undergraduate students? One of the six, the Spangler Report reveals, was simply withdrawn. So the university actually considered five undergraduate sexual assault cases in the first six months of 2015.

Of these five, one undergraduate was found culpable of “nonconsensual sexual activity.” His punishment? Probation and received a written reprimand—making it hard to believe the allegations he faced resembled what most people consider to be sexual assault. A second case couldn’t be substantiated by even the Title IX coordinator. A third accuser made a complaint (of “sexual touching”), identified the alleged party, but then withdrew the complaint—after which point the accused student nonetheless received a minor punishment (having to undergo “training on sexual consent”). A fourth case is still pending. The fifth involved a case in which the person accused, who was arrested by the Yale Police Department, wasn’t a Yale student.

This list confirms Spangler’s caution that Yale defines sexual assault in a way that “encompass[es] broad ranges of behavior,” since the university “uses a more expansive definition of sexual assault” than does the federal government (or the New Haven Police Department). Indeed, of the five January-June cases in which a Yale undergraduate alleged that another Yale undergraduate sexually assaulted her, none would appear to constitute “sexual assault” as the term is commonly understood.

According to the university’s own figures, then, the 0.2 percent sexual assault percentage is, if anything, too high for the January-June period. The commonly cited 1-in-5 statistic, on the other hand, would suggest that there should have been at least 67 complaints of actual sexual assault—instead of, at most, (depending on what precisely was charged in the case involving the non-Yale accused party) one. As we all know, sexual assault is an under-reported crime. But it would seem there are few environments nationally as favorable to victims filing complaints than the Yale University bureaucracy—which, after all, dramatically expands the definition of what constitutes sexual assault and still can’t get anywhere close to what would be expected from the 1-in-5 figure.

The Reports and False Rape Claims

A robust debate (from which I’ve largely abstained) exists over the question of what percentage of college rape reports are false. But clearly some percentage are false; even the now-discredited David Lisak conceded the falsity of around 6 percent of rape claims. It’s plausible to infer that the percentage of false claims on college campuses would be higher than in the general public. A situation in which communities of 18- to 22-year-olds living together might provide motives for false claims that are less common elsewhere. (Consider the Amherst case: making an almost certainly false claim gave the accuser an excuse for seducing her roommate’s boyfriend to the friends she lost, and an opportunity to fit in in with her new circle of friends, who were extreme victims’ rights advocates.) In any case, there’s no reason to believe that false rape reports occur at a lower percentage on college campuses than elsewhere.

Since July 2011, according to the Spangler Reports, there have been at least 92 sexual assault claims filed by Yale students (undergraduate and graduate), along with 18 cases of “intimate partner violence,” which the reports started distinguishing from sexual assault claims beginning in July 2013. With around 100 claims, therefore, it stands to reason that at least a few Yale students would have been found to have filed false reports. Instead, since July 2011, there have been zero students disciplined for filing a false report. There have been zero students who even faced a hearing for filing a false report.

The current Spangler Report does, however, contain a first: the disposition of false report allegation. The outcome? “The UWC found no factual basis for the respondent’s complaint and therefore did not accept jurisdiction.” In other words, the student didn’t even have the opportunity to present his evidence in a hearing. This is one of only five sexual assault-related claims since 2011 in which the Yale UWC has refused to “accept jurisdiction.” The other four involved two cases where the accused student had already withdrawn from the university; one where the accuser hadn’t provided sufficient information in her complaint; and one where an accuser appears to have refiled a claim that the UWC already had adjudicated and rejected. The current rejection, therefore, is the only one for which the UWC declined to proceed because it wouldn’t consider the specific allegations made by the student.

This result isn’t in any way surprising. Enormously powerful incentives exist for universities not to adjudicate false report cases, ranging from the benign (a fear that doing so might discourage actual victims from reporting) to the less defensible (an administration’s fear of almost-certain protests from certain quarters of the faculty, campus activists, or their allies in the media). But Yale’s handling of this issue provides a reminder that in the university environment, there’s virtually no possibility that a student who files a false rape report will be punished. That the system, on the other end, provides insufficient procedural protections for a falsely accused student to defend himself dramatically increases the chances of campus tribunals rendering unjust results on this issue.

Finally, the current Spangler Report contains an item that illustrates the potential danger to all in an environment like the current one on college campuses. An administrator informed the Title IX coordinator of a “rumor” that a graduate student inappropriately “engaged in personal relationships with undergraduate students.” Again: a rumor. The Title IX officer investigated and concluded that she “could not substantiate the allegations.” But she nonetheless “referred the matter to the respondent’s supervisor for additional oversight.”

Maybe the student behaved inappropriately. But it’s possible that this was an allegation leveled with ill intent. Either way, Yale’s Title IX office took an action that at least risked damaging the relationship between a graduate student and his supervisor—a relationship that’s critical to the student’s future career prospects—based on what the Title IX coordinator herself conceded was an unsubstantiated rumor.

The New History Guidelines Are Better

I previously wrote about the new AP U.S. History guidelines (APUSH). The guidelines generated considerable criticism—in so small part because they seemed intent on evading state guidelines regarding the instruction of U.S. history. Basically: the earlier guidelines heavily emphasized themes of race, class, and gender, at the expense of more “traditional” types of U.S. history that most states expect their high school students to confront. And the earlier guidelines strongly implied that AP history teachers could teach required “skills” (such as, for instance, the “skill” of experiencing primary sources) through content as varied as the Federalist Papers or an obscure diary.

A new version of APUSH has appeared, one that responds to some of the criticism made. Below are some initial reactions.

(1) The most striking change is the insertion of a free-floating two paragraphs about founding documents, which the guidelines assert help “students better understand pivotal moments in American history.” Accordingly, the guidelines note, teachers have the option of teaching the document in depth.

This is a fairly significant change from the first APUSH version. Colorado professor Fred Anderson, co-chair of the original APUSH committee, remarked that the guidelines were designed to result in high school students “receiving instruction equivalent to lower-division history survey courses offered in university and college settings.” Since in most college history departments students can now graduate without encountering the founding documents, it seems that the APUSH modifications move away from the original goal of replacing state history standards with those more common in college history departments.

(2) The new APUSH guidelines are structured differently. The original APUSH began with a very detailed discussion of “skills,” which frequently had suggested content items attached to them, in ways that seemed to invite a trendy response. For instance, the original APUSH guidelines offered two content examples through which teachers could satisfy skill #1 (historical causation). They could examine a foundational aspect of U.S. history—the differing economic structures between North and South, balanced against the short-term congressional gridlock that led to the Civil War. Or they could “explore the roots of the modern environmental movement in the Progressive Era and the New Deal, as well as debate underlying and proximate causes of environmental catastrophes arising from pesticide use and offshore oil drilling.” The implication—whether intended or not—is that as long as students mastered the “skill,” it didn’t matter if they did so through understanding the political and economic background to the Civil War or through examining the history of environmental catastrophes.

The newer version dramatically decreases the pages devoted to “skills” from nine to two, a welcome shift in guidelines for a course that ends with a content-based exam. It also shies away from offering trendy content examples to how teachers could satisfy the skills. As with the reference to founding documents, this change is welcome.

(3) The guidelines’ second section consists of seven “thematic learning objectives.” Three of these (politics and power; America and the world; and work, exchange, and technology) are unchanged. The other four themes have shifted, all in commendable ways:

“Identity” in the original version has become “American and national identity,” a significant, and welcome, narrowing of the concept. The change would suggest that identity-politics content wouldn’t satisfy the new learning objective.

“Peopling” has become “migration and settlement”; and “Ideas, belief, and culture” has become “culture and society.” It’s unlikely either of these will shift, but the more precise language is welcome.

Finally, “environment and geography—physical and human” in the original version has become “geography and the environment.” Starting with geography is welcome, as is the deletion of the “human” angle, which seemed to invite teachers to diminish emphasis on more traditional aspects of geography, which already get short shrift in contemporary public education.

In short, these thematic alterations feature more precise wording and closer alignment with the objectives of most states’ history curricula. And more generally, they lessen (though don’t entirely avoid) a major problem of the original APUSH, which seemed to pick out random people or events in American history and suggest these items were equally important so, say, Benjamin Franklin or Marbury v. Madison.

(4) The content section divides U.S. history into nine periods in both versions. The most controversial change from the original APUSH, which remains in the new version, was the inclusion of a section covering the years from 1491-1607 (to cover 5 percent of the course). That section remains.

Historians, of course, always look back in time, so there’s nothing intellectually objectionable to this material. Indeed, the APUSH designers could have gone back further—to the Vikings, perhaps, or to the Magna Carta. But the inclusion has a practical effect. Moving 5 percent of a course to the pre-1607 period means deleting 5 percent of the post-1607 content. Starting so much earlier also increases the chances that the course will rush through more recent U.S. history. The guidelines suggest 5 percent to the post-1980 period—arguably not enough space, given that a typical student in a AP history course this fall likely would have only faint memory of Barack Obama’s election, no or virtually no memory of 9/11 or the invasion of Iraq, and no memory of the fall of communism, the AIDS epidemic, the debate over apartheid, a world without the internet, the Reagan presidency, or any other aspect of 1980s history. And as anyone who’s ever taught a history survey knows, in-course adjustment means rushing through the very late stages, all the more so given that fluke weather or budgetary reasons sometimes ,leads to slight shortening of the school year.

So it would have been far better for the APUSH guidelines to ensure recent history got sufficient coverage. I’ll have some additional comments on content in a future post.

Amherst: No Pretense of Fairness

Amherst is being sued –and rightly so–in one of the most egregious of the many campus sex cases. In brief, this is what happened.

  • After heavy drinking, two Amherst students had sex.
  • The male involved was the boyfriend of the female’s roommate. Her friends made nasty comments about her or abandoned her for cheating on her roommate.
  • Months later, joining a group of victim’s rights advocates, the accusing student (AS) concluded that the drunken sexual encounter had been rape and brought charges.
  • In a  lightning-fast investigation,  Amherst  did not discover that AS had sent two  crucial text messages to fellow students: one admitting she had seduced the male in question, regretted it and worried that the male had been  too drunk to lie about it; the other inviting a second male to her room for sex immediately after the alleged rape.
  • In a kangaroo court hearing (no lawyer, no discovery no direct cross-examination), the male was found culpable and expelled.
  • Having learned about the exculpatory emails, Amherst refused to re-open the case, and blamed the accused male.

In a defiant response to a lawsuit filed by the accused student, Amherst claimed that the process worked as it should have in this case. Or if it didn’t, it was the accuser’s roommate’s fault—he should have found out about the text messages and forwarded them before the investigator’s investigation ended. Or if it wasn’t the accuser’s fault, it was the accused student’s own fault for (in a hearing with no lawyer) not developing clever supplemental cross-examination questions about the text messages. But Amherst, according to Amherst, did everything right, according to both college policy and federal law, producing a hearing “conducted with fundamental fairness, in good faith.”

Amherst: The Process Worked

Amherst’s response comes in three levels. First, it suggests that the college did everything right: the investigation worked as it should, even though the investigator did almost all of her campus interviews in just one day; and the panel made the correct judgment, even as the college denied the accused student any right to meaningful cross-examination or legal representation. After all, AS claimed (more than a year after the fact) that at some point she had withdrawn consent, and the accused student was too drunk to recall the incident.

It’s possible, as Reason’s Robby Soave has noted, that despite this damning contextual evidence, AS’s months-after-the-fact story about nonconsensual sex is correct. But in a case that relied solely on AS’s credibility, in which AS denied to Amherst’s investigator that she had relevant text messages, such material effectively destroys her claim—as Soave also, correctly, observed.

Desperately Defending the Accuser

In its filing, Amherst tries to rehabilitate AS in two ways. First, the college suggests that—even if they had been produced by the school—the text messages would have had “no bearing” on the case, since they were simply discussions about irrelevant aspects of AS’s sex life. But the intercourse is almost certainly relevant (since AS misrepresented to the panel and the investigator why the male student came to her room), and the messages contain several items discussing her intercourse with the accused, not with the second male.

Second, Amherst portrays AS as courageously forthcoming, and therefore wholly credible. It denies that she changed any significant aspect of her story—though even the school’s own investigator couldn’t “say it was clear to me” when AS actually claimed that she withdrew consent. It’s also true, the college’s outside attorneys concede, that AS told the school’s investigator that she didn’t have relevant text messages about the incident. But that answer was truthful, according to Amherst, because AS could have understood that the investigator was only asking her “whether she had communicated or recorded in writing that the Incident had been ‘non-consensual,’ which she did not.”

In other words, Amherst has implied that its investigator was only interested in obtaining from AS contemporaneous documentation that would confirm, rather than undermine, AS’s story. And this is how the college’s system was supposed to work? On this point, Amherst had two unpalatable options: (1) concede that AS lied to the investigator, and therefore is of dubious credibility, or (2) hint that its investigator wasn’t interested in obtaining exculpatory information. I suppose, given those two options, and given the ideological climate at the college, the lawyers had little choice but to implicitly rebuke the investigator.

Amherst’s Fallback Position: Blame Its Students

In a federal judiciary that includes such opponents of campus due process as Ronnie Abrams (Vassar case) and Jesse Furman (Columbia case), perhaps this argument might carry the day. But even Amherst seems doubtful. And so the school offers a second line of defense–to the extent the result was unjust and the school failed to consider exculpatory evidence, it was because Amherst students (either AS’s roommate, or the accused student himself) failed to do their jobs.

On this point, Amherst begins with AS’s roommate, the former girlfriend of the accused. (The roommate seems to me to have been badly treated by all parties in this case—including, now, Amherst.) While the college goes out of its way to defend the unreliable AS, its outside counsel choose to cast aspersions on the roommate—one of Amherst’s own students—by suggesting that she wasn’t entirely forthcoming about the existence of the text messages in her one and only interview with the investigator. Why? Because the roommate answered, “I don’t think so” to the following question from the investigator: “Is there anything else I haven’t asked you about that you think would be important for me to know?”

In other words: the roommate—a college student, not represented by counsel—was supposed to: (1) assume that AS hadn’t turned over clearly relevant messages (and understand why they were relevant); (2) recognize that the text messages (for which she was neither a sender nor a recipient) represented “anything else” in the investigator’s question; and (3) not wonder why this supposedly experienced investigator wouldn’t simply ask about text messages. Moreover, if the investigator had taken a more professional route—that is, scheduling follow-up meetings with relevant witnesses rather than interviewing all the witnesses in the case in a one-day whirlwind through campus—she might have realized the importance of the text messages and asked about them in a follow-up interview with the roommate.

Nonetheless, AS made a mistake. As even Amherst admits that AS “did not provide text messages to Attorney Kurker [the investigator],” she referenced them indirectly in the hearing: “I texted a friend to come over to talk to me and spend the night.” Amherst’s attorneys now argue that this sentence of testimony, buried within a longer discussion of what AS did after the alleged attack, shows the accused student had all the chances he needed. Although he “had the opportunity to do so,” Amherst’s outside counsel maintains, “he never asked [AS] to identify ‘the friend’ whom [AS] texted.”

In other words: the accused student—representing himself in a proceeding whose outcome would alter the rest of his life—was supposed to: (1) have had a clear enough understanding of the case to have recognized that AS made a key admission in her testimony; (2) have composed (in writing) a follow-up set of questions on the text messages as AS’s testimony was occurring; and (3) have submitted these questions to the panel chair and hope that the chair (who wasn’t required to do so) asked them of AS. And since the accused student failed at playing Perry Mason, Amherst now contends he’s out of luck.

Amherst and Its Officials

While the accused student couldn’t have a lawyer with him, he did have an Amherst-approved “advocate,” Torin Moore, who had come to Amherst after obtaining a graduate degree in social justice education from UMass. What was Moore doing as AS made her potentially damning admission? Amherst doesn’t even bother to defend his performance during the hearing. And what about the panelists? The college obliquely concedes their failures: AS “was not asked that question [about the text messages] by anyone else.” Why were they disinterested in this relevant information? Amherst doesn’t say.

Finally, a striking element of the original complaint was a realistic portrayal of the deeply unhealthy campus climate at Amherst on issues of due process—a task that the accused student’s attorneys, Max Stern and Hillary Lehmann, accomplished by liberally quoting from Amherst officials’ statements and documents. The Amherst filing ineffectively tries to rebut this portrayal by accusing Stern and Lehmann of producing a complaint that “mischaracterizes and selectively quotes out of context” Amherst materials. Yet in 39 pages, the college can’t identify a single specific mischaracterization.

UC San Diego Loses in Sex-Assault Case

After several troubling court decisions on the handling of college sex cases, a state judge in California has issued a ringing defense of due process. The ruling by Judge Joel Pressman, first reported by Ashe Schow, held that the University of California-San Diego (UCSD), had provided a fundamentally unfair procedure to a student accused of sexual assault. Scott Greenfield has an excellent analysis of the ruling, which also has been covered by the Washington Post and the Los Angeles Times, as well as by FIRE.

The case involved two students (both pseudonymous) who had a brief affair in early 2014. Contemporaneous text messages the accuser sent suggested that the intercourse had been voluntary, and that the accuser was at least somewhat experienced with alcohol. The sexual relationship quickly ended, but soon after the accused student attended a late spring social event at the accuser’s sorority (with another date), the accuser filed a complaint with UCSD.

The accuser wrote out a statement and was interviewed by one of UCSD’s “complaint resolution officers,” Elena Acevedo Dalcourt. (UCSD has refused to turn over either the statement or Dalcourt’s interview notes.) Only then did the accuser make a formal statement alleging two separate instances of sexual misconduct: first on the evening of a party (at which she had “brought a change of clothes to [the accused student’s] place,” with the expectation of sleeping over) and then on the morning after. She also claimed that despite a text message that she had a contact who “usually” purchased her alcohol (since she was underage), she actually was “inexperienced” with alcohol, and the accused took advantage by encouraging her to drink heavily.

Investigator Dalcourt found insufficient evidence of the first claim, but concluded that it was likely sexual contact occurred without “effective consent” the following morning. The investigator reached this conclusion because the accuser, in her interviews, “exhibited signs of a trauma victim.” Dalcourt’s report did not reveal what those signs were.

UCSD’s theory of the crime was as follows: after a night of what appears to have been voluntary intercourse, despite the accuser’s later claim, it was nonetheless at least 50.01 percent probable that the accuser told the truth when she charged that there was non-consensual sexual contact the following morning—even though later that same day, she would (a) text the accused about hooking up; (b) attend a formal at her sorority with him; and (c) have consensual intercourse with him again that night.

The UCSD Trial

A disciplinary hearing occurred on December 12, 2014, before a three-person panel of two UCSD administrators and a graduate student. The proceedings could have been a parody of how a college might seek to deny due process. In addition to a victim’s advocate at her side, the accuser had someone to speak on her behalf—a residence life bureaucrat named Anthony Jakubisin. He presented the case against the accused—and did so knowing that he couldn’t be challenged in any way by the accused’s attorney, Mark Hathaway, since university policy prohibited Hathaway from speaking at the hearing. Jakubisin informed all parties that “demeanor may be taken into consideration when deciding credibility”—but since the university allowed the accuser to sit behind a partition, the accused could not gauge her non-verbal reactions to questions. The two sides disputed whether the accuser was also shielded from the disciplinary panel; the university maintained that panel members could see her face, though not, it seems, her hands, while Hathaway, who was in the room, argued that she was shielded from the panel as well.

Jakubisin opened his case by referencing “prior sexual misconduct” by the accused student, which “seriously undermines” the accused’s claims of innocence from the charge that he faced. Yet UCSD’s own investigation had found no “prior sexual misconduct” by the accused. In a court of law, a prosecutor’s false claim of criminal conduct by the accused likely would have resulted in at least a mistrial. In UCSD’s disciplinary process, Jakubisin’s statement merited no response from any of the three potted-plant panelists. And the accused had no opportunity to rebut it through an opening statement from his lawyer.

Jakubisin then moved forward with questions for the sole witness at the hearing, the accuser, who said that the accused had tried to improperly touch her the first morning after they slept together. Though the only unequivocal claim of an actual assault came in the report from Investigator Dalcourt, based on interview notes that the university did not produce, Dalcourt didn’t testify at the hearing.

Citing the dangers of a victim re-traumatized by aggressive questioning, UCSD policies prohibit an accused student from cross-examining his accuser, even in cases (like this one) when the accuser’s word is the only evidence presented. The accuser therefore followed policy, and wrote out questions—he submitted 32 of them—that the panel chair could (or could not) choose to ask the accuser. This system, as Scott Greenfield has pointed out, is unfair on its face, since “questions beget answers, and answers beget more questions. Putting aside whether [the accused was] adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.” Even conceding these limitations, panel chair Rebecca Otten, the school’s Director of Strategic Partnerships and Housing Allocations, seemed indifferent to fairness. She presented to the accuser only nine of the questions submitted by the accused, and several of these she altered. She frequently denied questions without any explanation at all.

The rejected questions were hardly immaterial. Otten refused to ask about the text messages the accused student produced—which at the very least called into question the accuser’s credibility. The chair refused to ask whether the accuser had turned over to UCSD “all relevant text messages concerning [her] allegations.” Otten refused to ask whether the accuser had prepared her written report after she was interviewed by UCSD’s investigator, notes for which the university would not produce. The chair refused to ask whether the accuser had any meetings with de facto prosecutor Jakubisin before the hearing. And Otten refused to ask whether the accuser had “been honest and forthright at all times during the investigation . . . up through and including” the unsworn testimony she presented in the hearing. In an Orwellian argument, the university later cited “the requirements of due process” for Otten’s refusal to ask any of these questions.

At the hearing, the accused student unequivocally denied that any improper sexual contact occurred on the morning of February 1, 2014. (The accuser, of course, had asserted that the male student was “trying” to touch her in a sexual fashion.) Yet de facto prosecutor Jakubisin implied in his closing statement that the accused student had at some point in the case conceded to the contact, and instead had tried“to establish that there was some sort of implicit or explicit consent to digitally penetrate the vagina of the complaining witness on the morning of February 1st, because of past communication or activities between the two.” But the accused student had never made such a claim. Yet again, the panel allowed Jakubisin to speak unchecked, and yet again, because of UCSD procedures, the accused student’s attorney couldn’t rebut the misleading statement.

The Outcome

Given such one-sided procedures, it came as little surprise that the panel found the accused student guilty. Almost incredibly, it did so largely on the basis not of the testimony that it had just heard, but instead on the report produced by Dalcourt—who didn’t appear before the disciplinary board. The panelists also seemed oddly interested in the accuser’s deep personal ambivalence, noting that she “stated that she physically wanted to have sex with [the accused] but mentally wouldn’t.” And they implicitly faulted the accused student for sometimes invoking the 5th amendment, since the panel wanted to “hear more” from him. The panel recommended a one-term suspension, which various UCSD administrators subsequently increased to more than a year, without explanation.

You can read the university’s filing claiming that this record showed that the accused student received an “abundance of process,” a “generous process” even. (Imagine what an “ungenerous” process would have looked like!) As part of the university-provided “substantial procedural safeguards,” UCSD conceded, it hadn’t given the accused student information on the accuser’s initial interview with the investigator, or the witnesses’ interview with the investigator, or the accuser’s initial statement. But, it maintained, the panel never received this important information, either, so the accused student could claim no harm. UCSD attorneys also ridiculed the accused for positing “a false choice between compliance with Title IX and the due process rights of accused students”—yet the history of the last five years has shown that at too many universities, this choice is all too true.

Unlike Judge Abrams in the Vassar case and Judge Furman in the Columbia case, Judge Pressman did his job. Faced with a blatant denial of due process, he ordered the university to set aside its judgment against the accused student.

At the conclusion of the school’s disciplinary hearing, Otten, the panel chair, affirmed that “this process is educational in nature.” UCSD provided the accused with quite an education in the importance of due process.

Two Federal Judges Misrule in Campus Sex Cases

Since March of 2014, federal and state courts have produced a run of decisions favorable to due process in campus sex cases. But in recent months, this welcome development has been reversed—most spectacularly in the deeply troubling decision in the Vassar case, but also in two recent decisions involving cases at Columbia and Miami (Ohio). In both, federal judges dismissed Title IX complaints filed by male students who said they had been falsely accused. The decisions suggest indifference to judicial oversight of college disciplinary actions, and imply that Title IX can be used solely as a sword to eviscerate due-process rights, but not as a shield to protect the civil liberties of students on campus.


The first decision came from Judge Jesse Furman, regarding a lawsuit pseudonymously filed against Columbia. I had previously summarized the case, which involved a member of the Columbia crew team who was accused of sexual assault five months after a brief hookup. The accuser didn’t go to police or claim to anyone that she had been assaulted; she texted the accused student worried that if word of their hookup got out, it could affect their social standing. Both had been drinking, and the accuser subsequently complained that she was too intoxicated to have given consent. (There was, obviously, no medical evidence to verify this assertion.)

Columbia’s investigation and adjudication was cursory even by the weak standards that apply to college proceedings: the university didn’t speak to witnesses the accused student suggested who had seen accused and accuser on the night in question, and didn’t even tell the accused he had a right to an “advocate.” (So: facing a charge of rape, he represented himself.) Found culpable and suspended for three terms, his name was then leaked to the campus newspaper (along with Paul Nungesser’s in the “Mattress girl” case).

In a burst of bad luck for the accused student, the case came before Judge Jesse Furman. Three years ago, the Senate’s foremost opponent of campus due process, Senator Kirsten Gillibrand (D-New York), informed her colleagues that Furman’s “commitment to upholding fairness within our legal system is well regarded and highly respected.” Unsurprisingly for a nominee who received Gillibrand’s enthusiastic endorsement, Furman’s basic message to the accused Columbia student was simple: courts can do nothing, at least when the issue involves students denied due process in sexual assault cases. You can read the opinion here.

Judge Furman, who scowled that that the case before him was part of “what appears to be a growing phenomenon” of due process lawsuits, conceded that “Columbia may well have treated [the accuser] more favorably than Plaintiff during the disciplinary process.” But he had no interest in second-guessing Columbia’s actions, since the Court’s task was not to decide whether Columbia treated Plaintiff fairly or unfairly,” and dismissed the case.

Furman and Title IX

Furman bent over backwards to point out that reasons other than gender—a fear of negative publicity, or a fear of an Office of Civil Rights investigation—might have accounted for Columbia’s approach to the case. But, of course, plausible non-gender reasons exist as to why schools might allegedly, in the distant past, not have taken sexual assault complaints seriously enough. Yet OCR has been clear that the gender discrimination component of Title IX justifies the agency’s assault on campus due process. Furman added that a Title IX allegation must fail because the accused student had not included “any allegations that female students ‘were treated more favorably in similar circumstances.’” But this reasoning suggests that OCR’s approach to Title IX enforcement is similarly off-base. After all, while the overwhelming majority of campus accusers will be women, a small percentage of the total will be men—and presumably they, too, were treated in ways that did not fit OCR’s desires. Accepting the logic of Furman’s argument would make it inappropriate to suggest that the treatment of accusers constitutes a gender discrimination issue.

Unsurprisingly, Furman approvingly cited the Vassar opinion of his colleague, fellow Obama appointee Ronnie Abrams (though his opinion lacked Abrams’ crusading pro-accuser zeal). Unlike Abrams, he at least acknowledged that other courts had stood up for the due process rights of accusers, though he dismissed the reasoning of those cases.  Also unlike Abrams, Furman seemed to concede that at some point, accused students might be able to use Title IX to file due process suits. Perhaps ten or fifteen years down the road, when a sufficient database of mistreated students could be compiled (thereby gathering “information concerning a control group or the like”), his reasoning might allow such a lawsuit to go forward.

Miami’s Compromised Investigation

In late May, Judge Susan Dlott (like Furman, a Democratic nominee) issued a ruling that similarly construed Title IX as solely a sword. (You can read Dlott’s opinion here.) The case involved Miami (Ohio) student Matthew Sahm, who attended a fraternity party at the school on August 31, 2013. There, he met a fellow student, Alexis Prenzler; both were underage, both consumed alcohol, and they had some sort of sexual contact. Sahm said that when Prenzler asked him to stop—because, she said, she had a boyfriend and worried about cheating on him—he did. She then left the party with some friends. A few days later, however, Prenzler filed a complaint with the university, and she also told the Oxford Police Department that she had been raped, by an unknown assailant.

The case seemed open and shut, at least to Miami, which investigated and tried Sahm in three weeks. Sahm represented himself before Miami’s disciplinary board, and later claimed that at the hearing it was unclear whether he or Pretzler had the burden of proof—the sort of problem that can occur when a student accused of a felony offense represents himself. (Miami’s policy forbade Sahm from having an attorney represent him at the hearing.)

Only after being deemed a rapist did Sahm hire an attorney, who used a private investigator to look into the case. The investigator discovered that, according to six people who saw her immediately after the party, Prenzler had expressed the most concern about having cheated on her boyfriend, and denied having been drunk. One of these witnesses claimed that Prenzler had coached sorority sisters about how they should respond to the investigator’s questions. More explosively, she revealed that Miami’s Title IX investigator, Susan Tobergte, had discouraged her from testifying at the hearing—telling her that she needed to Google information about campus sexual assault to “find that less than 2% of sexual assault cases were wrongful convictions.” The student not unreasonably concluded that Miami’s allegedly impartial investigator was actually “biased toward one side of the case.”

As she “investigated” the case, Tobergte was also serving as a member of the university’s task force on sexual assault, which had produced a report claiming, without any hard evidence, that “as many as eight to nine women per week may be victims of sexual assault.” (For comparison, according to FBI 2013 crime stats, around twelve women per week were victims of sexual assault in Detroit, the nation’s most dangerous city—this amidst a population around 37 times larger than Miami University’s.) A report signed by Tobergte also claimed that many “college date rapists . . . did not see themselves as ‘real criminals,’” and that “some men may purposely get drunk when they want to act sexually aggressive, knowing that intoxication will provide them with an excuse for their socially inappropriate behavior.” It’s certainly plausible that someone who held such views could have prejudged Sahm’s case, since it involved alcohol.

Three other witnesses filed affidavits on Sahm’s behalf. One recalled seeing a distraught Prenzler shortly after the incident—distraught not because of an assault but because, she said, “I can’t believe I cheated on my boyfriend.” Another (a sorority sister of Prenzler’s) came forward because, “as a woman and a woman in a sorority, I think that making false accusations and presenting oneself as weak and a victim is extremely insulting.” She recalled that Prenzler had told several friends that she had initiated the sexual contact with Sahm because she “wanted to make sure that [she] didn’t just want to be” with her boyfriend. Perhaps because of such evidence, the police never filed charges against Sahm.

Indifference to Fairness

Miami nonetheless upheld the tribunal’s judgment on grounds that any such evidence was “available to [Sahm] at the time of the original hearing.” The university subsequently denied that gender bias motivated Tobergte’s conduct, suggesting a “benign” explanation (“such as an appropriate intent to take allegations of sexual assault seriously”) or at worst an “inappropriate but not discriminatory” motivation (“such as lack of experience in handling such investigations”) for the school’s investigator discouraging a relevant witness from testifying. Sahm was expelled from Miami, and was subsequently denied admission to Allegheny College after the school requested an explanation for why he had left Miami.

Judge Dlott conceded that it was “troubling” that the university’s Title IX investigator discouraged a student from testifying, apparently on grounds that the witness would say things that undermined the accuser’s tale. But she maintained that the university’s procedures, as revealed in the Sahm case, did not “suggest a gender bias against males so much as against students accused of sexual assault.” But, of course, the overwhelming majority of students accused of sexual assault will be male—just as the overwhelming majority of students who allege sexual assault are female. The latter fact justified OCR’s implication that robust procedural protections for the accused constitute gender discrimination, and therefore fall under the purview of Title IX.

As with Judge Furman, then, Judge Dlott dismissed Title IX as a dead letter for defending due process, even while conceding— albeit very reluctantly—that the university had set up adjudication procedures that were biased against the accused.

Columbia was a case with virtually no evidence. Miami was a case in which several key witnesses, who saw the accuser right after the party, disputed her tale (or simply thought she was lying), even as the school’s investigator discouraged one of them from testifying.

For two federal judges, students subjected to such biased procedures are simply out of luck.

No Due Process, Thanks—This Is a Campus

Here are two troubling developments regarding campus due process from the Upper Midwest:

Inside Higher Ed featured remarks from Susan Riseling, chief of police at the University of Wisconsin-Madison, regarding the intersection between campus police and Title IX responsibilities. Riseling told attendees at the International Association of College Law Enforcement Administrators conference that police chiefs should require all officers to read Jon Krakauer’s Missoula to better understand why victims distrust the system—even though only one of the accusers profiled by Krakauer was unequivocally a victim.

Then Riseling told a story of how the Wisconsin police had identified a student rapist on the basis of what he said in his Title IX hearing. (He had interviewed with the police, since the accuser apparently also filed a criminal complaint, but wasn’t forthcoming.) Police then subpoenaed the hearing records. “It’s Title IX, not Miranda,” Riseling boasted. “Use what you can.”

This remark revealed far more than Riseling intended. The chief offered a rare explicit celebration of what too often is implicit: lack of civil liberties protections is a desired aspect of college inquiries. The “advantage” of the disciplinary hearing process, it seems, is that accused students have minimal due process protections, and—since sexual assault is, of course, a crime—law enforcement can then use student disciplinary proceedings to obtain information that they could not, under the Constitution, in a normal police investigation. Civil libertarians might hope that Riseling will be rebuked for her cavalier attitude toward due process, especially in Madison, a city known for its defense of civil liberties. But I wouldn’t hold my breath.

Meanwhile, next door in Minnesota, the University of Minnesota has become the latest school to adopt an “affirmative consent” standard. The Star-Tribune interviewed FIRE’s Robert Shibley about how affirmative consent creates a presumption of guilt, and I echo his remarks. Two other points worth mentioning:

First, Minnesota provost Karen Hanson dismissed Shibley’s concerns on grounds that “we’ve still got tons of due process about these issues”—including the right to appeal. Really? The university’s appeal procedure is severely limited, and the “due process” that Hanson celebrates explicitly states that the appeals process “must respect the credibility determinations of the hearing body and must not substitute his or her judgment for the hearing body.” Other examples of the “tons of due process” that Minnesota supplies include: (1) the possibility of suspension based solely on an uninvestigated accusation; (2) have the right to cross-examine the accuser limited by “reasonable procedures to address concerns for safety or well-being”; and (3) describing the accuser (before the adjudication has finished) as a “victim/survivor.” “Tons of due process” indeed.

Second, the Star-Tribune article features interviews with numerous Minnesota students welcoming the policy changes. This hostility to basic civil liberties among the student body reflects a similar pattern that Stuart Taylor and I noticed at UVA after the Rolling Stone fiasco, and raises serious questions about the future attitude toward due process as these students become more active citizens in the near future.

Brandeis Betrays Students’ Rights

Earlier this spring, a student filed a due process lawsuit against Brandeis, charging that he was disciplined under a procedure different from the one that existed when he arrived on campus. In one respect, the facts of this case are atypical. After a nearly two-year relationship (between two male students) ended, the accuser appears to have reinterpreted the relationship as sexual assault. In another respect, though, this case is quite typical—a highly dubious procedure produced a questionable result.

Brandeis recently filed a motion urging the district court to dismiss the claim. (You can read the college’s filing here.) A key claim by the accused (who filed under a pseudonym) was breach of contract—that Brandeis was obligated to follow the disciplinary procedure that existed when he matriculated to the school. Instead, the college transformed a procedure that originally included a hearing and judgment based on “clear-and-convincing” evidence into the administration’s preferred “preponderance-of-evidence” standard. That standard called for a “single investigator” in which the accused student loses any right to cross-examine his accuser (or other witnesses), or even to hear what accusing witnesses have to say.

Brandeis doesn’t deny what it did, but astonishingly describes substituting one wholly different procedure for another as merely a “tweak” to its rules — part of the college’s “evolving” disciplinary standards and therefore not a breach of contract. How so? Brandeis didn’t wholly substitute one set of procedures for another in all student disciplinary cases, the college maintains, but did so “for only a narrow subset of student misconduct.” Here’s how Merriam-Webster defines tweak: “to make usually small adjustments in or to fine-tune.” It seems to me wholly replacing a procedure is a bit more than a small adjustment, or fine-tuning.

Even if the procedural change was more than a tweak, Brandeis claims it had good reason for acting as it did. Why? The “Dear Colleague” letter “explains that cross-examination and confrontation of the accuser would actually violate Title IX.” But in fact that letter offers no such explanation. In 2011, the Office of Civil Rights did assert—as part of its more general attack on due process rights of the accused—that despite nearly four decades of policy where this issue went unmentioned, it heretofore would “strongly discourage” cross-examination, even in instances where the accuser was the sole witness against the accused.

But strong discouragement is not the same as an actual violation. At most, the Dear Colleague letter maintains that cross-examination “possibly” [emphasis added]—not “actually,” as Brandeis claims—might create a hostile learning environment, allowing an appeal to Title IX. If Brandeis can’t even accurately describe its obligations under the Dear Colleague letter, why should the court trust its description of the contested facts in the case?

Beyond the procedure, Brandeis aggressively maintains that the single investigator’s conclusions—based on unsworn testimony that she did not record, notes of which she did not provide to the accused student—were just. In so doing, the college essentially concedes that its standards for determining what is or is not sexual assault are almost wholly arbitrary.

Brandeis asserts that “the common thread running through all of [the accused] claims is sexual, because [the accused] and [the accuser] had a dating relationship, consent to any and all sexual activity must be assumed.” But this isn’t what the lawsuit maintains. Rather, the lawsuit suggests that the existence of a long-term relationship must be a factor in evaluating the viability of the accuser’s after-the-fact, post-bad-breakup claims.

For instance: one infraction determined by the investigator (a former OCR staffer) was an alleged unwanted advance by the accused (at that point a closeted gay man) toward the accuser (at that point openly gay)—just before the two commenced their long-term relationship. Both sides agree the advance occurred. If the two didn’t have a 21-month relationship that began just after the alleged unwanted advance, perhaps the accuser’s tale might have some credibility. But surely the context matters here; and if the advance was unwanted, why did the accuser, who was open about his sexuality, decide nonetheless to initiate and maintain a long-term relationship with his alleged assaulter?

Similarly, Brandeis defends its investigator’s “balanced” conclusion that the accused student committed sexual misconduct by: (a) sometimes waking up his sleeping boyfriend with kisses; (b) sometimes staring at his long-term boyfriend’s nude body in the communal showers; and (c) sometimes getting “sulky” when the two didn’t have sex. Even if true, by those standards one or both partners of virtually any long-term couple at Brandeis (or anyplace else) could be deemed a rapist by the college. By describing behavior customary to many long-term relationships as sexual assault, Brandeis trivializes actual sexual assault.

One final point: somewhat oddly, Brandeis cites to the DePauw decision to justify its motion to dismiss. It seems to me that Judge Lawrence, in the DePauw case, did exactly what Brandeis wants court not to do here: he meaningfully examined the college’s procedures and evidence, took testimony in open court, and concluded that very little basis existed for the college’s decision to brand Ben King a rapist.

Will we see a similarly engaged court in Massachusetts?

The Washington Post Joins the Rape Culture Crusade

Stuart Taylor and I have a jointly authored piece debunking the Washington Post series on campus sexual assault. The collection of articles, accompanied by a misleading poll, has also received searing, effective criticism from Ashe Schow in the Washington Examiner, Robby Soave in Reason, and David French in NRO. I recommend each piece.

The series included the work of four reporters, plus a lengthy, mostly cell-phone poll—so the Post clearly devoted an extraordinary amount of resources to this project. The framing of the articles makes clear that the Post has an intense ideological commitment to the administration’s “rape culture” narrative. Beyond the specific critiques mentioned above, four general comments about the Post’s effort.

Related: WAPO’s Faulty Rape Poll Muddies the Issue

(1) Mix and match. The Post’s apparent goal was to overwhelm readers with story after story of college students victimized by sexual assault. The series included a page in which 49 “sexual assault survivors tell their stories.” The page was framed with an explanation that “the Post’s policy is not to identify victims of alleged sex crimes.” The “alleged” here is rather odd, since if the crimes were only “alleged,” how did the Post reporters determine their subjects were “sexual assault survivors”?

Not an Attacker, Not a Student

Many of the Post’s stories—if even close to true—were sexual assaults. (That said: the Post almost never spoke to the alleged attacker.) But to get its large number, the Post included alleged assaults that occurred off-campus by non-student perpetrators. It led with a story that doesn’t appear to have been a sexual assault at all, and in which the alleged attacker wasn’t a student at the same college as the alleged victim.

Then there are stories like one from a former student at the University of Nebraska, Omaha. She lived with a man (who she had started dating in high school) for several years. “He would continue to berate me until I gave in,” she recalled. “It was never taught to me, that that was an option, to really say no and mean it.” Post reporters paraphrase her perspective in the following way: “She said she and her boyfriend grew up believing that in a relationship, it is the woman’s job to meet the needs of the man. She believed that if she withheld sex, it would physically harm her boyfriend.”

Related: Amherst’s Version of Kafka’s ‘The Trial’

The Post doesn’t say what percentage of female college students live in off-campus houses with long-term boyfriends, but I would imagine the number is very small. Yet casual readers of the Post series who simply looked at the paper’s display and didn’t individually click each of the 49 stories doubtless would not have expected the UNO former student’s story, and it’s hard to see what possible public policy ramifications of this story could have.

(2) Indifference to prevention. As Robby Soave observed, the Post-Kaiser poll indicated that students considered excessive alcohol use a more serious problem on campus than sexual assault. The vast majority of cases that have attracted public attention since 2011 have involved one or both parties drinking lots of alcohol. Soave has suggested that the best way to deal with this problem is to lower the drinking age to eighteen. (I agree.) Another approach would be for schools to take a BYU-style approach and simply make use of alcohol a disciplinary offense.

No Interest in Rape Prevention

Either way, however, the goal here would be to prevent assault, something to which most activists on this issue appear indifferent. Rather, the goal is to (a) dramatically expand the definition of what constitutes sexual assault, but just for college students; and (b) make it all but impossible for an accused student to defend himself in campus tribunals.

Related: Did ‘Mattress Girl’ Tell the Truth? Not Very Likely

Ironically, the Post series coincided with publication of a study in the New England Journal of Medicine, which showed how training female undergraduates to resist assault had been “successful in decreasing the occurrence of rape, attempted rape, and other forms of victimization among first-year university women.”

This sounds like excellent news—but instead it has been met with outcry by victims’ rights advocates. Here’s Dana Bolger, an Amherst graduate who was a colleague of Amherst accuser AS in the campus victims’ rights movement, dismissing the significance of the study: “As a friend of mine once said, ‘If you’re pushing a woman to change her behavior to ‘prevent’ rape, rather than telling a perpetrator to change his, you’re really saying, ‘Make sure he rapes the other girl.’ There will always be another girl at the bar.”

Prevention, it seems, is not a legitimate goal.

The Most Troubling Finding

(3) Burying the lede. The quartet of Post reporters hyped the dubious 20 percent claim, without providing any context (that is: if 20 percent of college students are sexually assaulted, then colleges have a much higher violent crime rate than the most dangerous cities in the country, something virtually no one actually believes). But the reporters basically ignored the most troubling finding from the poll: whether students found it more unfair that a guilty student got away or an innocent student was falsely punished. By a 49-42 margin, today’s college students—tomorrow’s legislators—found it more unfair that the guilty went free. (This could be called the reverse-Blackstone effect.) Among college women, the margin was 56-36.

The question, actually, was a good one, since there is, at least in a crude way, a connection between enhancing procedural protections for the accused and running the risk that more guilty will go free. In an important editorial from the legal publication XX, which called for the administration to withdraw the “Dear Colleague” letter, the editors noted, “We can all agree that people who commit crimes should be brought to justice. At the same time, most of us share a profound commitment to affording those accused of a crime with certain rights—to know the accusation, to confront the accuser, to cross-examine witnesses and to due process. We know that each of these rights means that an accusation is less likely to result in a conviction. Yet no serious person proposes doing away with those basic rights, solely for the sake of increasing the conviction rate. If a mere accusation is sufficient to mete out punishment, we know how this story ends.”

No serious person might want to do away with these rights, but lots of people on campus do. To the extent that even students believe the principal problem is a need to punish the guilty, expect little interest among undergraduates in protecting due process. And this concern, again, comes amidst a process that already is deeply unfair to accused students.

The New History Standards—a Reaction Is Coming

Lynne Cheney had a high-profile piece in the April 1 Wall Street Journal critiquing the draft exam associated with the new Advanced Placement U.S. history standards (APUSH). (I’ve written on these standards previously.) The standards have aroused considerable controversy in the scholarly community—the National Association of Scholars deserves the most credit for highlighting the issue.

Cheney’s piece is worth reading in full. She makes two basic criticisms of APUSH. The first is broader and pedagogical. She notes a tendency to de-nationalize the history of the United States, not merely by placing U.S. history into a global context (something laudable) but by downplaying or eliminating from the history standards items that don’t fit either a global approach or the ideological preferences of the current academic majority.

She observes that World War II is framed not through a military history of the conflict, but instead episodes raising “’questions about American values,’ such as ‘the internment of Japanese Americans, challenges to civil liberties, debates over race and segregation, and the decision to drop the atomic bomb.’” These developments should not come as a surprise—the intent of APUSH, as its backers admitted, was to refashion AP U.S. history away from the approaches preferred by state education boards and toward the race/class/gender preferences of the contemporary academy.

Cheney also makes a more specific content-based criticism. She opens by challenging the APUSH standards’ treatment of Ronald Reagan, which she fears will not encourage students “to learn about positive aspects of our past rather than be directed to focus on the negative, as happens all too often.” Reagan’s 1987 Berlin Wall speech, for instance, is framed as demonstrating “increased assertiveness and bellicosity” in U.S. foreign relations. “No notice,” she writes, “is taken of the connection the president made between freedom and human flourishing, no attention to the fact that within 2½ years of the speech, people were chipping off pieces of the Berlin Wall as souvenirs. Instead of acknowledging important ideas and historical context, test makers have reduced President Reagan’s most eloquent moment to warmongering.”

Cheney’s comments about Reagan reflect a concern about the standards among many conservatives. The most notorious example of this pattern, predating APUSH, came from the Texas Board of Education, which wanted more textbook coverage of New Gingrich and the religious principles that theoretically guided the Framers’ actions. Lawmakers in Oklahoma’s Republican-dominated state legislature have called for banning the new standards. A similar measure has been introduced in Georgia, criticizing the APUSH standards for reflecting “a radically revisionist view of American history that emphasizes negative aspects of our nation’s history while omitting or minimizing positive aspects.”

I’m not sympathetic to these state initiatives, which improperly merge the pedagogical and ideological lines of criticism of measures such as APUSH. While it’s true that the historical profession is quite left-leaning, the movement to narrow the kind of history to which students are exposed flows as much from pedagogical as ideological motives. The last 20 years or so have featured a determined effort to marginalize or redefine approaches to U.S. history deemed excessively “traditional.” U.S. military history has been all but eliminated from most college curricula, and virtually no university history departments any longer hire specialists in the field. U.S. constitutional history has suffered a similar fate. U.S. diplomatic history has transformed to stress more international or even transnational themes, with less attention played to the making of policy by the U.S. government. And there’s been an aggressive attempt to “re-vision” U.S. political history to stress themes of race, class, and gender at the expense of more traditional topics.

While it’s true that classes in U.S. military or political or diplomatic history are more likely to include positive themes about the American experience than (say) a class in African-American history, ensuring that students learn about the foundational events and principles in American history does not equate to a “celebratory” approach to the past. At Brooklyn College, I teach a mixture of domestic and foreign policy classes; one of the foreign- policy classes focuses on U.S. relations with one region of the world. The offering now is U.S.-Middle Eastern Relations, but I used to offer a course in Inter-American Relations. It’s rather difficult to frame the Mexican War, or the U.S. occupation of Haiti, or U.S. interference in 1920s or 1980s Nicaraguan politics, in a way that makes U.S. conduct look good. But the purpose of the course was to give students an accurate background in the topic, not to provide a positive (or negative) portrayal of the American past.

Similarly, any comprehensive course in U.S. constitutional history will extensively include cases and movements that reflect negatively on the American past—ranging from the anti-canon of Dred Scott, Plessy, and Korematsu to other dubious cases such as Bradwell v. State of Illinois or Minersville School District v. Gobitis or Bowers v. Hardwick. And, of course, while addressing the many positive, far-reaching effects of the Constitutional Convention, the class likewise would need to discuss the 3/5th clause and the Framers’ willingness to morally compromise on slavery.

It’s entirely possible, in short, that a fair-minded class in U.S. constitutional or diplomatic history (or even, depending on the precise course theme, political history) would include enough negative material to arouse the ire of the type of southern and southwestern state legislators who have attacked the APUSH standards. But the academy would be in a far better position to resist these claims that APUSH is seeking to impose a political or ideological agenda if, in fact, the college history education APUSH seeks to replicate at the high school level actually included a wide range of pedagogical approaches. APUSH defenders could then credibly say that they want to expose AP U.S. history students to a wide range of approaches to the American past.

But that isn’t the case, and it isn’t likely to be the case anytime soon. Indeed, the reverse is more likely—ten years out, we’re likely to see a more restrictive range of approaches to U.S. history at the college level, and as a result a more one-sided portrayal of the American past in the AP exam. At some point, a Red State legislature will step in, on political grounds, and impose its own vision of the past on the AP exam and (perhaps) on state university programs as well. And it will be hard to maintain that the academic majority won’t deserve the rebuke.

Amherst’s Version of Kafka’s ‘The Trial’

Kafka was born too early to write about Amherst College. At campus hearings on claims of sexual assault, procedures are relentlessly stacked again males and evidence of innocence doesn’t count. Amherst expelled a student for committing rape—despite text messages from the accuser, sent  immediately after the alleged assault, (1) telling one student that she had initiated the sexual contact with the student she later accused (her roommate’s boyfriend); (2) inviting another student to her room for a sexual liaison minutes after she was allegedly raped.

Amherst, on grounds that the accused student (who, per college policy, had no attorney) didn’t discover the text messages until it was too late, has allowed the rape finding to stand, even though the college’s decision relied on the accuser’s credibility (which is now non-existent). Amherst faces a due-process lawsuit in the case. You can read the complaint here.

A Goal of Empowering Victims

The expelled student’s complaint begins by noting the hostile campus attitude toward due process—both from pressure from the Education Department’s Office of Civil Rights, and because of a highly-publicized 2012 article from a student and self-described “survivor” who claimed that the college mistreated her. (Wendy Kaminer summarized the case in The Atlantic.) The outcry prompted Amherst to cancel classes for a day to discuss the issue, led to the forced resignation of the college’s sexual assault coordinator, and caused Amherst to change its sexual assault adjudication procedures to focus on “empowering victims,” rather than on, say, pursuing fairness and justice in its hearings.

These procedures, unsurprisingly, are wildly one-sided. Amherst adopted an “affirmative consent” standard; its policies do not explain how an accused student can prove he obtained this consent short of video-taping any sexual encounter. Regarding alcohol, the school deems it important that “anyone engaging in sexual activity be aware of the other person’s level of intoxication.” (How this should be done, Amherst doesn’t say.) Awareness, the college adds, might not even be enough, since “an individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent. How an accused student is supposed to know that someone appearing to give consent is actually in a “blackout state” Amherst, again, doesn’t say.

An Attorney with No Role

Once the complaint is filed, an investigator, who lacks subpoena power, interviews the accuser and the accused student; beyond that, the college promises only that the investigator will make a “good faith effort” to speak to relevant witnesses, and will “try” to obtain relevant physical or medical evidence. If the investigator’s “good faith” effort doesn’t track down relevant witnesses, the policy presumes that the accused student won’t be able to call those witnesses before the hearing.

“Attorneys cannot participate in the Hearing Board process” at Amherst (although, the college helpfully notes, the accused student can hire an attorney—at his own expense—and have the attorney present on campus the day of the hearing, perhaps for a very expensive form of virtual, moral support). The attorney-less accused student does receive an “advisor” from the campus community, but this advisor “is not an advocate for the student.”

Amherst does not permit theaccused student to directly cross-examine his accuser; he can only submit questions to the panel chair, who may ask or reject the questions as the chair chooses. Effective cross-examination under such circumstances is all but impossible—even more so since the accuser is allowed to write responses, rather than respond to questions orally. Any guilty finding is “permanently noted on the student’s record.”

Ever Leaning Toward Guilt

Panel members, who are drawn from the Five Colleges consortium (Mount Holyoke, Amherst, Hampshire, and Smith Colleges, and the University of Massachusetts at Amherst), receive annual “training regarding, the dynamics of sexual misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information, the manner of deliberation, and the application of the preponderance of the evidence standard.”

Amherst doesn’t reveal what this training entails (recall that the only school whose panel training did become public, Stanford, used blatantly guilt-presuming training). Panelists come not from the general student body or even faculty but from the world of student life or institutional diversity, areas likely to tilt toward a guilt-presuming ideology even amidst the consortium’s politically correct mindset.

Panel members in this case included two student life officials (one from Mt. Holyoke, the other from Hampshire) and Eric Hamako, whose Ph.D. in “Social Justice Education” produced a dissertation focused incorporating “stronger anti-racist frameworks into those educational efforts.” (Hamako, who then worked for Smith, could not be reached for comment; the other two administrators did not respond to a request for comment.)

This was not a panel, in short, that seemed likely to go out of its way to critically examine a rape accuser’s allegation, or to stand up for due process, particularly given the ideological climate at Amherst in the 2013-2014 academic year. Additionally, since all panelists were administrators (like Amherst’s former sexual assault coordinator), they lacked the protections of tenure if they made an unpopular decision.

Alcohol and Activism

The incident dated from the early morning hours of February 5, 2012, when the accused student (who filed the suit pseudonymously, as John Doe) was a sophomore. After a night of heavy drinking by Doe, he accompanied the accusing student (who I’ll call AS) back to her room, where she performed oral sex on him. (Doe had no recollection of the sexual encounter, a claim that even Amherst’s tribunal found “credible.”) When news of her having hooked up with her roommate’s boyfriend got around, a former friend recalled that AS (unsurprisingly) “lost her group of friends.”

AS’s new group of friends, much like Rolling Stone’s “Jackie” in the UVA case, came from campus victims’ rights circles. AS first mentioned the alleged assault in a column from an activist campus website to which she regularly contributes and which reflected the viewpoint of the most extreme campus victims’ rights advocates—though the thrust of the column focused on her friends (unsurprisingly) turning on her after the hookup.

AS also was friendly with a leading anti-due process activist on campus, Liya Rechtman, to whom Doe had reached out after publication of AS’s column, to ask if he could have in any way mistreated AS. Rechtman claimed that this conversation amounted to a confession, an interpretation even Amherst’s investigator said left her “confused.”

Twenty-one months after hooking up with her roommate’s boyfriend, AS filed a claim of sexual assault. She did not go to the police, and of course had not sought medical attention after the alleged attack. But she did claim to have one contemporaneous piece of evidence that the attack traumatized her. She told the college, she asked a friend to come over and spend the night with her after her encounter with Doe. No evidence exists that Amherst asked her to identify this friend, who did not testify in her hearing.

The Hearing

As it turned out, the case would be the first under Amherst’s new, guilt-presuming policies. While the accuser waited 21 months to file her charges, Doe received ten days before he met with the investigator; thirty-eight days after Doe was notified of the charges, the disciplinary board decided to expel him.

The two sides’ contrasting advisors reflected Amherst’s warped ideological climate on sexual assault issues. Though technically the advisor “is not an advocate for the student,” AS’s advisor clearly did sympathize with her. Rhonda Cobham-Sander, a tenured professor of Black Studies and English who specializes in post-colonial literary theory, was an influential figure on campus. Amherst’s first diversity czar, she delivered a victims’ rights-oriented address after the 2012 sexual assault controversy.

Doe’s advisor, on the other hand, was an Amherst administrator (who lacked tenure protections) named Torin Moore, whose academic training came not in the law or in anything related to civil liberties but instead in “social justice education.” Moore’s performance was so lackluster that Doe eventually would sue him. Neither Moore nor Cobham-Sander responded to requests for comment about whether they were aware of the full scope of evidence in the case.

The college’s hired investigator, Allyson Kurker, interviewed most of the witnesses in one day; Kurker did not respond to a request for comment about whether she was satisfied her inquiry uncovered sufficient evidence. An attack that AS initially described as wholly non-consensual came to be seen as consensual before changing during a “break” in the oral sex. “I can’t say it was clear to me” when the assault allegedly became non-consensual, Kurker admitted in the hearing. (You can read the hearing transcript here.)

Once the hearing began, AS repeatedly presented herself as too traumatized to articulate her thoughts verbally. (She had no such problem, according to Kurker’s report, when the investigator asked her questions.) Asked whether the two went to her room voluntarily to hook up, AS replied, “Yes. Well—although in would like to say that I did feel some—I did like well feel like well some—I did . . . I did like well feel like well some like . .  . well . . . some like . . . like . . . some like well pressure to do so.”

Panel member Hamako wondered about this “pressure,” which AS hadn’t previously mentioned, yielding this response: “So as we were making out in the common room, so some of the students there, so I think, so I think, so I think, [another student] included, were just like, well, chanting like well, things about me. Like, like, like, like, I mean, like, like, I mean, like, I mean like this, I mean like, I mean like, I mean like slut, and like that kind of thing. And they also like told us, get a room, so, yeah.” How that reaction (even if accurate) could be held against Doe was left unclear, since Hamako didn’t follow up.

I Didn’t, I Didn’t, I Didn’t

In perhaps the critical section of the hearing, when a panel member wanted to know what AS did after the alleged assault, she responded, “So after he like walked out, I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . .” On cue, the panel then allowed AS to type a response—an option that AS repeatedly pursued during the hearing. In her written response, the accuser claimed that after Doe left her room, she felt “very alone and confused,” so texted a friend to come over and spend the night with her.

In fact, as Doe’s attorneys later would discover, AS had texted two people after the hookup—a friend, and a possible paramour. Even before hooking up with Doe, AS had texted the other male student, telling him, “I mean I happen to have my room to myself this weekend, if you wanted to come over and entertain me.” After she finished with Doe, AS resumed flirtatious texting with the male student, who came to her room and spent the night with her. He found her “friendly, flirtatious, and spirited,” and not “anxious, stressed, depressed, or otherwise in distress.” You can read these text messages here.

Just after Doe left her room, AS also had (as she told the disciplinary panel) texted a friend. But (contrary to what she told the disciplinary panel) she didn’t invite the friend over to her room. Instead, she informed the friend, “Ohmygod I jus did something so fuckig stupid.” Coarse language from her in subsequent texts implied an awareness that she had initiated sexual contact with the student she later accused of rape. AS was upset in these messages—but not from being raped.

Rather, she worried (not unreasonably) about the fallout of a sexual liaison with the boyfriend of her roommate, who “would literally never speak to me again” if she found out. AS continued texting her friend after the male student arrived; she described her attitude toward her guest: “Like, hot girl in a slutty dress. Make. Your. Move. YEAH.” At 5am, she sent another text to the friend indicating that some sort of sexual liaison had occurred with her male visitor. You can read these text messages here; the critical messages are on pp. 6-8.

AS mentioned none of these exchanges to the panel. But since Amherst, like all colleges, lacks subpoena power, it had no way to obtain text messages from the night of the alleged assault. In a campus climate predisposed to believe all but the most non-credible accusers (and even, sometimes, the wholly non-credible, as the UVA case demonstrated), the panel didn’t probe too much. After AS’s “so I didn’t” non-response, panel members gently turned to questions about how knowledge of her hookup with her roommate’s boyfriend affected her relationship with their common friends. “They all felt they had to side with [the roommate] and stop speaking to me,” AS complained.

The Outcome

Despite an accuser who offered borderline non-coherent responses that subtly expanded on her initial story, the panel ultimately accepted her credibility. It ruled that while Doe likely was “blacked out” during the oral sex, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Since AS said she withdrew consent at some point during the sexual act, and since Doe couldn’t challenge that recollection, the panel was at least 50.01 percent inclined to believe the accuser’s tale.

(The panel members offered no explanation as to why or how they reached this decision.) The panel recommended immediate expulsion for Doe. For good measure, panel members also urged him (but not, it seems, AS) to obtain alcohol counseling. You can read the panel’s thread-bare decision here.

Amherst’s case depended entirely on AS’s credibility. During the spring 2014 semester, Doe hired an attorney—who managed to discover the text messages quoted above, messages that all but eviscerated AS’s credibility. But according to the complaint, even when confronted with this new—and transparently exculpatory—evidence, Amherst declined to reopen the case.

Once again: this is a case in which an accuser (to put it charitably) misrepresented written evidence vital to her credibility, and this same material, her words, showed—if anything—that she initiated sexual contact against a student who even Amherst’s panel described as “blacked out.” And yet, according to Amherst, AS is a sexual assault “survivor.”

Blue State Justice Rarer than Red

In a polarized country, it probably should come as little surprise that campus due process also is becoming polarized over alleged sexual violations. While the Office for Civil Rights seeks to eviscerate the rights of accused students nationwide, accused students increasingly have more rights in red states than in blue states—largely because blue state governments are eagerly taking those rights away.

California was first, with its notorious “affirmative consent” law. When asked how an innocent male student could defend himself under the standard of the law that she co-sponsored, Assemblywoman Bonnie Lowenthal replied, “Your guess is as good as mine.” New York and Connecticut appear poised to enact affirmative consent by statute this year; the sponsor of the bill in Connecticut’s state Senate was clear her goal would be to change the burden of proof to the accused student. “[T]he burden will be on the assailant,” Mae Flexer observed, “to explain why he or she thinks they got a yes.”

On Thursday, Virginia Governor and Democratic candidate for president Terry McAuliffe issued a Task Force report on campus sexual assault organized by the state’s Democratic attorney general, Mark Herring. This 107-page report was perhaps most notable for what it did not include. It did not once mention the phrase “false accusations.” It appears being framed does not concern Virginia policymakers. Perhaps for that reason, this report, which discussed how Virginia colleges need to respond to sexual assault allegations didn’t mention the highest-profile rape allegation on a Virginia campus in recent years. Rolling Stone, Sabrina Rubin Erdely, or the false accuser “Jackie” were, it seems, not relevant to a discussion about campus rape claims in Virginia.

Most of the report addresses issues before a final adjudication occurs—that is, before the college or university can know whether or not a rape occurred. The report uses the word “accuser” twice and “alleged” twice. “Victim,” on the other hand, is mentioned 178 times. It certainly appears as if the Task Force members presume that an accuser is automatically a “victim.”

Who were these Task Force members? The governor and attorney general didn’t ask a single defense attorney or representative of a civil liberties group, such as FIRE. The list includes a number of law enforcement figures, along with gender-related administrators and a single student, Chelsea Godfrey, a self-described sexual assault “survivor.” A second recent graduate, UVA’s Emily Renda, was also involved in subcommittee deliberations of the Task Force, but she wasn’t mentioned in the final product. Perhaps someone thought better of highlighting the role played by the person who provided “Jackie” to Rolling Stone, and vouched for the false accuser’s credibility.

The Task Force enthusiastically supported more campus bureaucracy to deal with sexual assault allegations. Virginia colleges now will be required to create a “sexual assault response team,” or SART. This group will include the Title IX coordinator, various campus law enforcement officials, “on and off-campus victim advocates,” a SANE nurse, and student affairs administrators. SART will be part of only a more complicated bureaucratic flow chart. As funds decrease for new faculty hires, at least Virginia professors will know where the money is going. These new bureaucrats, moreover, will be trained by “victims” and “victim advocates.”

Finally, the document does contain a token mention of protecting the due process rights of the accused. But none of the Task Force’s 21 recommendations explains what a baseline due process situation would entail. Instead, the Task Force seems most interested in noting that schools aren’t required to provide the sort of protections available in the criminal justice process.

I suspect that Virginia will provide a template for other blue states.

‘Diversity’ at Harvard: 96% of Profs’ Donations Go to Dems

The Crimson published a lengthy study last week analyzing the contribution patterns of Harvard professors in recent campaigns (2011-2014). The tally: 96 percent of the donations from the arts and sciences faculty went to Democrats. These results shouldn’t come as much surprise at this stage, but they’re a reminder of just how limited the ideological perspective is on the nation’s campuses.

As always, a disclaimer is needed when discussing the relationship between political affiliations and the campus atmosphere. There isn’t necessarily any linkage between the two; Democrats can be critics of the campus status quo (I’m, obviously, an example of this), and Republicans can support the current climate. A margin of 60-40 or even 70-30 in one direction or the other would deserve little comment. But a breakdown of 96-4 has to raise some questions. Even Harvard dean Michael Smith remarked, “I am amazed at how high that number is.” The dean gave no indication, however, that the high number would trigger any changes in hiring patterns.

Four broader points emerge from the Crimson’s figures. First, and perhaps most important, the data exposes the hypocrisy of many “diversity” advocates, who demand certain types of diversity (but never intellectual or most types of pedagogical diversity) allegedly to ensure that students encounter a wide array of perspectives on campus. Here’s Lawrence Bobo, chair of the African-American Studies Department, minimizing the significance of the findings: “I think that this is an institution that really chafes against simplistic adherence to one point of view or approach . . . It is one of the great virtues of the University.”

Imagine if instead of a 96-4 split in favor of Democratic donations, the Crimson had revealed a 96-4 split in terms of white faculty members. Does anyone believe that Prof. Bobo would have dismissed these figures on grounds that Harvard “is an institution that really chafes against simplistic adherence to one point of view or approach”?

Second, the figures should (but almost certainly won’t) prompt Dean Smith to more closely examine hiring patterns, to ensure that groupthink isn’t excluding certain pedagogical perspectives. Again, there’s a difference between what might be expected from a slight imbalance and a ratio in some departments of 25- or 30-to-1. To take examples from history: it’s certainly possible that a professor whose specializes in, say, African-American women’s history will be a Republican, and a military history expert will be a Democrat. But all other thing being equal, neither outcome (especially the first) is all that likely. To what extent, then, does the 96-4 split indicate that Harvard is excluding certain types of more “traditional” pedagogical approaches from its hiring patterns, or that groupthink has caused the institution to seek to replicate existing professors in new hires?

Recall the sort of answers that asking that question often reveals. For instance, during the Mark Moyar case, it was revealed that the University of Iowa’s History Department had more than 20 registered Democrats and zero registered Republicans. (Moyar’s work, which defended the U.S. approach in Vietnam, made clear his conservative bent.) The then-chairman dismissed the relevance, by arguing that two-thirds of the registered voters in the university’s home county were Democrats—as if 67 percent and 100 percent were the same, and as if the university only recruited from Johnson County, Iowa.

Third, the Crimson data shows that many Harvard science professors made large donations to Democrats, and there appears to have been scant difference between the donation patterns of science professors and those of their colleagues in the humanities. I suspect that even a decade ago, these figures would have been much more balanced. But in the past ten years, political culture has featured two highly-charged debates over science issues—the teaching of intelligent design; and the reliability of climate change science. The Republicans’ position on the latter in particular has served the political interests of the party well, but it seems to have come with a cost on campus.

The science figures, however, are all the more striking when compared to the donation patterns of faculty at the Harvard Education School, one of the leading such institutions in the country. As Jon Chait has frequently observed, a tense relationship exists between teachers’ unions and the Obama administration’s education reform efforts; the unions seem eager for a return to Clinton-style deference to their wishes. And yet 100 percent—100 percent—of the Ed faculty who donated did so to Democrats.

That figure, of course, recalls the efforts of FIRE and ACTA against NCATE’s “dispositions” standards, in which the accrediting agency sought to require all Ed schools to certify that prospective public school teachers had a “disposition” to promote social justice. It doesn’t take a Ph.D. to figure out whether a faculty that gives 100 percent of its donations to a single party will take an ideologically balanced approach to such a politically charged concept.

Male in ‘Mattress Case’ Sues Columbia

Male in ‘Mattress Case’ Sues Columbia

KC Johnson

Paul Nungesser—the Columbia student targeted by Emma Sulkowicz’s media campaign and described by Kristin Gillibrand as a “rapist” in a statement released by the New York senator’s office—has filed a Title IX lawsuit against Columbia University. The case was assigned to Judge Gregory Woods, an Obama appointee recommended by Charles Schumer. (This is the same district that includes the due process-unfriendly Ronnie Abrams, so the assignment could have been worse.) You can read the filing here.

Cathy Young has the best journalistic summary of Nungesser’s experience. Even though he was found not culpable in Columbia’s accuser-friendly adjudication process; and even though the NYPD declined to pursue Sulkowicz’s claims; and even though Nungesser’s advisor cast doubt on Sulkowicz’s portrayal of the Columbia disciplinary process; and even though flirtatious e-mails from Sulkowicz to Nungesser seemed irreconcilable with Sulkowicz’s claim that Nungesser violently attacked her—media portrayals offered up Sulkowicz as a “survivor.” The editor of the op-ed page at the Columbia Spectator subsequently admitted that “we, the members of the campus media, failed specifically with [Emma] Sulkowicz’s story by not being thorough and impartial. Instead, campus media’s goal to promote discussion about sexual assault and to support survivors became conflated with a fear of rigorous reporting. Personally, I felt that if I covered the existence of a different perspective—say, that due process should be respected—not only would I have been excoriated, but many would have said that I was harming survivors and the fight against sexual assault.”

A Non-Credible Accuser?

The complaint goes into considerable detail regarding the Nungesser-Sulkowicz relationship; using private Facebook messages, the complaint notes that the two frequently discussed intimate matters (including Sulkowicz’s claim that she had been raped in high school and her discussion of students on campus with whom she had intercourse). The messages contradict Sulkowicz’s subsequent assertions that she and Nungesser had never discussed certain types of intercourse before sleeping together.

The Facebook messages in the complaint—many of which Cathy Young previously had uncovered—reveal a relationship in which desire became increasingly imbalanced. Nungesser told Sulkowicz he had met someone else over the summer (“a summer fling”); messages from Sulkowicz over the summer responded, “I LOVE YOU – SO MUCH” – “I MISS YOU MORE THAN ANYTHING.”

Their friendship apparently resumed in fall 2012, and they slept together one time in September 2012. Sulkowcz’s messages to Nungesser afterwards contained no indication of any assault. Rather, she told him “I wanna see yoyououoyou” and “I love you Paul. Where are you?!?!?!?!”But Nungesser didn’t seem interested, and (as Young had noted in her article) the two didn’t meet. According to the complaint, “she continued pursuing him, reiterating that she loved him. However, when Paul did not reciprocate these intense feelings, and instead showed interest in dating other women, Emma became viciously angry.” Sulkowicz then filed a complaint of sexual assault with Columbia.

Despite Columbia’s low evidentiary standard (preponderance of evidence) and accuser-friendly procedures, Nungesser wasn’t found culpable—even though he wasn’t able to present clearly exculpatory evidence (the Facebook messages) and possibly exculpatory evidence (that Sulkowicz had previously claimed that another Columbia student had raped her). Sulkowicz’s lack of credibility was, it seems, more than enough for the Columbia panel.

The university instructed Nungesser that it would “make all reasonable efforts to maintain the confidentiality/privacy of the involved parties,” and that he “should use the utmost discretion and not discuss the evidence with others.” Sulkowicz, presumably, received the same guidance (otherwise Columbia violated Title IX by setting one procedure for the accused and another for the accuser). Columbia’s policy held that “breaches of confidentiality/privacy or the complainant, respondent, witnesses, or the investigators, may result in additional disciplinary action.”

The Columbia Response

Sulkowicz obviously has ignored that requirement, and responded to the not-culpable finding by going on a media spree, speaking to a wide variety of local, state, and national reporters—as well as, the complaint alleges, coverage in 35(!) other countries. No evidence exists that Columbia disciplined Sulkowicz for the breach of confidentiality. Instead, Columbia removed the promise of confidentiality in 2014, after Sulkowicz had begun her publicity effort.

Bollinger, meanwhile, responded to Sulkowicz’s crusade by announcing new procedures that further weakened the rights of the accused. While making no comment about Nungesser (who, again, Columbia’s own procedures found did nothing wrong), the president also expressed sympathy with Sulkowicz, since when a Columbia student “feels that she has been a victim of mistreatment, I am affected by that. This is all very painful.” Repeated Bollinger statements, including a New Republic article featuring a photo of Sulkowicz, seemed to side with Sulkowicz, while doing nothing to address the harassment of Nungesser or Sulkowicz’s myriad breaches of confidentiality. In fact, Columbia’s strategy—claiming that confidentiality forbade it from defending that fairness of the panel that evaluated Sulkowicz’s claim while simultaneously turning the other way to Sulkowicz’s violations of that same confidentiality—could only leave the impression that Columbia’s administration agreed with the accuser’s complaints.

This campaign, the complaint notes, featured Sulkowicz repeatedly claiming that she was afraid to leave her room, lest she encounter Nungesser on campus. Yet at the time (as Sulkowicz knew), Nungesser was studying abroad (in Prague), and therefore the accuser had no risk of encountering him. The complaint undermines the credibility of Sulkowicz’s public statements in other ways. For instance, the accuser has claimed that she went to the NYPD, but then dropped the case because the police officers didn’t treat her with sufficient sensitivity. In fact, Nungesser met with two Manhattan ADAs, who then informed him that they didn’t have reasonable suspicion to proceed with the case. Three weeks later came Sulkowicz’s seemingly false assertion that she pulled the plug on the case.

The Mattress Allegation

In addition to Columbia and Bollinger, there’s a third defendant in the case—Professor Jon Kessler, who supervised Sulkowicz’s “academic” project of carrying a mattress around campus to symbolize her suffering. The complaint cites Kessler’s public statements corroborating Sulkowicz’s unsubstantiated (at best) account as grounds for a defamation charge. For instance, Kessler told the Columbia Spectator, “Carrying around your university bed – which was also the site of your rape – is an amazingly significant and poignant and powerful symbol . . . with all this evidence coming up … it’s so clear the way uni feels about this issue.” Kessler did not explain what grounds he had for making this statement, nor did he speak to Nungesser to get his side of the story. By publicly targeting Nungesser, the complaint alleges, Columbia authorized gender-based harassment of one of its own students.

The academic/publicity campaign, the complaint alleges, has had its effect; after all, Sulkowicz made plain her goal of creating a situation making it“not safe for him to be on this campus.” Sulkowicz herself liked (on Facebook) one written threat to Nungesser, in a thread that featured one friend of the accuser[i] endorsing Nungesser as the victim of “mob justice“(link no longer active). It seems unlikely, under current conditions, that Nungesser will even be able to attend his graduation. The complaint alleges that Nungesser and his parents have filed repeated complaints with Columbia about Sulkowicz’s conduct, which all but certainly violates even the watered-down restrictions on accusers in the current Columbia policy.

Columbia, according to the complaint, has done nothing. Will a federal court follow suit?


Hans Bader has a perceptive post analyzing the University of Virginia’s new “affirmative consent” policy. Rather than learning from Rolling Stone and stressing due process, the site of the year’s biggest campus rape hoax has redefined sexual assault to include routine contact that no one off campus would deem criminal conduct. As Bader notes, UVA now “forbids the gradual, step-by-step escalation of intimacy without verbal discussion that is how making out actually happens in the real world.”

Bader’s critique provides a way to look at the latest due process lawsuit, this one filed against Brandeis. This case already had attracted some attention, including a typically one-sided piece in the Huffington Post, which without corroboration contended that the accused student had engaged in an act of retaliation. This is the only public instance of the Office for Civil Rights investigating a school after a complaint filed by an accused student (though the lawsuit suggests there’s one other such Title IX case). You can read the lawsuit here.

‘Emergency Suspension’      

The facts of the case differ, and in some aspects dramatically, from most other due process lawsuits, with the possible exception of the Marlboro College case. Unlike most due process suits—which seem to be based on fleeting sexual contact after a night of drinking—the Brandeis lawsuit comes out of a romantic relationship between two males, which lasted nearly two years and in which neither party consumed alcohol during the relationship. Though the couple broke up in summer 2013—at the impetus of the eventual accuser, according to the complaint—they remained friendly for a few months thereafter.

But the friendship deteriorated in fall 2013. Then, in January 2014, the accuser filed the following allegation to Brandeis: “Starting in the month of September, 2011, the Alleged Violator of Policy had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.” Brandeis responded by placing the accused student on what the complaint describes as an “emergency suspension,” though no inquiry had occurred and the filing itself contained no specific allegations.

Even though the university had a functioning disciplinary hearing process at the time, Brandeis instead investigated the accuser’s remarkably non-specific complaint through a single investigator, a former OCR employee named Elizabeth Sanghavi. (Sanghavi’s CV lists herself as a co-author of this article on the “Dear Colleague” letter.) Sanghavi interviewed both parties—the accuser described her as “very sensitive”—and a handful of others; according to WBUR, she elected not to record these interviews, for reasons that remain unclear. The accused student had no right to counsel, and no right to see his accuser’s testimony, much less to cross-examine the accuser. None of the interviews with Sanghavi occurred under oath. The accused student received no detailed allegations against him until his first interview with Sanghavi.

 Withholding Information

Under the pre-“Dear Colleague” letter disciplinary process, Brandeis used a “clear and convincing” evidentiary threshold, but the accused here faced the preponderance of evidence (50.01 percent) standard. Though Sanghavi prepared a report based on her interviews, bizarrely, Brandeis policies have the accused student “listen to the [student affairs officer’s] summary of findings and engage in dialog with the [officer] about these findings.” The Brandeis procedures offer no explanation as to why the school doesn’t provide accused students this obviously relevant written material during the process; Brandeis gave the accused student the written report only once it had closed the process and branded him a rapist, and it still has never produced Sanghavi’s notes.

In her findings, Sanghavi concluded that the first time the two students had slept together, the accuser hadn’t given affirmative, verbal consent, and therefore the accused was guilty of sexual assault. As the accused’s attorney, Patricia Hamill, observed, “It defies reason for the Special Examiner to have concluded that John’s ‘first move’ leading to a 21-month consensual relationship was a sexual assault.” Though the two students regularly slept together during this 21-month period, Sanghavi also found the accused guilty of nonconsensual sexual conduct because he sometimes awoke the accuser with a kiss. By this peculiar standard, virtually every long-term couple in the country consists of at least one rapist, and it seems hard to imagine that the accuser wasn’t similarly guilty of such behavior. This is precisely the sort of absurd standard about which Bader writes.

Despite having branded the accused a rapist, Brandeis (in what could only be an implicit recognition of the flimsy nature of the allegations) punished lightly, through a Disciplinary Warning, with no suspension. But as the complaint points out, this was nonetheless a life-altering decision: “[The accused] will now have to disclose, and defend himself against, his deeply blemished University record and reputation to every law school and professional graduate school to which he applies, to his political colleagues, to prospective employers and, should he run for public office, to the electorate.” And he certainly can’t count on anyone he has to tell understanding the strange nature of Brandeis’ process and definition of sexual assault. Indeed, according to the complaint, the accused already lost an internship and job offers as a result of Brandeis’ ruling, which was leaked to his potential employers.

 Who Needs Due Process? 

The Brandeis case resonates for two reasons beyond the specifics of events. First: perhaps the most typical defense of OCR is that the evisceration of campus due process is tolerable, since the worst fate the accused will suffer is expulsion from college. In this case, the accused wasn’t even expelled—but as is clear from the filing, he’s suffered significant consequences, and is likely to do so for years to come, absent a court ruling overturning Brandeis’ action. His fate, therefore, is a reminder of the moral obligation of colleges to do everything they can to get the decision correct—something that, sadly, occurs at very few universities today—before branding one of their students a rapist.

Second, the hyper-technical nature of Brandeis’ findings might well preview a next wave of cases, as more and more states move toward an affirmative consent standard that deems a huge swath of common romantic activity as sexual assault. As the filing in the Brandeis case makes clear, if the accuser in this case committed sexual assault, so have hundreds of thousands of other college students, all over the country.

It Could Have Been True, So Why Not Print It?

The long-awaited Columbia Journalism Review report of Rolling sabrina-rubin-erdelyStone’s UVA article, which ostensibly takes the magazine to task for falsely reporting a rape that never happened, sparked a new outcry from both the media and students on America’s college campuses.

They’re horrified that the report could have a chilling effect on students reporting sexual assaults.  No concern over the unnamed rapist, who students at UVA were quick to identify regardless. No concern that a decades-old fraternity was forced to close its doors and is now suing Rolling Stone for defamation. And no concern over accusations that may have ruined a young man’s chances in life, simply because he was “accused” without due process.

The report runs around 12,000 words, but this passage captures its strengths and weaknesses: “The problem of confirmation bias – the tendency of people to be trapped by pre-existing assumptions and to select facts that support their own views while overlooking contradictory ones – is a well-established finding of social science. It seems to have been a factor here. [Reporter Sabrina Rubin] Erdely believed the university was obstructing justice. She felt she had been blocked. Like many other universities, UVA had a flawed record of managing sexual assault cases. Jackie’s experience seemed to confirm this larger pattern. Her story seemed well established on campus, repeated and accepted.”

There was a confirmation bias here, but not the one CJR detected. The “confirmation bias”—one sadly far too common to the mainstream media, and one that CJR appears to share—involves the manner of covering sexual assault on campus. It’s a “scourge,” Geneva Overholser informed CNN’s Reliable Sources. She cited no evidence to sustain the point, and Bureau of Justice Statistics figures show that rape for non-college women is higher than for women who attend college, at comparable age groups.

The CJR quotes the story editor, Sean Woods, continuing to describe Jackie as a “rape victim,” and incredibly fails to press him on how he could render such a description. Rolling Stone editor Will Dana is quoted expressing dismay at how events developed—if the magazine only had realized that Jackie was a fabulist, inventing a tale of gang rape in pursuit of an on-campus relationship or as a crutch to rescue her when her academic standing was threatened. If so, Dana observed, Erdely could have simply summarized Jackie’s (false) tale “in a paragraph deep in the story.” The thesis of the article, however, seemingly would have been the same, according to Dana, since “there were plenty of other stories we could have told in this piece.”

These “stories” all came from Erdely’s reporting, as funneled through Woods’ editing. Why should anyone believe that these “stories” had any more credibility than Jackie’s, given that Rolling Stone appears to employ only true believers on the issue of campus sexual assault? Neither Rolling Stone—which isn’t firing anyone over the affair, and doesn’t seem intent on even making any noticeable editorial changes as a result of the hoax—nor CJR appeared interested in exploring the question. This is the same Rolling Stone, as Richard Bradley has noted, that recently offered a glowing, wholly non-skeptical review to the movie “The Hunting Ground,” which operates from a premise very similar to that which motivated Erdely.

Perhaps the most dispiriting item of the CJR report came in its concluding section, when authors Sheila Coronel, dean of academic affairs at the Graduate School of Journalism at Columbia University, Steve Coll, dean of the school, and Derek Kravitz offered three lessons for journalists from the affair. The third, entitled “holding institutions to account,” is the most off-putting. “Given the difficulties, journalists are rarely in a position to prove guilt or innocence in rape . . . .  [Analyzing how universities handle the accusation] can also make it easier to persuade both victims and perpetrators to talk.” So, having declared that journalists aren’t usually in a position to prove guilt or innocence, CJR did exactly that—there are “victims and perpetrators.” Two sentences later, the report’s authors use the word “accused,” as if “accused” and “perpetrator” are interchangeable.

CJR also recommends that reporters “gain a deep understanding of the tangle of rules and guidelines on campus sexual assault.” I couldn’t agree more. The first step in this would feature a reporter actually describing for readers what the university’s procedures are since many readers doubtless assume, incorrectly, that actual due process exists when schools consider a felony accusation. Yet CJR doesn’t recommend that reporters take this obvious step. Instead, they urge looking at “Title IX, the Clery Act, and the Violence Against Women Act . . .  directives from the Office of Civil Rights and recommendations from the White House.” In other words, all sources that accept as a given that a rape epidemic exists on college campuses. Notably absent from this list—defense attorneys or civil liberties organizations.

The CJR report faithfully exposes the journalistic errors committed by Rolling Stone. But because its authors appear to share the preconceived notions of journalists like Dana, Woods, and Erdely, it seems likely that anyone following the report’s advice would risk the same group think problem that destroyed Rolling Stone.