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.

Feds Lurch Toward Due Process in a Campus Sex Case

In a first for the Obama-era Office for Civil Rights, the Education Department’s OCR found in favor of an accused student who filed a Title IX complaint against Wesley College. At the least, after five years, we’ve finally found a case whose facts were so outrageous that even an OCR notoriously indifferent to due process couldn’t justify them.

The letter has received extensive coverage; the facts of the case are tawdry. At a fraternity in the Delaware school, two students had sex. Unbeknownst to the female student, the intercourse was streamed and witnessed (allegedly) by two other members of the fraternity. Two other students found out (from another fraternity member who had heard about the affair), went to the college, and an “investigation” ensued. Within seven days, all three of the accused students—the male fraternity member who had sex, and the two who allegedly watched—had been expelled.

The college violated multiple procedures in its handling of the case. It didn’t give the accused student a clear sense of the charges against him. It didn’t tell the student that the hearing (which would recommend his expulsion) actually was a hearing—the student thought it was a preliminary conference, so he had no witnesses to testify on his behalf. The college also gave the student an interim punishment—suspension—before the hearing, even though at that point of the “investigation,” the student had spoken to no one at the college about his side of the story.

Although the OCR letter doesn’t take a position on the matter, it suggests that the case  should never have been brought against the accused student at all. Wesley’s policy suggests that charges shouldn’t be brought against a student in a case without an accuser. In this instance, the accuser told Wesley administrators that though she hadn’t consented to the streaming of the intercourse, she didn’t believe the accused student had any role in the planning or execution of the event. Yet Wesley went forward with charges anyway.

The entire investigation and adjudication took a week. OCR investigators found that in 10 or the 12 most recent Title IX cases at Wesley, the matter had been resolved “in a matter of days.”

Though Wesley was the subject of the Title IX complaint, the real target could have been OCR itself. As FIRE’s Will Creeley has noted, “Given the many similarities between the procedural failures found by OCR here and those alleged by accused students in lawsuit after lawsuit over the past few years, chances are that Wesley College’s failings are far from unique.”

For instance, in its discussion of the threshold for imposing interim punishments, the resolution letter noted that “while a school must assess whether the presence of an accused student threatens the safety of individuals within the school community, a sufficient level of inquiry–that is not here evident–must be undertaken in determining the appropriateness of interim suspensions.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should consider the rights of accused students when imposing interim punishments. Will OCR now retreat from its enthusiastically championing of the interim punishment approach for all students accused of sexual assault?

Similarly, the resolution letter noted that “OCR has concerns, however, that the College’s expedited investigation of complaints of sexual harassment and sexual violence may have compromised the equity of such investigations.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should refrain from lightning-fast “investigations” and adjudications—indeed, OCR has been relentless in its pressure that colleges should speed things up. (Recall the Peter Yu case at Vassar as a particularly egregious example of how lightning inquiries frustrate pursuit of the truth.) Will OCR now abandon its pressure tactics on speed of inquiries, and encourage colleges to choose timeframes that allow students accused of sexual assault—who are, effectively, required to prove their innocence—enough time to prepare their case?

Finally, the letter is a striking testament to OCR’s hypocrisy. The only case specifically investigated involved treatment so unfair to the accused student that even OCR said the judgment had to be invalidated. Yet the general recommendations in the letter veered in the direction of changing procedures to increase the chances of guilty findings (more “training,” for instance, to remove a lack of “clarity” regarding the preponderance of evidence standard) or ensuring that more cases are adjudicated (fewer employees designated as eligible for confidential reporting). OCR expressly criticized the existing policy (which Wesley ignored in the case that prompted the complaint) of not having cases go forward without an accuser.

So, in short, while this case will need to be re-tried to allow the accused student to defend himself, the actual outcome of this letter is that more accused students at Wesley likely will be subjected to unfair procedures down the road.

Brown U. Messes Up Sex Assault Case, Accused Prevails

In campus sexual assault hearings, due process for accused students is rare, because of pressure from feminists and campus activists, administrators’ diffidence, and the Obama administration’s 2011 “Dear Colleague” letter that minimized protections for the accused.

Getting these cases into court for a due process trial is even rarer, but now the first such trial since the issuance of the “Dear Colleague” letter has ended with a victory for an accused Brown University student. Chief U.S. District Court Judge William Smith—as he had strongly hinted during oral arguments in mid-August—vacated Brown’s disciplinary judgment, arguing Brown had violated its own procedures, thus producing an unfair result.

Related: No Due Process, Thanks—This Is a Campus

The case involved student attempts to influence the judge, biased training of panelists in Brown’s sexual assault cases and the university’s extraordinary belief that flattery and flowers qualify as a manipulative part of sexual assault.

The case arose out of a fall 2014 incident where two members of the Brown debate team had oral sex after purportedly meeting (in a small room on campus) to watch a very late-night movie. In texts that flew back and forth between the two, the male student made clear his desire for no-strings-attached sex; the female was ambivalent, but signaled consent in some of her texts, while in others stating she wasn’t eager for sex. A few weeks later, the male student urged the female to put in a good word for him with a friend, with whom he wanted to have sex. These were not, to put it mildly, overly appealing characters.

Related: Don’t Bother with Due Process

In his 84-page ruling (which you can read here, and which both Robby Soave and Ashe Schow have also summarized), Smith identified three areas of misconduct by Brown (definition of consent, conduct of investigator, conduct of one of the panelists). Some of these issues were peculiar, related to the specific facts of this case, in which Brown had changed its policy between the time of the incident and the time the accuser decided to file her charges.

The decision has three areas of relevance, however, for matters beyond Brown. The first involves the “training” that the Office for Civil Rights (OCR) mandates all schools to provide to panelists in sexual assault cases. The equivalent in the criminal justice process would be if all jurors in rape trials (and only in rape trials) had to get training material—provided only by the prosecutors, designed to increase the chances of a guilty finding.

Anything Proves Sexual Assault

The inevitable result of this biased “training” manifested itself in the Brown case. After the incident, the accuser told a roommate what a great time she had with the student she’d eventually accuse; post-incident text messages sent by the accuser likewise indicated her having consented to sex. But one of the panelists, Besenia Rodriguez, said she didn’t consider the post-incident texts or conversations because her interpretation of Brown’s “training” suggested that sexual assault survivors behave in “counter-intuitive” ways. Therefore, she reasoned, “it was beyond my degree of expertise to assess [the accuser]’s post-encounter conduct . . . because of a possibility that it was a response to trauma.”

Rodriguez’s contention that her university-provided training shows that essentially any behavior—intuitive or counterintuitive—proves sexual assault “clearly comes close to the line” of arbitrary and capricious conduct, Smith noted. Yet the training Rodriguez received, and the mindset she reflects appears to be commonplace in campus sexual assault matters.

The case’s second key feature involves the pressure campaign—in the form of non-public e-mails—organized by a Brown student named Alex Volpicello. He even prepared a template—and dozens of students followed his lead and e-mailed Smith to urge him to uphold Brown’s handling of the case.

Volpicello’s ham-handed initiative predictably backfired with Smith. But the flurry of e-mails provided Smith with a glimpse of the witch-hunt atmosphere that exists on today’s campuses. He was deeply troubled, noting that “the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome.

These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.”

Alas, the anti-due-process activists have shown no interest in education. Indeed, Volpicello issued a statement denouncing Smith’s ruling as indifferent to “the emotional trauma of the survivor” and insulting to “the intelligence and civic awareness of us as Brown students.” “Where is the justice?” wailed Volpicello. Where, indeed.

Third, despite the victory for the accused student, Smith’s ruling was very limited. He appeared deeply reluctant to involve himself in a campus disciplinary matter and explicitly said Brown could re-try the accused student—even as he spent page after page detailing Brown’s dubious conduct in this case. (And this comes after he spent page after page detailing Brown’s dubious conduct in another sexual assault case.) Nor did he pull any punches about the absurdity of Brown’s current policy, which defines sexual assault as including such behavior as a male student giving a female student flowers, or flattering her, in hopes of getting her to agree to sex. As Smith noted, Brown defines such manipulative behavior as sexual assault.

As FIRE’s Samantha Harris perceptively noted, “Smith’s opinion also makes quite clear that the court takes no legal issue with the substance of Brown’s new Title IX policy, which employs an affirmative consent standard and uses a single-investigator model to resolve claims . . . Courts are deeply reluctant to interfere in the inner workings of university judicial systems, particularly at private institutions . . . When we talk to the families of students facing serious misconduct charges at private universities, they often express shock at how easily the school can jeopardize a student’s future while giving him or her so few rights. This case, while a legal victory for the plaintiff, underscores this problem.”

In his opinion, Smith contended that he could strike down only a college disciplinary system that “tends to injustice.” If a system whose personnel regularly violate students’ rights, while defining the giving of flowers before sex as a sexual assault, and amidst a witch-hunt atmosphere doesn’t tend to injustice, what type of system possibly could?

Rolling Stone Goes to Trial

A lawsuit stemming from the most famous of the modern rape hoaxes—the Rolling Stone account of a brutal but fictional attack on “Jackie” at a University of Virginia fraternity—gained ground last week.  A federal judge in Virginia ruled that UVA administrator Nicole Eramo’s lawsuit against Rolling Stone should go to trial.

The lawsuit has been of enormous value in producing documents that exposed both the closed-minded incompetence of Rolling Stone and the poisonous, guilt-presuming campus atmosphere at UVA. However, unlike the lawsuit filed by the Phi Kappa Psi fraternity (reporter Sabrina Rubin Erdely’s chief target), an Eramo victory would send, at best, a mixed message.

Judge Glen Conrad’s ruling allowed Eramo’s suit to proceed on multiple grounds. The dean’s strongest claim involves Rolling Stone’s manipulation of a mundane photo of her, to give her wild, almost devil-like eyes, with her back turned to victims demanding justice. Even the Rolling Stone fact-checker, who independently concluded that the fantasist “Jackie” was telling the truth, worried that the photo was too harsh.

Conrad also greenlighted a count involving Erdely’s claim that Eramo had discouraged Jackie from reporting her non-existent attack because she worried that UVA would develop a reputation as a “rape school.” It seems very unlikely Eramo—who comes across in the depositions as a true believer about a campus rape panic—ever uttered such a remark. But Erdely had two sources suggesting otherwise (Jackie and a fellow campus activist), and UVA refused a request to let Eramo be interviewed. Perhaps that will be enough for Rolling Stone to prevail.

Other aspects of Eramo’s lawsuit, however, are deeply troubling. The UVA Dean gathered support from a variety of campus activists—Emily Renda, Sara Surface, and Alex Pinkleton—with a de facto goal of ensuring that the discrediting of the Rolling Stone article won’t discredit their joint cause of fueling a moral panic about the issue of campus sexual assault.

In depositions for the lawsuit, the activists framed Erdely as an irresponsible journalist (which is not hard to do)—but not because she was a closed-minded ideologue who had reached her conclusions before she did any investigation. Rather, the trio of activists criticized herafter the fact—for focusing on Jackie and Eramo, and not on what they see as the epidemic of victims on campus, and the indifference to them of administrators other than Eramo. So in this view, Eramo is a victim of Rolling Stone, but the magazine’s basic thesis was correct.

One Erdely source, Alex Pinkleton, summarized the view of the activists that people must not let Jackie’s lies get in the way of the preferred narrative. “We need to remember,” said she, “that the majority of survivors who come forward are telling the truth.” How people who did not tell the truth about being sexually assaulted could still be considered “survivors” Pinkleton has never explained.

It would not have been difficult for Rolling Stone to have discredited these activists’ depositions—after all, each of them vouched for the veracity of Jackie’s tale in their interviews with Erdely, and each seemed to be eager for the Jackie story to be told at the time. But Rolling Stone ultimately shied away from portraying these figures as the non-credible witnesses they are. The magazine probably had no choice—because Erdely had relied so heavily on them for her article. Moreover, Conrad’s ruling cited the depositions of these non-credible activists as proof that three individuals “advised Erdely that her portrayal of Eramo was inaccurate.”

Perhaps the oddest section of Conrad’s ruling dealt with Rolling Stone’s December 5, 2014 Editor’s Note, which disavowed the story. Eramo claims that because Rolling Stone only said it no longer believed Jackie, and because the magazine did not remove the allegedly defamatory statements about the dean, the disavowal constituted a republication of the attacks on Eramo. This interpretation is bizarre. Jackie was the story.

The repudiation of her truthfulness repudiated the entire article. I cannot imagine how anyone—except, perhaps, the activists who are now riding to Eramo’s defense—could have interpreted the disavowal as Rolling Stone expressing full confidence in everything else Erdely wrote about UVA.

In her deposition, Erdely expressed regret—not to the fraternity members she falsely accused. (She has never apologized to them.) Rather, she said that she wished that instead of orienting her article around Jackie, she had chosen another accuser (“Stacy”) to serve as the article’s spine. The rest of the article would have remained unchanged—and since Stacy’s story was (it seems) not self-evidently false, Rolling Stone would have needed to make no retraction.

I suspect if Erdely had followed that course, none of the activists currently defending Eramo would be on the UVA dean’s side. Ironically, despite the lawsuit, the opinions of campus sexual assault held by Erdely, Eramo, and the UVA activists seem to be almost identical.

The Alarming Decline of U.S. Political History

One of the year’s most important essays on higher education appeared earlier this week in The New York Times op-ed page. Historians Fredrick Logevall and Kenneth Osgood wrote of the decline of U.S. political history. “The public’s love for political stories,” they correctly noted, “belies a crisis in the profession. American political history as a field of study has cratered. Fewer scholars build careers on studying the political process, in part because few universities make space for them. Fewer courses are available, and fewer students are exposed to it. What was once a central part of the historical profession, a vital part of this country’s continuing democratic discussion, is disappearing.”

Related: A Big Campus Trend–Ignorance of U.S. History

As someone who almost lost his job in part because (as a former colleague put it in a then-secret letter), my scholarship took the “old-fashioned” approach of focusing on “figures in power,” I obviously share the concerns raised by Logevall and Osgood. I’ve made similar points about the field at Minding the Campus and in Congressional testimony.

The two historians also offered a solution: “What is needed, to begin with, is for university administrators to identify political history as a priority, for students and families to lobby their schools, for benefactors to endow professorships and graduate fellowships and for lawmakers and school boards to enact policies that bolster its teaching—and without politicizing the enterprise.” They’re absolutely right, of course, that history departments won’t solve the problem (though I suspect the reason is less “tight budgets” than the fact that the departments, through their hiring policies, created the problem in the first place).

I’m dubious that administrators will do anything about the issue; only a reckless administrator takes on faculty on personnel matters when faculty has strong ideological objections. And based on what we saw from student protests in 2015-2016, restoring U.S. political history seems unlikely to be a central concern (despite the fact that political, and diplomatic, history classes tend to be very popular with students). I agree that state legislatures are fully within their rights to bolster the teaching of political history, especially since—as at schools like CUNY—state policies require public school history teachers to get M.A. degrees, on the theory that this knowledge will train the students to be better teachers. If history departments don’t hire specialists in the areas that states need to have taught, why should states continue to prop up these departments through the tuition dollars from M.A. students? Trustees also should play a critical role. They can and should be far more involved in ensuring pedagogical diversity in key departments, including (and perhaps especially) history.

Related: Big History Kicks American History to the Back of the Class

The op-ed has (appropriately) generated lots of positive responses. Academic criticism has come from two sources—one of which is correct but not germane to the point Logevall and Osgood raise, and one of which unintentionally proves their point.

The first noted that good work in political history sometimes comes from people outside of history departments. True. To take some examples from my experience: whenever I teach an M.A. or Ph.D. class in political (or constitutional) history, I assign at least one book by Kevin McMahon, a Trinity political scientist who’s written on FDR and Nixon. The next time I teach my undergraduate course in recent political history, I’ll use this article on the state marriage equality debates from Anthony Kreis, currently on the faculty of Chicago-Kent Law School. (Kreis’ work is also a reminder to historians that if we don’t write about recent events for which lots of sources are available, we cede the topic to non-historians.) And Robert Mann of LSU, who holds chairs in journalism and mass communication, is the author of one of the two or three finest histories of the Senate.

The fact that some academic non-historians write good political history, however, isn’t a reason why history departments shouldn’t hire specialists in U.S. political history. Imagine the reaction if (say) political science departments started not hiring specialists in race or gender in U.S. affairs, because those topics are already extensively covered in history departments.

Related: The Campus Assault on American History

Critical reaction was more troubling. Here was the New School’s Claire Potter (a 1990 Ph.D. whose sole published monograph appears to be War on Crime: Bandits, G-Men and the Politics of Mass Culture), tweeting to six other historians: “According to @nytimes we don’t exist.” It’s not clear to me why—even if Potter is correct that all seven of these people were hired in U.S. political history—the existence of seven U.S. political historians among the nation’s 7000 universities would undercut the Logevall/Osgood thesis. The reaction of Potter and her correspondents, however, seemed to reflect a general argument that Logevall and Osgood have misunderstood the nature of the field—overlooking what once was called the “new” political history, or a “re-visioned” political history, which sees the field as more attuned to themes in social history, or urban history, or elements of identity politics.

Some of this history, of course, is excellent—such as the work of Tom Sugrue (who unsurprisingly dismissed the op-ed) or Nancy Cott. But, as an approach, the “new” political history envisions a narrowed, not broadened, field—one in which it’s difficult to fit in most elements of congressional or even presidential history, or institutional histories of the government, or public policy histories that don’t correspond to identity politics or urban themes, or many types of political biographies, or the history of campaigns and elections. “The most interesting scholars blend the older fields,” as Potter euphemistically put it.

I suspect, for instance, that someone like Potter would not be pleased if gender history as a field generated few jobs; and that a significant portion of the diminished tenured or tenure-track positions in the field had gone to specialists in biographies of female members of Congress, with a heavy focus on their committee work. Such studies could be considered gender history. But they’d obviously represent only a small segment of the field.

It’s good to see Logevall and Osgood speaking out, and I hope their op-ed makes a difference.

More on the Sex Panic at Yale

The bizarre procedures of Yale’s sprawling sexual assault bureaucracy may well be the worst in the nation. We have come to realize this because Yale is the only university to publicly document all campus allegations of sexual assault, the result of a 2012 agreement with the Obama administration. Reports issued by Deputy Provost Stephanie Spangler don’t provide much detail, but with each new report, we see more clearly a campus environment characterized more by witch hunts than a pursuit of justice.

Consider this item: “An administrator informed a Title IX Coordinator that a Yale College student reported that another YC student made unwanted advances.” On the basis of this third-hand allegation, a current Yale student is being investigated.

The most recent Spangler Report, just published, says 20 Yale undergraduates were accused of sexual assault in the first six months of 2016. Twenty-six undergraduates filed sexual assault complaints. Assuming all were female (the source of around 99 percent of campus complaints), it would mean an annual violent crime rate for Yale undergraduate women of 1.9 percent, without taking into account any attempted murder or felony assault claims. That would be just under the annual violent crime rate for the city FBI stats deem the most dangerous in the country, Detroit.

Yet Spangler, it seems, believes her campus is actually far more dangerous for undergraduate females than Detroit. “We know,” she writes, “from both national statistics and our own participation in the 2015 AAU Sexual Climate Survey that this number represents only a fraction of the instances of sexual misconduct at Yale.” Actually, we “know” no such thing—as my colleague Stuart Taylor has pointed out, the AAU survey appears to have dramatically oversampled female students who reported a sexual assault to their school.

Here are some revelations from previous Spangler reports:

  • There is an increasing pattern of Yale’s Title IX office filings complaints on their own, without a formal complaint by the alleged victim, and odd investigations based on anonymous complaints—and sometimes with anonymous targets
  • The “resolution” of a complaint against a professor was reported, with a chair to “monitor” him, even though the professor has never officially been informed of the complaint
  • A student was punished though even Yale’s due process-unfriendly system had found not culpable for the allegations against him
  • Students have been charged under a vague standard that included “emotional or economic abuse” by “roommates”
  • Yale has redefined “sexual assault,” attributing to the term “broad ranges of behavior” that neither the criminal law nor common cultural understanding would define as sexual assault. As a result, no one can really be certain about what constitutes “sexual assault” at Yale.

Limiting Information

The Spangler reports always have seemed designed more to stimulate a sense of panic on campus than to actually convey information. The reports have tended to provide minimal amounts of information—ostensibly for privacy reasons, though Yale could easily provide more detail than it does and still ensure anonymity.

The only time Yale provided more information came in response to criticism from the accusers’ rights movement and its media allies. A 2013 biannual report had revealed that while several students had been found guilty of “sexual assault,” Yale hadn’t expelled any of them. Showing the university’s extraordinary sensitivity to criticism for not being tough enough on campus rape (just the type of sensitivity that attracted the notice of the Second Circuit, when it reinstated a Title IX lawsuit filed by an accused student at Columbia), Yale rushed out with a clarifying statement, as well as a document describing a host of conduct that it considered sexual assault but virtually no one else would. The implication—the students found guilty of “sexual assault” really had committed no such offense.

But while Yale is worried about not looking tough enough on sexual assault, it doesn’t seem to worry about not providing information that might cast doubt on the suggestions that the university is experiencing an unprecedented crime wave. Beginning this August, Spangler has revised her report to exclude details for cases that don’t move into the investigation phase. Instead, the report provides only statistical tables with the filings, so Yale can still list these incidents as campus sexual assault claims, thereby heightening the sense of panic. Spangler argues that Yale has taken this course because “those categories contain complaints in which no further action was taken,” and therefore “the descriptions provide little, if any, additional information.”

But this isn’t so. In fact, the descriptions of these cases were quite revealing. The now-suppressed data showed that these allegations often involved second-hand claims, in which a third party reported that a student whose identity he or she didn’t know was allegedly sexually assaulted another student whose identity the reporter didn’t know. That type of information demonstrated a seemingly panicked student body—and the absurdities of the university’s excessively broad definition of sexual assault. No wonder Spangler removed it.

The Numbers Lie

For Spangler and Yale, if the choice is between its own data (which is itself inflated because of how the university defines “sexual assault”) and dubious stats that reinforce campus beliefs, dubious stats will prevail. And so, Spangler reveals, a campus already frantic in its response to sexual assault has undertaken or will undertake “not only dozens of school and department based town hall meetings, but also workshops, curricular re-examination and design, the creation of local climate committees, the training of peer liaisons, and the expansion of bystander intervention programming to include features relevant to the graduate and professional student experience.”

The Incidents

Despite the high number in Spangler’s executive summary (26 female undergraduates filing sexual assault allegations in the first six months of 2016), only four of those cases made it to the UWC, Yale’s adjudication panel. And of those four, two accusers “withdrew” their allegations, for unspecified reasons. A third case remains pending. The fourth student was tried and unsurprisingly found guilty.

In contrast to recent patterns, the accuser—rather than a Yale Title IX officer—filed all four of these complaints. Though the previous version of the Spangler Report have claimed that the Title IX coordinator will take independent action “only in extremely rare cases, where there is a serious risk to the safety of individuals or the community, will the University take independent action,” that clause does not appear in the most recent Spangler report. Spangler provides no explanation for the revision.

A cynical person might assume that the excision was caused by Jack Montague’s lawsuit, since the complaint against the former Yale basketball captain was filed not by his accuser but by a Title IX officer, even though under no conceivable interpretation of the facts associated with his case did Montague pose a “serious risk to the safety of individuals or the community.” Montague’s expulsion is mentioned in the current report (as an update to cases first referenced in the fall 2015 report, which had contained the “extremely rare” language); though he isn’t identified, the filing of the complaint by the Title IX officer, and his expulsion, are the giveaways.

Consider this item, which seemingly illustrates a chilled classroom environment: “A faculty member reported that a YC student made inappropriate comments in a classroom. A Title IX Coordinator investigated and determined that the conduct did not constitute sexual misconduct and referred the matter to other campus officials for further action.” Since the student—who was nonetheless subjected to an investigation for doing nothing wrong—wasn’t even charged, why was he referred to “other campus officials for further action”? What was this “further action”? Spangler doesn’t say.

Finally, the report has two separate instances in which graduate students made allegations of “improper comments” against two professors. But both times, the students didn’t file charges. It didn’t matter: even though without the charges there was no investigation to determine the truth, in both instances, Spangler reports that the Title IX officer and relevant department chair “will monitor the [professor’s] interactions with students.”

Another reminder that the Yale faculty’s decision to remain largely silent about the assault on their students’ rights will ultimately threaten their own rights as well.

Why Colleges Don’t Have Fair Hearings on Sexual Assault

Some politicians and media outlets seem to believe that college and university campuses are beset by a culture that is indifferent to rape and that the procedures for investigating and adjudicating claims of sexual assault are so one-sided as to constitute gender discrimination against female accusers. In reality, schools for decades have denied meaningful due process to students accused of sexual assault, and mandates from the U.S. Department of Education have only made the problem worse.

Far from condoning criminal activity, American college administrations are so concerned with ideology, federal funding, and public perceptions that they punish innocent students. Examples from four elite institutions—Yale, Amherst, the University of North Carolina, and Occidental College—reveal unfair procedures that come close to presuming guilt and severely restrict the opportunity for accused students not only to defend themselves, but even to prove their innocence. The problem continues to grow worse, and there is as yet no sign of a return to due process in campus tribunals.

Related: Another Unbalanced View of Campus Sex Hearings


  1. An April 4, 2011, U.S. Department of Education Office for Civil Rights document dramatically reinterpreted the sexual assault case procedures required for colleges to comply with Title IX.
  2. Threatening the withholding of federal funds, the OCR ordered all colleges to adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard rather than the stricter beyond-a-reasonable-doubt standard.
  3. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings, the new standard makes it too easy to “convict” the accused.
  4. The OCR also ruled that colleges that allowed appeals in the disciplinary process must allow accusers to appeal a not-guilty finding, something that would not happen in the criminal system because of prohibitions on double jeopardy.
  5. Even before issuance of the new OCR document, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

Related: What The Rolling Stone Affidavits Show

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) released a document dramatically reinterpreting Title IX, the federal law that prohibits gender discrimination in colleges and universities that receive federal funds. The document issued by the OCR was a “Dear Colleague” letter, an allegedly informal agency guidance that Department of Education officials claimed did not need to follow notice-and-comment rulemaking pursuant to the Administrative Procedure Act.

The “Dear Colleague” letter specified the procedures that the OCR believed colleges and universities should follow in sexual assault cases in order to comply with Title IX. Although two Department of Education officials have publicly noted that the letter does not have the force of law, this concession does not change its practical effect, which is to coerce universities into compliance. Moreover, each change in Title IX requirements found in the letter increases the likelihood of a guilty finding in a campus sexual assault case.

The Myth: Institutional Negligence

Since 2011, efforts by the Administration to bring universities into compliance with the new mandates have attracted widespread support from politicians and the media. President Barack Obama convened a White House summit on the topic, Vice President Joseph Biden oversaw a task force, and the OCR issued further “guidance” in the form of a 45-page question-and-answer document that also acted as an informal set of rules. In the Senate, Kirsten Gillibrand (D–NY) and Claire McCaskill (D–MO) have been the most outspoken supporters of this policy.

Both The New York Times and The Washington Post have published news articles portraying campuses as hotbeds of violent crime, with female students allegedly facing the risk of extremely high rates of sexual assault. The Times alone has run more than 20 articles on the topic since 2012, and the Post featured a multi-part series in 2015 based on a poll contending that one in five college women are sexually assaulted—a total it reached in part by redefining sexual assault to include such things as sex “coerced…through verbal…promises.”

Related: Georgetown’s Survey Stokes the Rape Panic

At the heart of this campaign is a belief—sincerely held in some instances—that college and university campuses are beset by a “rape culture,” in which the procedures for investigating and adjudicating sexual assault claims are so one-sided as to constitute gender discrimination against female accusers. Only unprecedented federal intervention, according to this theory, can promote justice.

The Reality: American Colleges Railroad the Innocent

For those who have spent any time on campus in the past two decades, this argument seems counterintuitive. The contemporary academy is extraordinarily sensitive to real and perceived discrimination on issues of gender (as well as race and ethnicity). Faculties are increasingly dominated by race/class/gender pedagogy in the humanities and some of the social sciences, and there has been an explosion in the number of administrators responsible for dealing with student life and diversity issues.

Given these facts, it is difficult to see how the academy’s environment could be considered so indifferent to rape as to necessitate unprecedented federal intervention. The on-campus responses to the two highest-profile university rape claims of the past decade—the Duke University lacrosse case of 2006 and the University of Virginia allegations outlined in Rolling Stone in 2014—suggest that, far from being indifferent to rape, the campus environment tends to presume guilt even when faced with non-credible rape allegations.

Nevertheless, the Obama Administration issued new guidelines in 2011 directing colleges and universities to change the procedures they use to evaluate sexual assault allegations. These changes have the effect of dramatically increasing the likelihood that an accused student will be found guilty. Threatening the possible withholding of federal funds, the “Dear Colleague” letter:

Related: Problems in the Stanford Sexual Assault Case

  • Considered it a violation of Title IX to do anything but adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard, in effect ordering colleges to change their procedures. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings—a denial of meaningful legal representation, the lack of mandatory discovery of evidence uncovered by the college, and the inability of colleges to require testimony under oath—the new standard makes it much easier to “convict” an accused student.
  • Stated that colleges that allowed appeals in the disciplinary process (which means virtually all of them) must allow accusers to appeal a not-guilty finding, imposing a type of double-jeopardy principle for students accused of sexual assault.
  • Chastised colleges for taking too long to investigate and adjudicate complaints, with the Obama Administration suggesting a 60-day cap on the entire process.
  • Discouraged colleges from allowing accused students to cross-examine their accusers even in cases in which the accuser is the only witness in a disciplinary hearing that could end with the accused being found responsible for committing sexual assault.

Related: How the Feds Use Orwell to Apply Title IX

The “Dear Colleague” letter imposed a nationwide set of standards, and then-OCR head Russlynn Ali also made clear that the office would welcome the filing of gender discrimination claims by students against their own schools. On May 1, 2014, in a highly unusual move, the OCR revealed the identities of the colleges and universities under investigation (currently more than 200) but refused to “disclose any case-specific facts or details about the institutions under investigation.” The OCR’s inconsistent approach to transparency has left the public with the impression of widespread problems justifying a panicked federal response without the opportunity to evaluate the credibility of these complaints.

In response to the OCR’s guidance, several new campus groups addressing the issue of rape have encouraged self-described “survivors” to file Title IX complaints. The two most prominent, SurvJustice and Know Your IX, have opposed anything approximating fair procedures for college students accused of offenses—while effectively downplaying the idea of requiring colleges to turn sexual assault adjudications over to the courts. Know Your IX co-founder Dana Bolger explained why to The New York Times. The “college disciplinary system,” she argued, is superior to a “criminal justice system [that] notoriously fails rape survivors,” since “police disbelieve victims, prosecutors refuse to take on the majority of cases because they lack witnesses, the standard of proof is impossibly high and juries buy into the rape myths that saturate our society and acquit perpetrators.”

Although sexual assault obviously should not be tolerated and accusations of rape should be treated seriously, it is simply not true that American colleges are systematically turning a blind eye to such violence. The proliferation of activist groups on the side of “victims” suggests, if anything, an extreme desire to use the threat of severe sanctions to change cultural norms.

Related: Campus Surveys Inflate Rape Statistics

Case Study #1: Yale University

The first major Obama-era Title IX complaint came from Yale University. In October 2010, pledges to the Delta Kappa Epsilon fraternity shouted something crude, albeit not illegal. The resulting public backlash led to apologies from the fraternity members, suspension by the national fraternity of the local chapter’s ability to secure pledges, and abandonment of the university’s traditional free-speech absolutism to punish some of the students. The Yale Executive Committee declared that the statements “had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation’ and ‘imperiling the integrity and values of the University community.’”

The fraternity’s spectacle was crass and violated norms of basic decency, but The Atlantic’s Caitlin Flanagan observed that it also could be seen as an “obvious reaction” to the oppressive atmosphere of political correctness on campus. In Flanagan’s opinion, referencing the leader of the 1964 Free Speech Movement at the University of California:

[The] closest you’re going to get to Mario Savio—sick at heart about the operation of the machine and willing to throw himself upon its gears and levers—is less the campus president of Human Rights Watch than the moron over at Phi Sigma Kappa who plans the Colonial Bros and Nava-Hos mixer.

Despite apologies from the fraternity members and condemnation from the Yale administration, campus activists addressing the issue of rape seized on the incident to file a Title IX complaint against Yale. The administration quickly settled. In a voluntary resolution agreement with the OCR, the university agreed to hire various Title IX bureaucrats and to rework its campus sexual assault policy. That policy “encompass[es] broad ranges of behavior,” since the definition of sexual assault employed by Yale is “more expansive” than the one that is used by the federal government or local law enforcement. The university has never explained why it chose to redefine a term—sexual assault—commonly understood in both the law and culture, but in a 2013 document, it did provide examples of the sort of behavior that could lead the school to brand a student guilty of engaging in “nonconsensual sex.”

Related: Suing the Office for Civil Rights

Yale then set up a two-tier system to handle rape allegations. Formal claims would be handled by a newly created University-Wide Committee on Sexual Assault (UWC). The UWC process begins with an allegedly “impartial fact-finder” (whose employment comes through the university Title IX office, which has a repeat relationship with and is often attuned to the views of the regulators) who gathers “documents and conduct[s] interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint.” The investigator’s report serves as the evidentiary basis for the five-person committee that decides the fate of the accused student.

The accused student cannot call relevant witnesses unless he can prove to the panel in advance that he “can offer potentially relevant information that was not conveyed to the fact-finder.” In the rare cases in which a campus accuser also goes to the police, Yale’s disciplinary panel may—but is not required to—consider the evidence from an actual law enforcement investigation.

Finding the truth is all but incidental to Yale’s procedure. Lest the accuser be retraumatized (regarding an event that, at the time of the hearing, Yale has not established to have occurred), the accused student not only cannot cross-examine the accuser, but also has no right to be in the same room as she gives her testimony. The most input Yale allows the accused student is the submission of written questions for the panel to ask the accuser—if the panel chooses to do so. In essence, the accused student is found responsible for committing sexual assault if three of the five committee members find it more likely than not that a violation has been shown (usually, that the accuser’s version of events is more credible than the accused’s).

Related: Yale’s Case against Montague Looks Shaky

These “formal” hearings are a paragon of due process when compared to the second avenue for Yale accusers to present their complaints. Under an “informal” process, which Yale used in about a dozen cases in 2011–2012, the accused student has no right to present evidence of his innocence; indeed, in at least one case, the accused student was not even informed about the specifics of the allegations against him.

Yale Deputy Provost Stephanie Spangler justified this procedure by explaining that the university’s “goal is to achieve a resolution that is desired by the [accuser] and acceptable to the [accused].” Further, one goal of the university process is to help accusers “regain their sense of well-being.”

It is impossible to know what goes on behind closed doors, and perhaps the only real protection for a student accused through the informal process is a promise that the process will remain confidential. But in at least one high-profile case—that of former Yale quarterback Patrick Witt—an unknown party leaked the existence of a complaint first to the Rhodes Trust (Witt was under consideration for a Rhodes Scholarship) and then to The New York Times, which produced a front-page story that failed to describe the guilt-presuming procedures under which he was charged. There was no indication that Yale ever investigated, much less punished, the person or persons who broke the university’s rules and shared the information about Witt’s case. When he wrote about the experience several years later, Witt recounted that Yale’s policy “almost ruined my life.”

Witt was the first of many accused students victimized by Yale’s new policies. For at least a year, the university’s definition of sexual misconduct was so broad as to include “emotional or economic abuse” by “roommates.” In one instance, a student was found not guilty but was nonetheless punished by the university, which ordered him to take “sexual consent training,” and on several occasions, Yale undertook investigations based on anonymous complaints, raising concerns that the new Title IX process could be used for revenge or ideological targeting.

Related: Accused, Expelled, and Smeared as a Rapist—at Yale

Among the faculty, an unknown male professor was subjected to a sexual harassment complaint from a female colleague. Yale investigated by speaking to the accusing professor and to the department chairman—but never informing the accused professor that charges had been filed against him, thereby robbing him of an opportunity to defend himself. The inquiry ended with the department chairman formally monitoring the male professor for an indefinite period. This incident produced scant public dissent among the faculty.

Case Study #2: Amherst College

As occurred with the fraternity pledge incident at Yale, a single event triggered Amherst’s explosion of Title IX activism. In October 2012, a former student named Angie Epifano penned a lengthy recollection of her experience as a self-described survivor of sexual assault. In May 2011, she wrote, a student acquaintance raped her. She did not report the incident to police, nor did she want the case adjudicated by a campus tribunal: “No thank you, I could barely handle seeing him from the opposite end of campus; I knew I couldn’t handle that level of negativity.”

Epifano alleged shocking treatment from Amherst administrators. She claimed that the college’s sexual assault counselor, Gretchen Krull, told her not to report the crime and instead advised her to “forgive and forget.” Soon thereafter, an Amherst dean, concerned about the student’s mental health, denied her request to study abroad in Africa. The dean allegedly informed her that “Africa is quite traumatizing, what with those horrible third-world conditions: disease…huts…lions!”

A campus administration committed to the truth might have asked some hard questions about Epifano’s veracity. On a campus already known for its political correctness, for an unidentified dean to have made disparaging remarks about Africa seems extraordinarily unlikely.

Related: Railroading the Innocent in Cincinnati

On October 18, 2012, Amherst President Carolyn “Biddy” Martin uncritically accepted Epifano’s presentation of events as “horrifying” and promised “consequences,” either with “procedures or [with] personnel.” Within a few days, Gretchen Krull had resigned, with some speculating that she had been made a scapegoat. Martin then appointed an eight-person committee to develop a new sexual assault adjudication procedure. A professor of women’s and gender studies chaired the panel, whose only other faculty member specialized in African–American literary and cultural studies; a campus activist addressing the issue of rape, Liya Richtman, represented student views.

Future Know Your IX co-founder Dana Bolger, an Amherst student, hoped that the policy change would create a new culture on campus, since “we have all, at some time, in some way—through our jokes, our questions, our arguments—silenced a survivor” and “at some time, in some way, exerted our respective privileges—male, white, heterosexual, disgendered, able-bodied—to silence our peers.” The idea that 21st century Amherst College is dominated by white, heterosexual, male privilege suggests an unusual interpretation of reality. The type of guidelines developed in this ideological mess was unlikely to treat any accused student fairly, but it remained unclear whether Amherst’s new policy was so one-sided as to prevent even an innocent student from defending himself.

For several months, despite the claims of activists that Amherst was a campus awash in sexual assaults, no cases were filed to test the new system’s scope. Then, in late 2013, Amherst got its first post-Epifano claim.

In a column published in June 2015, Washington Post blogger Radley Balko wondered why so many high-profile campus rape allegations have proved to be unfounded. He offered several reasons, including the following:

It may be that activists deliberately seek out and champion the ambiguous cases to demonstrate their commitment to the cause. This is pretty common among ideologues. (I see it often among my fellow libertarians.) You show your bona fides by taking a hard line even on those issues, incidents and scenarios that scream out for subtlety. You see this in some of the reform proposals put forth by anti-campus rape activists, such as laws requiring explicit consent before each progression of sexual activity or in staking out absurd positions such as “drunk sex is always rape.”

Balko could have been describing the Amherst case, which arose out of an incident in February 2012. Following an apparently consensual sexual encounter with another student, the female accuser apparently had a change of heart. She also eventually fell in with a new group of friends: many of the campus activists addressing the issue of rape who were energized by the Epifano essay. By fall 2012—inspired, she wrote, by Epifano’s article—she published an essay at AC Voice, a webzine for which several in the group wrote. The female accuser now reinterpreted the incident of the previous semester as a sexual assault in spite of the fact that most of the accuser’s anger appeared to be directed not at her alleged assaulter, but instead at a “former friend” who had treated her contemptuously after discovering who the accused man was.

Related: How Title IX Became a Policy Bully

The female student waited for another year before filing a sexual assault claim at Amherst, and the investigation and adjudication of the case showcased the unfairness of the college’s new policy—which, to be clear, is typical of how most schools now handle the issue. A hired investigator spent a day on campus interviewing witnesses; when asked whether she had any text messages or e-mails about the incident, the accuser said that she had none. During the hearing, the accuser admitted that she had texted after the incident, but none of the panelists asked her to explain why she had told the investigator otherwise. To corroborate her assault claim, the accuser said that she had invited someone over to her room after the incident to talk and comfort her. None of the panelists asked the identity of this mystery witness, who had not been interviewed by Amherst’s investigator.

Moreover, the accused student could not raise these questions effectively: Prohibited from having a lawyer by his side in the hearing, he was required under Amherst’s new rules to submit written questions for the accuser before the hearing. As legal blogger Scott Greenfield has noted:

Submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether [the accused student] is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.

The accuser said that she had consented but in the middle of the process had revoked that consent; the accused student said that he was too drunk to recall anything that happened. This portrayal of events was enough for the panel to find the accused student responsible. Amherst promptly expelled him.

Related: Why ‘Yes Means Yes’ Rules Can’t Work

The accused student hired a lawyer who subsequently uncovered considerable evidence undercutting the accuser’s credibility, including post-incident text messages (which the accuser had implied to Amherst’s investigator did not exist). Any fair investigation, of course, would have discovered this at the time. Amherst’s response? The accused student had failed to uncover this information within seven days of the disciplinary hearing, so he was now out of luck.

The student filed a federal lawsuit, which remains pending. In that lawsuit, Amherst has contended that the process worked as the college intended in this case.

Case Study #3: University of North Carolina at Chapel Hill

While Amherst was finding an innocent student responsible for rape, another incident occurred at the University of North Carolina at Chapel Hill (UNC). Inspired by the activities at Amherst and Yale and in constant contact with the accusers there, she later told The New York Times, a student named Andrea Pino stepped forward.

Pino claimed that in March 2012, another UNC student raped her at an off-campus party. (Because she has admitted that she had never seen the man before that evening and never saw him again, she left it unclear as to how she concluded that her attacker attended UNC.) Pino elected not to report the alleged assault to police, nor did she file a complaint through the university because, she later said, unnamed other students doubted that it would do any good. Instead, Pino went to a UNC academic employee about her plight, and this person allegedly told her she was lazy.

The identity of the unnamed figure who made the “lazy” remark has shifted depending on the reporter interviewing Pino. According to Inside Higher Ed’s Allie Grasgreen, Pino said that “an academic adviser told her she was lazy when her experience impacted her performance in the classroom.” ESPNW’s Allison Glock, on the other hand, quoted Pino as saying that “when I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina.”

Related: Ten Campus Rapes—Or Were They?

Neither Grasgreen, who identified the “lazy” comment as coming from an academic adviser, nor Glock, who quoted Pino as attributing the remark to a professor in one of her courses, appears to have reached out to the unnamed academic adviser/professor for comment on whether Pino’s story was actually true. Nor did the documentary filmmakers responsible for The Hunting Ground, which presented Pino’s tale uncritically. Again, it is very unlikely that a UNC professor or academic adviser, having been informed by a student that someone had raped her, would respond by calling the student lazy.

As Pino was portraying herself as victimized by a gender-hostile administration, UNC was actually revising its policies to make it easier for students like Pino to see their alleged attackers found guilty. In 2012, the university removed sexual assault cases from the jurisdiction of its Student Honor Court and turned them over to a special new panel that handled only allegations of sexual assault, claiming that students could not be sufficiently trained to handle such cases fairly. Given the timing, however, this decision appears more likely to have been motivated by a desire to accommodate the OCR’s “Dear Colleague” letter, since the move allowed UNC to shift its burden of proof in sexual assault cases (and only in sexual assault cases) from the Honor Court’s standard of beyond a reasonable doubt to a preponderance of the evidence, something required by the letter.

Melinda Manning, an assistant dean of students, rejoiced at the abandonment of a policy that discouraged “victims” from coming forward. Summarizing the dean’s views after an interview,Inside Higher Ed’s Allie Grasgreen reported Manning’s view that the earlier system discouraged reporting by “requiring victims to be judged by a roomful of peers.” Of course, a university disciplinary system judges the accused students, not the accusers, and administrators should know better. Manning resigned the following year, claiming that unnamed UNC administrators had pressured her to underreport rape claims; the university fired back with a document claiming that Manning had underreported filings. The ex-dean joined several accusers in filing a Title IX complaint against UNC. As with all such documents, the OCR declined to make the filing public, and contemporaneous press reports suggested alternatively that it was damning or frivolous.

In any event, UNC spent nearly $200,000 on a consultant to rework its Title IX mechanisms and hired seven new staff employees to deal with the matter at an annual cost of around $500,000 before unveiling yet another new sexual assault procedure, this one even less friendly to the rights of the accused than the preceding one. By this point, North Carolina had passed a law requiring colleges to permit students accused of disciplinary offenses to have access to a lawyer. (North Dakota is the only other state to have such a law.) An investigator, hired and overseen by the Title IX office, is not compelled to share his or her evidence with the accused; he or she must only produce a draft of his or her report, effectively precluding the accused from offering exculpatory material during the process. Only under limited circumstances can the accused student introduce new evidence at the hearing.

The accused student’s attorney can examine a draft of the investigator’s report, but only by coming to UNC and promising not to photograph or copy the report. Once the hearing begins, the accused student’s lawyer, as dictated by state law, may attend it but may not cross-examine the accuser; he or she may only submit questions to the hearing chairman, who can ask the questions, modify them, or simply move on. The hearing procedures guarantee neither that the lawyer can even see the accuser as she gives her answers nor that he or she can cross-examine other witnesses.

The new procedures maintained the lower preponderance-of-evidence standard, but even though the OCR is silent on the issue of unanimous findings, UNC now allows a student to be, in essence, found responsible for committing sexual assault based on a two-to-one vote of the disciplinary panel. The guidelines do not explain why the university followed this course.

Even after a student graduates, he can still be sanctioned by UNC. The school allows the filing of anonymous reports of sexual assault to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” The policy’s wording suggests that the university simply assumes that the assault has occurred, based solely on the anonymous filing. UNC’s policy also has no equivalent of a statute of limitations, a deficiency that allows for the filing of complaints years after the alleged event even when both the accuser and the accused are no longer students at the school. Among elite universities, only Harvard has such an open-ended policy, which raises the question of whether a university could use a years-after-the-fact sexual assault claim to revoke a degree.

Case Study #4: Occidental College

On the West Coast, the most aggressive Title IX activism has been at Occidental College. As at UNC, Yale, and Amherst, Occidental appeared to have a disciplinary structure that denied meaningful due process to the accused. Well before “affirmative consent” laws were enacted in California, Occidental policy maintained that a student who obtained such consent could nonetheless be deemed a rapist. Many have criticized so-called affirmative consent policies as unrealistic and damaging. The college’s sexual assault policy denied the accused student a right to counsel in the proceedings while informing him that terms like “innocence” and “burdens of proof” were “not applicable.” A healthy majority of the undergraduates—currently 56 percent, with 57 percent in the most recently admitted class—are women, and 50 percent of the college’s professors are women.

Nonetheless, according to a small group of campus activists, the school turned a blind eye to sexual assault on campus. In 2013, a handful of self-described survivors, joined by faculty members Danielle Dirks and Caroline Heldman, formed a group called the Oxy Sexual Assault Coalition, or OSAC, which denounced the “yes-might-not-mean-yes” policy as insufficiently protective of accusers. The group adopted a tagline of “because rape is a crime”—even as Dirks (speaking, she said, “as a criminologist”) announced that she had “given up on the criminal justice system.”

OSAC had a preference for adjudicating sexual assaults through college tribunals, even though these assaults would usually be felony offenses in the criminal courts. As explained by Dirks, “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.” Celebrity attorney Gloria Allred involved herself, representing several Occidental students who filed Title IX complaints against the college, which quickly settled.

The college attracted national attention after expelling a student for rape—despite a police report concluding that no rape had occurred and despite text messages from the accuser checking on whether the accused student had a condom and telling a friend, “I’m going to have sex now.”]Occidental reached this decision by contending that while both students were intoxicated, the female student’s drunkenness rendered her unable to consent to intercourse that her own text messages showed she had initiated.

By comparison, even Yale’s “expansive definition of sexual assault” appears to exclude the kind of behavior that Occidental deemed rape. Yale’s guidelines cite an instance of the parties’ “send[ing] a few texts” discussing their plans for intercourse and then confirming those plans once they arrived in the bedroom as an example of “consensual sex.”

In an essay for the Harvard Law Review, Harvard Law professor Janet Halley criticized the “pressure on schools to hold students responsible for serious harm even when—precisely when—there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.” In 2013, the number of reported sexual assaults at Occidental increased from 10 (in 2012) to 60. This figure meant that Occidental alone, with a female enrollment of just over 1,100, accounted for 40 percent of the total increase in reported sexual assaults at all of California’s four-year public and private colleges and universities. As attorney Mark Hathaway has noted, Occidental’s rate of reported sexual assaults in 2013 was 16 times higher than that of the next 10 California colleges and universities combined. It could be, of course, that this Los Angeles liberal arts campus is a statistical anomaly and that it really is very dangerous, but such an interpretation seems very unlikely.


Campus activists addressing the issue of rape have assiduously conveyed the impression that such institutions as Yale University, Amherst College, the University of North Carolina, and Occidental College are led by administrators who ignore widespread criminality. Sexual assaults on college campuses do occur and are a serious issue, but justice requires procedures that afford due process both to accusers and to the accused. Yet even before the OCR’s “Dear Colleague” letter, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

(Reprinted with permission from the Heritage Foundation)

Faculty Unions and the Problem of Adjuncts

With the demise of the Friedrichs case, with the post-Scalia Supreme Court giving a 4-4 victory to organized labor, it seems likely that the faculty unions that currently exist at public universities will survive. At the same time, the increasing number of adjuncts creates a potentially awkward situation: should faculty unions equally seek to represent the interests of adjuncts and full-time faculty, even though full-time faculty have expectations of research and service, and are hired after national searches? Or should separate bargaining units represent part-time and full-time faculty?

Frozen in Time?

Recent developments at CUNY, highlighted in a Chronicle article, strongly suggest that separate bargaining units are the way to go. The CUNY faculty union, the Professional Staff Congress (PSC), is almost a caricature; the union’s leadership appears intellectually frozen in time in 1968 or 1969, desperate to storm the barricades one last time for the revolution. In the last year, the union gleefully threatened an illegal strike, as it organized screaming protests outside the CUNY chancellor’s residence. DC 37, which engaged in neither tactic, secured the same financial deal from CUNY.

(At CUNY, faculty and adjuncts are members of the same union. Faculty who don’t wish to join the union must pay an agency fee, which Bowen’s leadership team improperly sought to inflate. DC 37 represents some of the maintenance and custodial staff.)

Adjuncts over Full-Timers

PSC leader Barbara Bowen, whose “New Caucus” seized control of the PSC in 2000, provides a case study in how a union leadership consolidated its power by prioritizing the interests of adjuncts over full-time faculty. Shortly after coming to power, the new union leaders changed the dues structure from a flat fee to a percentage of salary—thus increasing the dues paid by associates and full professors, who now subsidized adjuncts’ dues. The stated purpose: getting more adjuncts to sign up as full union members, where their votes would be critical to Bowen’s first two (quite narrow) re-elections.

Bowen’s PSC then secured funding for extending health insurance to adjuncts—after telling her elected delegates that the program’s cost was figured into a subsequent final salary agreement, replacing what would have been a one percent salary hike. So, yet again, full-time faculty effectively subsidized benefits for adjuncts.

In the two most recent contract negotiations, Bowen’s PSC showed scant interest in meaningfully addressing the issue of faculty workload—even after a recent Brooklyn survey showed that full-time faculty considered this issue, not salary, their top priority. The new contract flipped the union dues issue on its head: a “signing bonus” was included as flat amount rather than as a percentage of salary. (Having a flat amount, in this instance, favored adjuncts over full-time faculty.) And, troublingly, the new contract also included a provision in which five-year adjuncts—who aren’t hired after a national search, and have no requirement of research—will receive three-year contracts during which they’re guaranteed six or more credit hours for each semester.

Eager for a Strike?

Despite this record, and almost incredibly, the Chronicle revealed that various adjunct leaders were complaining that the new contract contained insufficient concessions for them. “I just want to tell CUNY ‘No,’” proclaimed Ruth Wangerin, described as an activist in “CUNY Struggle.” (Wangerin seemed especially eager for an illegal strike.)

Another “CUNY Struggle” adjunct advocated rejecting the contract and aligning with “working-class” New Yorkers. And Sandor John, of a group called “CUNY Contingents Unite,” denounced the dangerous three-year adjunct as something that “helps management divide and conquer.” (John appears to see the CUNY administration as “management,” even though funding for CUNY comes from tuition and the state legislature.) Unlike the Board of Trustees, and despite the union leadership’s constant claims to be “democratic,” the PSC does not allow its delegate assembly meetings to be recorded. But rumors exist that complaints from adjunct activists dominated the last meeting.

Workload Not a Shared Interest

In the end, adjuncts and full-time faculty have fundamentally irreconcilable interests. For the full-time faculty, an ideal university would be one in which the only non-tenure track instructors would be visiting professors and graduate students getting teaching experience for when they go on the job market. But such a university—with positions filled after a national search—many current adjuncts (especially at institutions with desirable locations) could be left unemployed. And, as the CUNY experience shows, adjuncts (for understandable reasons) have little interest in such issues as faculty workload or faculty health insurance.

If a leadership like Bowen’s fails to appease adjunct activists, it’s hard to imagine any union leadership that would do so. The best approach would be avoiding faculty unions altogether. But given New York law, which allows the PSC to deduct compulsory dues from all CUNY instructors, two organizations—one to represent full-time faculty, the other to represent part-timers—would produce better outcomes.

Rare Court Ruling for an Accused Campus Male

Friday morning brought important news from the Second Circuit, which vacated a decision from Judge Jesse Furman in the Doe v. Columbia U. case, giving the accused student a rare new chance to prove his university denied him a fair proceeding. It was the first decision by an Appeals Court to deal with campus sexual assault since the Obama administration’s “Dear Colleague” letter raised strong pressure against accused students in campus sex hearings. (I had previously written about the Columbia case, and Judge Furman’s decision.) You can read the unanimous opinion here. The decision also will apply to pending lawsuits throughout the Second Circuit, including at Cornell, Colgate, and (perhaps most importantly) Yale.

A note on what wasn’t decided. This decision only overturned Judge Furman’s dismissal of the case; it only allows the claim to move forward. It does not resolve the merits of the case or (even) allow the accused student to survive a summary judgment motion. A spokesperson for Columbia said that the university doesn’t comment on pending litigation.

No Title IX Disparate Impact

The basic background: with only a handful of exceptions, accused students making Title IX claims have lost in motions to dismiss. While the Obama administration invoked Title IX even though only most (but not all) sexual assault victims are female, courts mostly have argued that argued that accused students can’t sue under Title IX, because only most—around 99 percent, according to one study—but not all accused students are males, and disparate impact lawsuits under Title IX aren’t allowed.

The Second Circuit articulated a more forgiving standard for how accused students can survive a motion to dismiss. It suggested that district courts evaluate these claims through the case law of Title VII (employment discrimination, which allows some disparate impact claims). The opinion also outlines the type of facts that could give rise to the possibility of gender discrimination:

The Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleges further that the University’s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue. Against this factual background, it is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.

Judge Furman’s decision had similarly acknowledged the existence of these protests—but had used them to opposite effect. He had contended that even if Columbia’s procedures were biased against accused students on grounds of gender, the university might have had a legally acceptable reason—avoiding the bad publicity that can come from having an insufficient number of guilty findings.

Repudiating Furman

In what Scott Greenfield termed an otherwise linguistically “tepid” opinion, the Second Circuit repudiated Furman’s rationale: “A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

The Impact of the Decision

Beyond allowing the Columbia student’s case to move forward, the decision has at least three immediate impacts:

  • The standard laid out by the Appeals Court for surviving a motion to dismiss on Title IX grounds—that the complaint suggests the university set up biased procedures in response to public pressure from the media, or from accusers’ rights groups—would seem to apply to virtually any elite school in the current environment. For instance, if the district court judge in Jack Montague’s case at Yale applies this decision faithfully, it’s virtually inconceivable that Yale will win a motion to dismiss.
  • There hasn’t been much consistency regarding political affiliation and decisions; there have been good and bad decisions written by judges of both parties. But it nonetheless was striking that this decision came from an all-Democratic panel—written by Clinton nominee Pierre Laval and joined by Obama nominee Christopher Droney and District Court judge John Koeltl, a Clinton nominee.
  • Although it technically was only one district court decision among many, Judge Furman’s decision was unusually influential, as FIRE’s Samantha Harris noted on Friday. That decision is now gone from the book

The case now returns to the courtroom of Judge Furman, who seems to have an unusual number of personal connections to the parties. His wife, Ariela Dubler, served as a professor at Columbia Law School from 2002 through 2014. (Dubler’s research specializes in “the legal regulation of sex and the family.”) And as he considers a new a complaint that strongly condemns the Obama administration’s policies, Furman’s brother, Jason, chairs Obama’s Council of Economic Advisors.

Another Unbalanced View of Campus Sex Hearings

Monday’s Chronicle of Higher Education featured an article by Sarah Brown, a very one-sided article,  on a gathering dealing with campus efforts to cope with sexual assault. It reviewed

a federally-funded program, the National Center for Campus Public Safety, to better train colleges in adjudicating allegations of sexual assault. “I want to get this right,” Brown quoted one investigator, articulating her strategy for interrogating accused students.

But the article, in fact, portrayed a gathering in which there seemed to be little interest in getting it right.  It shows no interest in fairness to the accused.

Related: Campus Surveys Inflate Rape Statistics

The piece doesn’t list any defense lawyers as speakers. It doesn’t appear as if anyone from FIRE or any other group devoted to academic civil liberties was invited to speak. Of course, a meeting of (say) the National District Attorneys Association might not feature such speakers, either. But the college process—supposedly—isn’t prosecutorial (one reason why colleges claim it’s OK to exclude lawyers from meaningful participation, and not to have discovery). It’s a neutral search for the truth. So why would a federally-funded organization, amidst a conference that wanted to “get this right,” hear only from those involved on one side of the process?

The dangers of one-sidedness appeared in Brown’s discussion of a panel entitled, “Interviewing the Respondent.” Brown paraphrased the advice given: “Ask about the (accusing) student’s background — where they’re from, what they do outside of class, and where they spend time on the campus. Ask about witnesses. Seek evidence, like text messages and social-media accounts.” She then quoted from one of the presenters, waiving a smartphone: “These are little miracles for corroboration.”

What’s missing from this is that the burden of proof is on the accuser, not the accused. (The article contained no mention that Margolis Healy, a campus safety firm, and its solicited presenters urged that investigators force accusers to provide electronic evidence that corroborates their claims—or recommended asking accusers how they spent their time on campus, or what they did outside class. Indeed, such questions almost certainly would yield a strong attack from groups like Know Your IX.) Moreover, one of the greatest shortcomings of the college process is that it lacks the legal power to obtain such evidence. An accuser making a false allegation, or a guilty accused student, will simply refuse to provide evidence that contradicts their version of events. And the school can do nothing.

More striking was the information Brown’s article didn’t contain. She mentioned that Margolis Healy coordinated the National Center for Campus Public Safety through a federal grant, but (oddly) didn’t reveal the amount of the grant. According to, through the end of 2015, Margolis Healy has received $5,854,732 in taxpayer funds, with the grant scheduled to continue until April 2017. The total grant thus seems to exceed $8 million.

Related: Weaponizing Title IX at Middlebury

And what sort of training does Margolis Healy provide? Brown’s article doesn’t say. I’ve previously looked at Margolis Healy’s unusual approach to training, in the context of its training of Middlebury’s sexual assault investigators. The training heavily relied on the discredited David Lisak; instructed Middlebury officials that they must “start by believing” the accuser (they weren’t supposed to use terms like “accuser” in their reports); and held that the investigator’s report “should not include . . . consensual language” or note that the “victim has inconsistencies with her story.” But what if the accused student wasn’t guilty, and the inconsistencies of the “victim” would prove the accused student’s innocence? That outcome doesn’t appear to have crossed the minds of the Margolis Healy trainers.

After the Middlebury piece appeared at Minding the Campus, Margolis Healy removed its training slides from the web. It would seem that—for around $8 million in taxpayers’ funds—the public has a right to know how, specifically, this firm trains colleges to reach the “truth” in sexual assault claims.

What The Rolling Stone Affidavits Show

University of Virginia dean Nicole Eramo’s lawsuit against Rolling Stone has produced hundreds of pages of documents on how the botched article about University of Virginia came to be published—and how UVA employees handled sexual assault claims.

Rolling Stone Rape Charge
False rape charges

Last week, Rolling Stone filed affidavits and notes from the key people involved in the project. I’ve provided excerpts from the affidavits of reporter Sabrina Rubin Erdely, editor Sean Woods, and fact-checker Liz Garber-Paul. Robby Soave has an excellent article with five take-aways from the material; Ashe Schow offers commentary. I recommend both pieces. In addition, a few items:

Rolling Stone’s defense is based on two points, which appear in all three affidavits: (1) that everyone at the magazine believed the accuser, “Jackie,” and had reason to do so; and (2) key people involved in sexual assault adjudications at UVA believed Jackie as well.

There’s no doubt that Erdely, Woods, and Garber-Paul believed Jackie. There’s also no doubt that each of them were ideologically inclined to believe Jackie. (Erdely, for instance, opened her “reporting” by speaking with the biased experts Wendy Murphy and David Lisak, and all of her interview subjects appear to have been people who agreed with her on the existence of a campus “culture of rape.”) Rolling Stone’s groupthink meant that every inconsistency in Jackie’s story, or unusual behavior on her part, was explained away as “consistent with other victims of sexual assault.”

And so behavior that might have raised red flags—Jackie claiming that her attacker would retaliate against her if Erdely contacted him (while she didn’t worry about retaliation once the article appeared); Jackie discouraging Erdely from contacting friends who could corroborate her tale; Jackie changing the number of assaulters—was dismissed or excused.

The only problem, of course, is that Jackie was a fabulist. Rolling Stone’s argument that the behavior of an actual victim and the behavior of someone inventing a gang rape are identical should raise significant concerns about the always-believe-accusers mantra.

Second, the Rolling Stone affidavits make clear that campus activists, and every UVA employee dealing with sexual assault matters that Erdely encountered, also believed Jackie. Rolling Stone highlighted the point for legal reasons: if all of the UVA apparatus, including Eramo, believed Jackie, how can Eramo sue Rolling Stone for publishing an article based on Jackie’s fantasies?

From the standpoint of policy, however, this material is chilling: if the UVA sexual assault bureaucracy believed that someone like Jackie was a victim, how could the process of which they’re a part possibly be fair? Ironically, since Rolling Stone, UVA’s policy has only grown more unfair, as the recent FIRE lawsuit indicated.

In this respect, Erdely actually had a great story—how a campus atmosphere of moral panic was exploited by a fabulist. But she was too closed-minded to see it.

Third, it’s striking that even as their case collapsed, those who Jackie had fooled didn’t change their underlying assumptions. Erdely, for instance, stated in her affidavit that he she had any sense that Jackie might be lying, she simply would have used another vignette to prove her campus “rape culture” thesis—without even stopping to wonder whether her initial assumptions, which had led her to trust Jackie, were wrong. Sara Surface, a UVA activist, told Erdely that Jackie was no longer credible—but rationalized, “I think trauma has done something to the details.” A few days later, another UVA activist, Alex Pinkleton, reminded the Washington Post that “the majority of survivors who come forward are telling the truth.” Pinkleton didn’t explain how the minority—who, by her framing, were not telling the truth—could be “survivors.”

And, perhaps, my favorite item from the affidavits: Editor Sean Woods said, “I stand by the statement that we verified the perpetrator’s existence.” If the case goes to trial, perhaps Rolling Stone could summon Jackie’s invented attacker, “Haven Monahan,” as a witness?

Georgetown’s Survey Stokes the Rape Panic

Both campus rape activists and their political allies—such as Kirsten Gillibrand—have consistently championed “campus climate surveys,” which they claim are necessary to provide more data about the purported epidemic of violent crime sweeping the nation’s campuses. It’s hard to argue against more data. But these surveys always are incomplete—they never ask about campus attitudes toward due process or what rights accused students should have. Moreover, their vague questioning seems designed both to confuse attitudes as to what sexual assault is, and to intensify the panicked attitude on campus. A recent survey at Georgetown accomplished both goals.

Related: Campus Surveys Inflate Rape Statistics

The survey’s topline, stressed by Georgetown president John DeGioia: “Thirty-one percent of female undergraduate students report having experienced non-consensual sexual contact.” If true, this finding, which would represent around 780 undergraduate students alone (although nearly one-third of this total indicated their victimization occurred off-campus at a location not affiliated with the university), would suggest that the Georgetown campus is the center of violent crime in DC’s Second Police District (the area within 1500 feet of Georgetown’s campus had only 19 reports of violent crime in the last two years).

Surely President DeGioia and the DC Police are engaged in intensive discussions to address the threat; perhaps a task force will be appointed? If so, the press release from Georgetown contains no indication. In fact, there isn’t a single known case of a campus climate survey leading to a university leader demanding an increased police presence to protect his or her institution’s students. This approach doesn’t fit the agenda of a movement that wants “#copsoffcampus.”

From this survey, Georgetown has promised multiple levels of action—including focus groups, a task force, required annual training for all students, and a new resource campaign. Presumably this will all cost (including staffing) hundreds of thousands of dollars annually.

As often occurs in surveys on this topic, female respondents outnumbered male, roughly 3-2. Georgetown weighted the survey for the actual total of Georgetown students without taking into consideration that the gender skew might have led to skewed results. Indeed, as occurred with the AAU surveys, internal data suggests such skewing. 22.8 percent of female undergraduates who say they experienced nonconsensual sexual contact by force say they reported this incident to the university.

The figure for female undergraduates who say they experienced nonconsensual sexual contact by force was 13.9 percent. According to the survey, that would mean just under 100 students made such a report. Yet according to the Clery Act database, only 25 students made such a report in the 2011, 2012, and 2013, and 2014 calendar years. This data would suggest that students who made a sexual assault report to Georgetown were substantially over-represented in the survey.

Related: Education Dept. Rules on Campus Rape Called Illegal

The data on the non-reporters was equally revealing. Around 77.2 percent of students who say they experienced nonconsensual sexual contact by force say they did not report the incident to the university. Of that total, more than 60 percent said they didn’t report because they believed what happened to them wasn’t serious enough. Perhaps large numbers of Georgetown undergraduates don’t believe sexual assault is serious. Far more likely: these students don’t consider themselves victims of sexual assault.

So what does the survey contain?

Some of the questions Georgetown asked students reflected the normal pattern of the campus sexual assault movement—framing the offense as far broader than its legal, or cultural, understanding, as a way of jacking up the final numbers. For instance, consider a question asked under the heading of “Bystander Intervention upon Witnessing Sexual Assault or Sexual Misconduct by Gender and Enrollment Status.”

77.1 percent of female undergraduates said they had “witnessed [a] drunk person heading for sexual encounter.” Consider the oddity of this question—part of a survey, recall, that’s producing enormous activities by the school. First, it asks students (who, given the context, might well have been somewhat drunk themselves) to judge the intoxication level of another student. Second, it then asks these students to anticipate what another student might or might not do. Finally, sex while drunk likely doesn’t constitute sexual assault, unless the student was incapacitated. So why is Georgetown classifying this question under “witnessing sexual assault”?

Did You Witness a Criminal Act?

At another stage, Georgetown asked whether respondents had “witnessed someone acting in sexually violent or harassing manner” (just under one-third of female undergraduates, listed as 2508 in the survey, said yes).  But these are two entirely different things—witnessing sexually violent behavior means asking whether the student witnessed a criminal act. Sexual harassment, while deplorable, isn’t criminal. Why did Georgetown choose to combine these two concepts?

The survey shows that some students appear to place themselves in very dangerous positions quite often. 1.3 percent of female undergraduates (which would translate to 32 or 33 students) say they have been the victim of “nonconsensual sexual penetration” four times or more as Georgetown students. Victims never deserve to be raped. But surely any responsible student life staff would want to know how so many students could have been victimized by violent crime so many times? This sort of question doesn’t appear to interest Georgetown.

Assaulted by a Faculty Member?

Likewise, more than 40 female students (1.7 percent) say they were sexually assaulted (extrapolating from the survey’s language, which always is risky) by a faculty member. Nothing in the current obsession with depriving accused students of due process rights will address this problem—which, if true, is very serious.

Around 27 percent of those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky) were victimized by someone without any affiliation with Georgetown. Nothing in the current obsession with depriving accused students of due process rights will address this problem.

More than a quarter of those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky) say they were victimized by the person they were dating. Did they continue dating this person? The survey doesn’t ask.

In about seven of ten cases involving those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky), the alleged victim had been drinking. A similar figure exists for the alleged perpetrator. Nothing in the current obsession with depriving accused students of due process rights will address the relationship between alcohol and sexual assault.

Seven of eight female undergraduates who say they experienced nonconsensual sexual penetration by force experienced no physical injuries in the process.

The Saddest Thing

Perhaps the survey’s saddest finding, however, is the following. Georgetown asked students to assess the “likelihood of experiencing sexual assault or sexual misconduct off campus at university-sponsored events.” (Leave aside the vagueness of “sexual misconduct” in the question.) Many students—at Georgetown or anyplace else—never will be “off campus at university-sponsored events.” Others will be so only in very restricted capacities—say, as a member of a (single-sex) athletics team—in ways that would make the opportunity for any type of sexual misconduct seem remote.

Yet according to the survey, 39.6 percent of female undergraduates said it was somewhat, very, or extremely likely that they would experience “sexual assault or sexual misconduct off campus at university-sponsored events.” This figure is quite likely higher than the percentage of female undergraduates who will even be “off campus at university-sponsored events.” And for most of those who do participate in such activity, it’s unlikely that more than 1 percent of their time at Georgetown would be spent “off campus at university-sponsored events.”

There’s no reason to doubt the genuine nature of this response. But the fear is an irrational one. The chances of four-in-ten Georgetown females being victims of sexual assault “off campus at university-sponsored events” would seem to be infinitesimal. The logical response of a university leader to signs of panic among his student body would be to soothe his students. Instead, DeGioia, like almost all other university presidents, has chosen to stoke the panic.

Basketball Star Sues Yale

Yale has brought controversial charges against two star athletes in recent years, both on the eve of their biggest games: quarterback Patrick Witt in 2014 just before the Yale-Harvard game (and when he was up for a Rhodes scholarship) and  Jack Montague, captain of the Ivy-League championship basketball tram just before this year’s  rare appearance in March Madness.  As promised, Montague has just filed suit against Yale.

His accuser said she had consensual sex with Montague three times before the alleged sexual misconduct and one time after. On the fourth occasion, his lawyer said, she joined him in bed, voluntarily removed all of her clothes, and they had sexual intercourse. Then they got up, left the room and went separate ways. Later that same night, she reached out to him to meet up, then returned to his room voluntarily, and spent the rest of the night in his bed with him.  You can read the full complaint here. I summarized the document here.

Four major points from the complaint:

1.) Why Did Yale Break Its Own Rules? Montague’s accuser did not file charges against him. Instead, a Yale Title IX administrator did so. Yale’s policies grant the Title IX bureaucrat this authority, but only in “extremely rare cases,” and only when “there is serious risk to the safety of individuals or the community.” In February 2016, Stephanie Spangler, who oversees Yale’s Title IX coordinators, told the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

Montague’s case was a claim filed by a former sex partner around a year after the two had slept together. Even his accuser didn’t claim that he was an “acute threat” (or any threat) to her at all. But if there was no “acute threat to community safety” from Montague, why did Yale pursue the case?

2.) What Would Discovery Produce? Montague has sued Yale—along with two Title IX administrators. The complaint certainly raises some troubling questions about one of those administrators, Angela Gleason. (As so often occurs in these cases, the administrators making key decisions seem to have a strong background in identity politics.) Gleason appears to have aggressively pressured the accuser to file a complaint against Montague—after the Yale bureaucrat learned from the accuser’s roommate about the basketball player allegedly having a “bad experience” with the accuser. According to the complaint, Gleason misled the accuser both about Yale’s policies and Montague’s disciplinary history.

The complaint plausibly suggests that Gleason wanted the accuser to file charges because Montague was such an inviting target—expelling a high-profile star athlete would prove Yale’s “seriousness” about confronting sexual assault. With whom did Gleason and other Title IX bureaucrats consult before deciding to go ahead against Montague?

3.) Yale’s Likely Response. In its public statements earlier in the case, Yale has telegraphed its response: citing material from the Spangler Reports (the twice-yearly documents summarizing all sexual assault cases on campus, which I’ve regularly analyzed), the university has argued that it doesn’t expel everyone accused of sexual assault. Therefore, its policies should be presumed discerning and fair.

The complaint uses these same reports, and other Yale sexual assault documents, to argue that—even assuming Montague was guilty, which looks like a big assumption based on the information, his punishment far exceeded comparably-situated Yale students. That disparity reinforces the theory that the university targeted Montague to send a message.

Another point: in its statement responding to the lawsuit, Yale touted its specially “trained” disciplinary panelists. But the university has, thus far, refused to reveal precisely what “training material” these panelists received. Since Yale considers this material so critical, will it make the “training” public?

4.) Yale and the Treatment of Athletes. From Baylor to Tennessee to Florida State, star athletes sometimes get special treatment in sexual assault cases. But when universities don’t make money from the athletics program, there’s scant evidence of favored treatment for athletes. Yale’s troubling attitudes toward due process when athletes are accused first came to light in the Patrick Witt case. It seems to have continued with its handling of Montague—where the complaint argues that the accuser was treated far more favorably than Montague.

One aspect of the Montague affair that has received insufficient attention is the treatment of the men’s basketball team. The basketball team—in a gesture of empathy for a friend going through a difficult time—wore warmup shirts with Montague’s nickname. In response, the players received vitriolic criticism (this Unite Against Sexual Assault Yale statement is representative), and, it seems, pressure from the Yale administration to issue an apology.

If the university were so sensitive to portraying Montague as guilty that it pressured other students to refrain from pro-Montague statements, how fairly could it have treated him?

Problems in the Stanford Sexual Assault Case

In a recent op-ed in the Washington Post Stuart Taylor, Jr. and I discuss the Brock Turner case at Stanford. We argue that the case proves that campus felonies like sexual assault are better handled by the criminal justice system than by campus tribunals—in no small measure because the public can have confidence in the Turner verdict in a way that would have been inconceivable with Stanford’s notoriously one-sided campus disciplinary process. The case thus gives the lie to campus rape groups like Know Your IX and their academic supporters, such as Stanford Law’s Michele Dauber, who have attempted to delegitimize the role of the police in handling campus felonies, at least when the felony is sexual assault.
A few other points from the case that deserve a mention:

  • The 6-month sentence imposed on Turner (along with a lifetime requirement that he register as a sex offender) has triggered a severe backlash. Given the backlash, as Jason Willick first pointed out, it’s very difficult to comprehend the far more restrained response to the 6-month sentence imposed on former Baylor football player Sam Ukwuachu. By virtually any measurement, Ukwuachu’s case (which, like Turner’s, also received extensive media attention) was more severe: the nature of his assault appears to have involved more violence; alcohol does not seem to have played any role in his crime; he seemed to have had a pattern of treating women violently; and he had no remarks comparable to Turner’s expression of remorse. Yet there was no national campaign to recall the judge in the Ukwuachu case, nor was his photograph regularly used in social media with a “rapist” theme.It would be interesting to hear from the accusers’ rights movement, and their media and academic allies, why they responded to the two sentences so differently. (I also agree, by the way, with the inappropriateness of the recall campaign against the judge, though I consider the sentence for Turner—like the sentence for Ukwuachu—too lenient.)
  • Before the judge issued his sentence, Michele Dauber, law professor at Stanford, wrote a letter to the judge demanding that Turner spend more time in jail than what the probation office recommended. Dauber said that she wrote because of her expertise on the issue—without revealing that she had previously disparaged the ability of the same prosecutor’s office that successfully tried Turner to handle campus rape cases.In her letter, Dauber conceded (correctly) that “the facts here are in some ways especially egregious when compared with many other assaults on campus.” She cited the public nature of the crime, and the fact that Turner and his victim were strangers. Just over a page later, however, Dauber suggested that “at Stanford, assaults that are very similar to this case are unfortunately all too frequent.” [emphasis added] Really? Cases similar to public assaults of strangers are “frequent” at Stanford?
  • In her letter, Dauber asserted, remarkably, that students who have committed sexual assault at Stanford “typically have participated in athletics.” [emphasis added] She cited no evidence for this claim. Given that the data on which such a claim could be based is confidential, Dauber either: (a) simply misled a judge; or (b) inappropriately revealed protected information. I’d bet on (a).
  • The Stanford Law professor justified her demand for a lengthier sentence (it’s worth pausing to consider the extraordinary nature of a high-profile left-wing law professor writing a judge to demand a sentence for a convicted criminal longer than the probation office recommended) by citing deterrence. It’s not clear why potential Stanford rapists would be deterred by seeing a classmate get a three-year sentence (plus lifetime as a sex offender, loss of a degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist) but would not be deterred by seeing a classmate get a six-month sentence (plus lifetime as a sex offender, loss of a college degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist). Dauber did not explain how she reached her deterrence evaluation.
  • Dauber concluded by claiming that “Turner will have plenty of opportunity to finish his education.” It’s not clear what academic universe she lives in, but it’s hard to believe (and for very good reason) that many universities will accept a convicted sex criminal who has a lifetime obligation to register as a sex offender. But—much like Jared Polis in his infamous 2015 remarks—it’s critical for figures like Dauber to keep alive the myth that colleges routinely admit students found guilty of sexual assault.

How the Feds Use Orwell to Apply Title IX

Among the many anti-campus due process groups that have appeared in the past five years, the most prominent is Know Your IX, co-founded by two self-described sexual assault victims, Dana Bolger and Alexandra Brodsky. The group has an active presence on social media; trains activists to crusade against due process at their home campuses; and has sought to influence Congress. Know Your IX members appear to have been among the group applauding Congressman Jared Polis’ call for the expulsion of innocent accused students at a 2015 congressional hearing.

Perhaps understanding that outright opposing due process makes for bad P.R., Know Your IX representatives occasionally have made vague references to fairness in the campus adjudication process. They’ve never quite spelled out what they mean by “fair,” however, other than to say that an accused student shouldn’t enjoy all of the due process rights a criminal defendant possesses.

A recent letter from Know Your IX co-director Dana Bolger to the House Judiciary Committee makes clear that by a “fair” process, the organization actually means “unfair.” The letter contained two remarkable provisions. The first attempted to justify the Obama administration’s decision to ignore the requirements of the Administrative Procedure Act and issue the 2011 Dear Colleague letter—which eviscerated due process rights for accused students.

In her letter, Bolger acknowledged that in the 1997 and 2001 “Dear Colleague” letters dealing with sexual harassment on campus, OCR proceeded with a notice-and-comment period. Know Your IX then cited the two letters as justification for the Obama administration not seeking comment. She provided no explanation for her illogical argument—that is, notice and comment was good enough for the Clinton and Bush OCR, but the Obama OCR doesn’t have to utilize the procedure. Instead, without explanation, she suggested that the terms of the 2011 letter (preponderance of evidence, right of appeal to accusers, discouragement of cross-examination) were merely a “clarification” of the 1997 and 2001 documents.

This Orwellian argument is a mere setup for the letter’s second major claim—that students accused of sexual assault are treated more fairly than students accused of all other offenses on campus. Here’s Bolger: “By mandating fairness and equity in campus sexual misconduct proceedings, Title IX affords accused students the right to prompt investigations, regular updates, notice of rights, and trained adjudicators. In so doing, Title IX provides students accused of sexual assault far more procedural protections than are enjoyed by students accused of other disciplinary infractions, like perpetrating simple assault or selling drugs out of a dorm room.”

In these remarks, Bolger seems to have dropped her earlier comparison of sexual assault to plagiarism. Instead, she’s embraced an insinuation by OCR head Catherine Lhamon that colleges are hotbeds of drug-dealing activities, which the schools resolve not by going to police but instead by handling the matter internally.

Below are some comparisons of the fairness accorded to a student accused of drug-dealing, and one accused of sexual assault.

Title IX chart

Legal requirement to investigate:

And yet according to Know Your IX, the student in Column 2 receives fairer treatment than the student in Column 1. Orwellian.

4 Well-Known Universities With No Integrity

In a Commentary essay earlier this spring, I argued that universities’ response to the 2015-2016 campus protests can be seen, in part, through the lens of faculty and administrators sharing the protesters’ diversity-obsessed goals, if not agreeing with them on tactics. A recent protest from Dartmouth confirmed the point.

Sometimes, campus speech issues are complicated. This one wasn’t. The Dartmouth College Republicans, following college rules, requested access to a bulletin board, where they posted items with the theme of “Blue Lives Matter.” The move coincided with National Police Week.


In response, “Black Lives Matter” protesters tore down the Republicans’ posters, put up posters that reflected their political viewpoints, and “occupied” the area around the bulletin board to prevent the College Republicans from re-posting their original material. The College Republicans went to the administration throughout the day to ask for assistance in replacing their posters, but were rebuffed. The administration, apparently fearful of confronting the students engaged in a heckler’s veto, informed the Republicans they’d have to wait a day; when the building was shut down in the overnight hours, the hecklers’ posters would be removed. Dartmouth administrators followed up with a statement forcefully condemning the removal of the posters—but without any indication of punishment. Nor was there any indication of Dartmouth devoting additional resources to free speech. This type of non-effect would have been inconceivable if the “Blue Lives Matter” students had torn down the “Black Lives Matter” students’ poster.

The student activists remained defiant. In an open letter, they remarked, “We acknowledge that many of you are concerned about the question of free speech. However, one hundred students’ disapproval for ‘Blue Lives Matter’ does not constitute a disregard for free speech, nor does it condemn policemen who have died in the line of duty. What it does constitute is a concern for anti-blackness on this campus and nationwide.”


Again: the student protesters took down posters with which they disagreed, and, on a bulletin board temporarily designated to the College Republicans, put up posters that reflected the protesters’ point of view. If that doesn’t “constitute a disregard for free speech,” it’s hard to imagine what could.


The campus that triggered the fall protests was the University of Missouri, where the highest-profile defender of the protests, ex-Professor Melissa (“muscle”) Click was back in the news last week. The AAUP produced a report faulting the University of Missouri for its slipshod procedure in firing Click. I agree.

But then the AAUP offered the following conclusion: “[W]e doubt whether Professor Click’s actions, even when viewed in the most unfavorable light, were directly and substantially related to her professional fitness as a teacher or researcher.” This statement is astonishing. Recall, again, the context: on the campus quad—a public area of the university—Click called for “muscle” against a University of Missouri student. How could such conduct possibly not be directly related to her position as a teacher? And, again, imagine the unlikelihood of the AAUP in reaching this conclusion if the facts had been reversed—if, say, a white male professor, an advisor of the Mizzou Republicans, had called for “muscle” against a black student journalist.


One of the most perceptive analyses of the fall 2015 protests came from Robert Tracinski. Writing in The Federalist, Tracinski observed, “The more you read through the students’ demands, the more they look curiously like a full-employment program for the faculty who just happen to be egging on these naive youngsters.” The demands, he noted, read “less like a manifesto of student revolutionaries, and more like a particularly aggressive salary negotiation. But this is not about higher pay for all faculty members. Notice in the middle the emphasis on “specialty positions,” we are defined as “faculty who work on critical issues related to social justice.” So it’s a special sinecure for those with the correct political agenda.”

Tracinski’s observations came to mind when reading a Chronicle piece earlier this month involving a tenure case at Rutgers. The basics: Rutgers denied tenure to an African-American professor of communications, Jennifer Warren. Warren came up for tenure without a book. And her teaching evaluations had recently declined. According to the article, Warren seems to have blamed both developments on guidance she received from her department. But on paper, it hardly seems outrageous to see a quality research institution like Rutgers deny tenure to a professor without a book, and with falling evaluations in the classroom.


Nonetheless, the tenure denial triggered protests, holding signs with such sayings as “RU for Black Tenure.” (Imagine the outrage if students carried signs demanding “RU for White Tenure.”) And then, according to the Chronicle, “Several days after the students’ rally, Ms. Warren received good news: She had won her grievance hearing and would have another shot at tenure, in the spring of 2017.”

The article supplies no additional information regarding the contents of Warren’s grievance, or the substance of the appeals decision. This incomplete record leaves two options: (1) Warren’s department committed an unspecified major procedural error, and it fortunately was caught in a university appellate process. (2) After denying tenure to someone whose scholarly and teaching credentials the university had deemed insufficient, Rutgers reversed itself to appease the protesters. The statement from the head of the Rutgers faculty union didn’t inspire confidence: “Students are driven to involvement,” said he, “in a sense of desperation because they’re seeing that percentage go down in a microcosm. What they see in Jennifer Warren’s case is the black-faculty percentage falling instead of rising.”

That might well be true. But a decline in the percentage of black faculty doesn’t constitute a procedural violation.


The New York Times has been all but hermetically sealed, ideologically, in covering campus events in recent years. Its one-sided approach to due process and campus sexual assault has matched its fawning, uncritical coverage of the 2015-2016 campus protests.

But even against that standard, a recent column from Frank Bruni stood out. It offered the administration of Amherst’s Biddy Martin as a model for other schools to follow in the quest for student diversity. That would be the same Biddy Martin whose administration has presided over what is likely the most egregious sexual assault trial since issuance of the Dear Colleague letter, and who proposed a new campus speech code modeled on the anti-due process approach Amherst has used for sexual assault. The idea that Amherst would be the model for anything is absurd.

Yet none of these controversies are mentioned by Bruni. He even gives column space to Martin to allow her to suggest her administration isn’t obsessed with only the usual types of campus diversity: “The college’s president told me that one of her current passions is to admit more military veterans, who bring to the campus abilities, experiences and outlooks that other students don’t possess.”

How many veterans has Amherst admitted in the past three years? Bruni can’t find the space to reveal the total.

Campus Surveys Inflate Rape Statistics

Calls for additional or new “campus climate surveys” have been a regular feature the post-2011 war on campus due process. The White House has produced a template that colleges can copy. The Gillibrand/McCaskill Campus Safety and Accountability Act (co-sponsored by such Republicans as Marco Rubio, Charles Grassley, and Kelly Ayotte) contains a provision seeking to make such surveys mandatory. Given the Obama-Gillibrand-McCaskill-Rubio record on campus due process, it should come as little surprise that something the four of them want is problematic.

Though often billed “campus climate” surveys, these polls do little of the sort. They never ask, for instance, whether students understand the specifics of their campus adjudication system’s procedures (such as the preponderance of evidence or the lack of meaningful legal representation). Nor do they seek to ascertain student attitudes toward due process matters at the school—a topic that should be obvious if the real goal were to get a sense of the “campus climate.” And, of course, their anonymity ensures that climate surveys deal only with allegations of sexual assault, and provide no way of testing their accuracy.

The White House template suggests that universities survey “perceptions” of “attitudes” among students regarding sexual assault. (If perceptions and attitudes are all that’s required, it makes the exclusion of questions about due process all the more puzzling.) White House guidance strongly discourages schools from asking students if they were raped or sexually assaulted, instead asking for behaviors that the school’s researchers can then re-interpret as sexual assault. This list is so broad as to include “sexual contact” while “drunk.”

For students who didn’t report such incidents, the template asks them which of twenty-four possible reasons explains why they didn’t report. The possible answers include such duplicative items as “didn’t have time to deal with it due to academics, work” and “had other things I needed to focus on and was concerned about (classes, work)” or “I thought nothing would be done” and “didn’t think the school would do anything about my report.”

Beyond the limited array of questions, the surveys suffer from another fatal flaw—in the current campus environment, they aren’t really designed to solicit information. Instead, their primary goal appears to be to confirm preexisting beliefs about the existence of a campus sexual assault epidemic.

Consider the reaction to a recent Stanford survey. It revealed that 1.9 percent of Stanford students said they had been sexually Assaulted. This figure (which would translate to around 160 sexual assaults, given the university’s enrollment) would make the Stanford campus the violent crime capital of Palo Alto, which in the last five years has averaged around six rapes or attempted rapes annually. Nonetheless, it generated fury from Stanford campus activists, led by the anti-due process law professor, Michele Dauber—who seemed outraged that it didn’t return the preferred 1-in-5 figure.

In response, students passed a non-binding resolution demanding a new survey, which would presumably return a higher figure of sexually assaulted students. A group of Stanford alumni penned a letter threatening to withhold financial donations to the university unless Stanford conducted an “improved survey” that used the methodology of the AAU. The signatories included Stanford Ph.D. Paul Gowder, whose dismissal of campus due process was previously eviscerated by Scott Greenfield.

The AAU’s 2015 survey, which my colleague Stuart Taylor strongly critiqued, returned a figure suggesting that the campus sexual assault rate was roughly the same as (and perhaps even higher than) the rape rate in war-torn areas of the Congo, where rape is used as a weapon of war.

What’s the purpose of a survey if activists already know the result they desire? It clearly isn’t to discern information. Instead, the goal at Stanford—just as with Gillibrand and McCaskill—is to generate apocalyptic figures, which then can justify the diminution of due process.

Suing the Office for Civil Rights

The prospect of the Office for Civil Rights (OCR) being sued has been much in the news lately. Talk began with an announcement from FIRE—on the fifth anniversary of the issuance of the “Dear Colleague” letter—that it was soliciting an accused student to sue OCR. Attorney Andrew Miltenberg then filed two such suits, on behalf of an accused student from Colorado and a state legislator from Georgia.

In a break from the past, the Dear Colleague letter reinterpreted Title IX to grant the federal government authority to order colleges to enact specific disciplinary procedures for handling sexual assault (and sexual harassment) complaints filed by one student against another. Each of the changes ordered or strongly urged by the administration increased the likelihood of a guilty finding; the best-known change required colleges to use the lowest burden of proof, preponderance of evidence (50.01 percent), to determine guilt.

Related: An Illegal Program OCR Won’t Strike Down

OCR issued the Dear Colleague letter without going through a notice-and-comment period, which the Administrative Procedures Act requires for new government regulations. Subsequent claims by OCR head Catherine Lhamon as to why the office pursued this unusual course—that it didn’t need to do so, because the preponderance standard previously had been offered in resolution agreements with two of the nation’s thousands of colleges; or that the Dear Colleague letter merely provided guidance—don’t pass the laugh test. The most likely explanation: the delay caused by notice-and-comment would have ensured that the Dear Colleague letter wouldn’t have appeared until after the 2012 elections, robbing the letter of its value confirming the administration’s identity politics bonafides.

Republicans control 34 of the nation’s 50 governorships; many of these states have been under GOP control for more than a decade. Every state’s higher-ed law is different, but all give at least some control (usually through appointment of trustees) to a governor. Any of these 34 state education boards would have had standing to challenge OCR’s new mandate. Yet none have—a reminder that campus due process has no constituency, and with the exception of Lamar Alexander and James Lankford, the Republican record on this issue is very poor.

Any lawsuit coordinated by FIRE—or the two Miltenberg lawsuits already filed—first will need to survive a challenge on standing that a university threatened by OCR would not face. But the “Dear Colleague” letter not only lowered the evidentiary standard, but also mandated the right of accuser to appeal, pressured colleges to accelerate their adjudication processes, and discouraged cross-examination. So for standing purposes, the likeliest case would involve a student—as in the recent cases at James Madison and George Mason—whose not-guilty finding got overturned on appeal.

More often than not, when universities have lost motions to dismiss in due process lawsuits, they’ve quickly moved to settle the case. The federal government has no incentive to settle, so this litigation likely will be protracted. What would the effects be if any of these lawsuits succeed?

In theory, colleges could return to fairer adjudication systems—they could increase the burden of proof, end the double-jeopardy scenario where not-guilty findings can be appealed, and create more robust investigations. It seems unlikely that many colleges would actually pursue such a course. But the termination of the “Dear Colleague” letter would, at the very least, remove any chance that judges could rely on it—as occurred in the recent Cincinnati decision—to side with universities in due process lawsuits.

Returning to the pre-“Dear Colleague” letter status quo also would allow for a more even-handed discussion of why colleges are legally compelled to adjudicate felony allegations by students in the first place. The recent article by Jacob Gersen and Jeannie Suk uncovered at least one resolution letter, from 2005, in which an OCR regional office made clear that colleges had no obligation to investigate criminal offenses.

Bush-era court decisions to the contrary seemed far more limited than anything the Obama administration has proposed. A decision from the 11th circuit, for instance, made clear that its findings were dictated by the unusual facts of the case—that the University of Georgia recruited a basketball player who had committed sexual misconduct at his previous school. And the only non-athlete case from the Bush years that foreshadowed the Obama policies—the Kelly case at Yale—featured a judge who seemed to ignore the provisions of the Supreme Court’s 1999 Davis ruling. (You can read materials from the Kelly case file here.)

Progress toward a fairer campus adjudication system—much less a structure where colleges no longer investigate felonies at all—can only occur once the “Dear Colleague” letter ceases to exist. Hopefully the courts will be up to the task.

Yale’s Case against Montague Looks Shaky

Max Stern, the lawyer for the expelled Yale basketball captain Jack Montague, has spoken out, announcing that he will sue Yale on behalf of Montague in April, and clarifying some details in the case, including a very surprising one: that the aggrieved female did not file the sexual misconduct complaint. In his telling, Montague had sex with the woman four times and the woman says only the fourth time was non-consensual.

The Stern statement said, “On the fourth occasion, she joined him in bed, voluntarily removed all of her clothes, and they had sexual intercourse. Then they got up, left the room and went separate ways. Later that same night, she reached out to him to meet up, then returned to his room voluntarily, and spent the rest of the night in his bed with him”

The accuser waited around a year to speak to someone from Yale’s Title IX office, but decided not to file a complaint with Yale. But the Title IX officer filed a complaint. A disciplinary hearing occurred, amidst a campus frenzy following a survey suggesting that the New Haven campus was a hotbed of violent crime.

Related: Montague and Yale’s Poisoned Campus Culture

The indication that the Title IX officer—not the accuser—filed the charges should have triggered outrage on the Yale campus. The Title IX coordinator has authority under Yale’s procedures to file a complaint independently. But according to the regular Spangler Reports on campus sexual misconduct (my review of the most recent report is here), such a move is supposed to occur only in “extremely rare cases,” and only when “there is serious risk to the safety of individuals or the community.” Stephanie Spangler herself reaffirmed this point in February, telling the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

There is nothing in the facts as described by Stern that remotely fits these criteria. So why did the Title IX coordinator act? Did Montague’s status as a high-profile basketball player account for the decision? Was she, for instance, fearful of negative publicity from following Yale’s own guidelines? Or was she worried about the fallout from a recent AAU survey, which had generated negative publicity for the school?

Related: Yale’s Imaginary Crime Wave

Or perhaps it’s simpler than that: The Title IX office seems to have a custom of not following the restrictions laid out in the Spangler Report. Here’s a chart using data in the Spangler Reports, involving allegations of sexual assault of Yale undergraduates. (I have updated cases originally listed as “pending” when follow-up information was provided in a subsequent report.

Yale-Title IX




In the two starred 2014 cases, the accused student was found not guilty. Given Yale’s stated criteria—“extremely rare cases” involving “acute threat to community safety”—it should be all but inconceivable that any case filed by the Title IX officer ended with a not-guilty finding. That two did suggests that she had ceased following Yale’s own standards even before the Montague case.

(Despite these not-guilty findings, the accused student in both of those cases received what amounted to minor punishment—a no-contact order, which could have academic consequences by limiting course offerings. In two Title IX officer-filed cases, in fall 2011 and spring 2012, there were allegations of physical, but not sexual, violence involving couples that previously had a sexual relationship.)

The pattern here is obvious: the Title IX office has gradually become more and more aggressive in filing charges, culminating in the three cases in which charges were filed in the 2015 academic year, despite the supposed restrictions on the types of cases the office can file. So: has the Title IX coordinator decided that Yale’s own regulations don’t apply to her?

Media Reaction

Richard Bradley, probably too hopefully, suggested that this might be the case that prompts the fair-minded to recognize that cases such as this should be handled by the police. But for now, they’re still handled by secret university tribunals that deny due process to the accused.

Some in the media, however, appear to be hearing the message. Both the Daily News and the New York Post had powerful editorials condemning Yale’s handling of the case. Montague’s high school coach, Dennis King, invoked the witch-hunt metaphor, and added that he knew of no player “more dedicated to self-improvement, more single-minded in his love of the game, or more committed to his teammates.” And Montague himself attended the Yale NCAA games in which, but for Yale’s procedures, he would have played.

Related: Worst College President of 2015, Who Wins the Sheldon?

Perhaps because of this public pressure, Yale issued a statement defending its approach to campus sexual assault. Most of the press release was boilerplate, but one section was interesting—stressing that most students accused through Yale’s procedures don’t wind up being expelled. This passage telegraphs the university’s likely defense, borrowing from the standard pioneered by Judge Furman in the Columbia case—since the university doesn’t find all accused students guilty, it shouldn’t be vulnerable to any Title IX challenge, and the courts should wholly defer to its unfair procedures.

Writing in the Washington Post, Shanlon Wu, a former federal sex crimes prosecutor, placed these stats in context: “What would be far more telling would be the percentage of Yale’s campus sexual assault allegations that go forward to hearings. Sending nearly every college student accused of campus sexual assault to a hearing is an abdication of responsibility. Colleges and universities owe it to their students to review and investigate each allegation of sexual assault professionally and thoroughly — prior to sending it forward to a panel hearing. While every case deserves investigation, not every case deserves a hearing.” He also took note of the fact that the “training” Yale provides its disciplinary panelists remains secret.

The Hostage-Video Statement

In the aftermath of 30 for 30’s “Fantastic Lies” documentary profiling the Duke Lacrosse case, it’s hard not to focus on the differences in the campus atmosphere between then and now. During the lacrosse case, the students were the voices of reason—from the student government, to the student newspaper, to students who registered to vote against Mike Nifong. And perhaps the highest-profile student action came from the Duke women’s lacrosse team, in the 2006 national semifinals, who said nothing but wore armbands with the number 6, 13, and 45—the numbers of the three falsely accused men’s players.

Doubtless the Brodhead administration did not welcome this move—the Duke president, after all, had a month before suggested privately that a movie in which an accused murderer fooled his lawyer into believing his innocence was a good frame for the case. But Duke allowed the silent statement to proceed. And students in general were either supportive of or neutral toward the women’s lacrosse team members.

In 2016, the Yale men’s basketball team made a nearly identical, silent statement. They said nothing, but wore warm-up shirts with Montague’s number and nickname. Here, however, the campus backlash was furious. Unidentified students posted flyers accusing the team of defending “rapists.” Yale’s dean issued a statement that seemed to condemn the basketball team. Student reaction toward the team seemed overwhelmingly negative. And the team then issued a statement that came across as a written version of a hostage video, filled with buzzwords more common from Title IX officials than a typical college student, apologizing to the campus community.

There’s scant reason to believe that the Yale Daily News is up to the task that the Duke Chronicle performed so ably in the lacrosse case. Rather than examine whether the basketball players were inappropriately pressured to issue the hostage-video statement—and, if so, what such pressure would say about the intellectual environment at Yale—a long article in Monday’s Daily News broke the news that members of the team still spoke with Montague.

The piece also contained lengthy quotes from campus rape groups criticizing Stern. In their own words, reporters Daniela Brighenti and Maya Sweedler wrote, “Stern’s reasoning drew criticism from experts, victims’ advocates and sexual assault survivors, who argued that the language Stern used in the statement blames victims.”

But such standards—which essentially conflate the experiences of battered women in long-term relationships, who are often emotionally and financially dependent on the men who abuse them, with college students who engage in brief sexual relationships—render it impossible for any accused student to defend himself. If any behavior or evidence undermining the credibility of the accuser (who often, as appears to be the case here, is the only witness suggesting the accused student did anything wrong) can be dismissed as typical conduct of a “victim,” then all behavior confirms the accusation, and the accused must be found guilty.

Montague and Yale’s Poisoned Campus Culture

Jack Montague, captain of Yale’s basketball team, has been expelled from the university on some sort of sex charge and the story continues to get uglier. Since his family has basically declined to comment (for understandable reasons) and because Yale chooses (for incomprehensible reasons) to employ “a more expansive definition of sexual assault” than state or local authorities, there’s no way to know even what he allegedly did wrong.

That said: there’s no reason to trust that Yale’s deeply unfair process got the decision right.

Since 2011, I’ve often written about sexual assault cases at Yale—which, thanks (ironically) to an agreement with the U.S. Education Department’s Office for Civil Rights (OCR), has been required to release biannual reports about its cases. Though opaque, these reports give a sense of the current witch-hunt atmosphere on campus. The most recent report, for instance, brings news of an investigation into a report of sexual assault from a third party—who claimed that an unidentified person had sexually assaulted another unidentified person.

Yale’s Imaginary Crime Wave

Beyond the question of campus culture, Yale’s procedures deny an accused student a meaningful attempt to prove his innocence. Given the combination of the preponderance-of-evidence threshold (those judging guilt need only be 50.01 percent sure they are right) and the guilt-presuming “training” that most panels receive—which, to date, Yale has not made public— students accused of sexual assault effectively have to prove their innocence.

At Yale, the critical procedural obstacles for an accused student include a denial of direct cross-examination of the accuser; the lack of any meaningful right to legal representation in the disciplinary process; and severe restrictions on the amount of evidence he can possess, due both to the OCR-mandated haste with which sexual assault campus cases must proceed and to Yale’s inability (like all schools) to subpoena evidence. Even with these restrictions, Yale doesn’t promise to share all the evidence from its “investigation”—even all the exculpatory evidence—with the accused student or his lawyer.

Montague, a two-year captain of the team, vanished from the squad, without explanation, in early February. In an interview at the time, he cited personal reasons; then, as we now know, Yale expelled him.

His accuser never went to the police—a critical decision in interpreting the subsequent campus and media reaction.

In a campus environment in which enormous social, media, and (at least indirectly) administration pressure exists to oppose fair treatment of accused students, Montague’s teammates then did an extraordinary thing. In the first game after Yale reached its decision (again: at this stage, there’s no way of knowing whether the decision was factually correct, but it’s clear it was procedurally unfair), the teammates all wore cover shirts with Montague’s number and nickname on the back, and “Yale” spelled backward on the front..

In the midst of the lacrosse case, the members of the Duke women’s team took the field with wristbands containing the numbers of the three falsely accused men’s lacrosse players. They attracted some angry comments from the usual suspects (New York Times sports columnists) but in general enjoyed strong support from the student body.

Fast forward ten years. The basketball team’s comparable action triggered blind rage on campus. Unknown parties—presumably Yale students who were briefed on the allegations against Montague, which at this point were not public—blanketed the campus with posters demanding that the team “stop supporting a rapist.”

Yet the fiction of the college disciplinary process is that it doesn’t make determinations of criminal offenses. A judgment by Yale can’t deem anyone a “rapist” any more than it can deem someone an “armed robber” or a “drug dealer”—two other crimes that powerful advocates of the campus status quo, Sen. Claire McCaskill and Catherine Lhamon of OCR, have bizarrely claimed that colleges currently investigate.

But, as the Montague case reveals, that fiction is just that—a fiction—with both students and the public at large interpreting any university action as a determination that the accused party has committed a serious felony. This reality makes it all the more important that Yale have a fair process.

Reflections on the Duke Lacrosse Case

The posters triggered a frenzied reaction on campus. The Yale Women’s Center—an entity with an official Yale website and a Yale faculty advisor—issued a statement that all but identified Montague as expelled for sexual assault. After the New Haven Register reported on the statement, the item disappeared from the Women’s Center website, replaced by a new statement that acknowledged Montague’s (utterly ignored) protections under FERPA. An article by Sue Svrluga in the Washington Post perceptively captured the witch-hunt atmosphere on campus.

The combination of sensational, now-public, but wholly non-specific allegations and the basketball team’s first trip to the NCAA tournament since 1962 has attracted national media attention. The quality of the coverage, however, has left something to be desired.

Kyle Ringo Yahoo! Sports, for instance, informed readers that “it remains unclear . . . if there are ongoing investigations by the school or law enforcement.” Really? The New Haven Register’s Chip Malafronte wrote: “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

CBS News, meanwhile, featured a nearly two-minute story on its national news broadcast. The piece concluded with a paraphrase of an e-mail to students from Yale Dean Jonathan Holloway, who said he was “committed to providing a safe campus for all of you.” Ending the report in this fashion was a damning frame, leaving the viewer with the impression that Montague was a threat to the safety of campus. Yet, once again, we currently have no idea what Montague even was alleged to have done.

Holloway’s email was notable, and troubling, for another reason. To date, the dean has not seen fit to publicly condemn either the students who distributed the “rapist” posters or the Women’s Center figures who posted the statement ignoring FERPA obligations. But the email did criticize the basketball players, asserting that their wearing Montague’s number in warmups left many “upset and angry.” Holloway’s document offered no explanation of why he chose to criticize only one group of students on the issue.

Holloway, ironically, is also Edmund S. Morgan Professor of African American Studies, History, and American Studies. Here’s a Morgan quote on which both Yale students and administrators could do well to reflect: “When any group of people become sufficiently intent on attacking a particular evil, they are likely to discard as obsolete and ineffective any ground rules that society has developed for the peaceful or fair achievement of social objectives.”

The Team’s “Official” Statement

Anyone who has followed the issue of due process and campus sexual assault knew that the subject would prove too tempting for the New York Times to resist. After badly botching its last foray into events at Yale (the Patrick Witt case), The Times avoided sending error-prone Richard PérezPeña back to New Haven; the lead byline on its coverage of Montague was Joe Drape, the only Times beat reporter who covered the lacrosse case fairly.

Drape’s piece was the best the Times has produced on any sexual assault case since 2011. But, critically, it offered a bland description of Yale’s disciplinary process that didn’t mention any of its due process-unfriendly components.

Drape’s article broke news, by including a statement from the team. It read, as presented by the Times, that the team “supports a healthy, safe and respectful campus climate where all students can flourish.”

“Our recent actions to show our support for one of our former teammates were not intended to suggest otherwise, but we understand that to many students they did. We apologize for the hurt we have caused, and we look forward to learning and growing from these recent incidents. As student representatives of Yale, we hope to use our positions on and off the court in a way that can make everyone proud.”

While I’ve taught at Harvard and Williams, I never taught at Yale. So maybe Yale students actually write in the exact same tone and style as student life and Title IX bureaucrats. But, somehow, I doubt it. Obtaining the background of this strange, almost hostage-like, statement would seem like the kind of news a good campus newspaper could break. In 2012, the Yale Daily News was up to the task, and played a key role in exposing the Times’ errors in the Patrick Witt case. But the paper’s current group of editors and reporters has shown little inclination to speak truth to power on questions of campus due process, and I don’t anticipate any exploration of whether there was inappropriate pressure on these Yale students to issue this statement.

Looking Ahead

At this stage, Montague’s reputation has been ruined. (Take a look at his twitter mentions for a clue of the effects.) Even if he sues Yale, a possibility that his father raised in a statement, his good name has been severely damaged.

Although important, protecting the rights of the accused is not the primary reason for due process in campus sexual assault allegations. Rather, due process provides the best guarantee that the university reaches the correct results—since the decision, as we have seen in the Montague case, is a life-altering one.

Based on Yale’s unfair procedures, the university’s one-sided response, and what seems like a deeply poisoned campus culture, no one should have any confidence that the university got this decision right.

Accused, Expelled, and Smeared as a Rapist—at Yale

The case of Yale basketball player Jack Montague, who was expelled from Yale, allegedly because of a rape charge, has gotten a lot of press in the last few days. At this stage, I know nothing of the facts of the case, but I do know that Montague has lawyered up and his father told the Daily Mail that he can’t wait to tell the other side of the story. There are several concerns that deserve mentioning:

(1) The fiction of the college disciplinary process is that it addresses violations of the campus code, not felony offenses. Therefore, it’s acceptable for colleges and universities to deny basic due process to accused students. At Yale, that means a student accused of sexual assault has:

  • No right to the discovery of exculpatory evidence (even if the university, lacking subpoena power, stumbles upon it);
  • No right to see the full evidence upon which the university relied to make its determination
  • No right to an impartial panel (panelists receive secret “training,” which at the few universities where it has been revealed—StanfordOhio StateMiddlebury—has been guilt-presuming);
  • No right to meaningful representation by a lawyer in the disciplinary process (he can have a lawyer, but the lawyer can’t ask questions or address the panel);
  • No right to meaningfully cross-examine the accuser (questions must be submitted in writing to the panel, which can ask them or not, at its discretion);
  • No plausible right to follow-up cross-examination questions (see this Scott Greenfield post for the significance of this denial).

Again, the justification for these denials of basic due process is that no one is accusing the student of rape. How, then, to reconcile this fiction with posters that blanketed the Yale campus asking the Yale basketball team to “stop supporting a rapist” [emphasis added]?

When the alleged disciplinary offense is the same as a felony, the idea that deny due process serves the interests of fairness is preposterous.

(2) Of the media coverage of this issue, one article handled the issue responsibly. In the New Haven RegisterChip Malafronte wrote, “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

Every article on this case should contain such a sentence. How can someone be a “rapist” if he hasn’t even been charged with a crime—much less convicted?

Other coverage of the case (Jezebel unsurprisingly stands out here) has been far less responsible. And I very much doubt, based on how this general issue has been covered in the last several years, that many reporters will follow Malafronte’s example.

(3) Moreover, all coverage of this incident should place Yale’s policy in a specific context. First—as I’ve pointed out in many essays at Minding the Campus—this is a university whose handling of sexual assault allegations is fundamentally unfair, and seems based more on a response to moral panic than a pursuit of justice.

Second, and of particular importance for this case given the posters blanketing the campus, Yale itself has admitted (in the words of Deputy Provost Stephanie Spangler) that the university “uses a more expansive definition of sexual assault” than required either under federal law or by the Connecticut criminal code.

Yale has never explained why it chose to redefine a term commonly understood in both culture and the law. And at this stage, it’s not public what specific allegations Montague even faced. But to the extent he faced allegations that don’t fit the definition of sexual assault, and as a result of Yale’s actions he has now publicly been branded a “rapist” in campus posters, it would seem that he has suffered real harm from Yale’s peculiar use of the dictionary.

(4) In the past few weeks, a lawsuit against the University of Tennessee and continuing controversy at Baylor have both shown that, in specific contexts, star athletes appear to get special treatment in sexual assault allegations.

But most accused student-athletes aren’t football or basketball players at Power Five conferences, and I know of no evidence that accused student-athletes in any other context get treated any better than the typical accused student. That is: they, too, are subjected to the kind of due process-unfriendly procedures that Montague apparently experienced.

Montague’s case is a reminder that in one important respect, accused student-athletes get worse treatment than the typical student. Perhaps the only meaningful protection for an accused student in the college disciplinary process is its secrecy—their chances of a not-guilty finding aren’t good, but at least the finding won’t become public.

But for athletes, as former Yale quarterback Patrick Witt and now Montague have discovered, maintaining that secrecy is much harder than for a non-student-athlete. In Montague’s case, because he was in the public eye, his departure from the team unsurprisingly raised questions that would not have been asked in the case of another student.

(5) In an official statement, Yale unsurprisingly (and appropriately in this instance) shielded itself behind FERPA and declined comment.

But, incredibly, an agent of the Yale administration took a different course. As quoted by Malafronte, the Yale Women’s Center released a public statement purporting to “speculate” and then adding: “[W]e can comfortably say that, should all of this be true, this is progress. It seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for . . . Though we can only speculate as to the intent behind the basketball team’s shirt protest, the team’s actions appeared to be a dismissal of the very real threat of sexual violence.”

In other words: an official Yale agency all but confirmed that Montague was expelled for “sexual violence.”

Between the publication of the Register article and this morning, someone (Yale’s general counsel, perhaps?) appears to have spoken to the Women’s Center, which released a modified statement “recogniz[ing] that FERPA and Yale policy prohibit Yale from commenting on the exact nature of any specific incident.”

But the Women’s Center has already commented. Its comment all but confirmed the rumors. And that comment, along with the harm it caused, can’t be undone.

The revised statement contains no apology to Montague.

Yale’s Imaginary Crime Wave

Yale is the only university that regularly issues reports on its handling of sexual assault complaints, the result of a 2012 resolution agreement with the Office for Civil Rights (OCR). The university is also unusual in reporting so many sexual complaints, the result of its peculiar decision to broaden the campus definition of “sexual assault” beyond all recognition.

The newest of these reports, issued as always by Deputy Provost Stephanie Spangler, has now appeared. And, as always, Spangler notes that Yale has chosen to redefine “sexual assault,” attributing to the term “broad ranges of behavior” that neither the criminal law nor common cultural understanding would define as sexual assault. Yale has never offered a convincing explanation for why it pursued this course, but the strategy does inflate the numbers, thereby helping to feed the current moral panic on campus.

The Odd Sexual Accounting at Yale

Previous reports have revealed such items as:

The number of sexual assault allegations for the second half of 2015 was considerably higher than for the first half, but Spangler says this development should have come as no surprise, given the results from a 2015 survey of the Association of American Universities. (Both Stuart Taylor and I picked apart the dubious methodology of the AAU survey. For a shorthand version: the survey wildly oversampled female students who said they reported a sexual assault allegation to their college, thereby creating an unrepresentative sample of the overall student body.) But to Spangler, AAU is gospel. “We know,” she writes, “from the AAU Survey results that prevalence rates are high and many experiences go unreported.”

Related: A One-Sided Conference on Sexual Assault

According to the Spangler Report, the Yale campus was a hotbed of violent crime between July and December, with 20 undergraduates and four graduate students reporting that they had been sexually assaulted. For Yale’s female students, these totals alone would suggest an annual violent crime rate (1.4 percent) comparable to that of Oakland, which the FBI listed as the nation’s third most dangerous city in 2014.

Surely, a crime epidemic of these proportions would have triggered Yale President Peter Salovey to coordinate with state and local police to address the issue. Surely, at the very least, police patrols of this very high-crime area should be stepped up. Perhaps a police task force should be created. And Yale could review its admissions procedures to determine why the university is admitting so many violent criminals.

None of those steps has been taken, of course. Nor will they be. The fundamental tension of the campus rape moral panic is that universities simultaneously claim that they are overrun by violent crime and that state and local law enforcement must play no role in addressing the matter—since such an approach might weaken the campus kangaroo courts that activists champion. It’s all but inconceivable to imagine any other scenario in which such a cavalier approach to a purported crime wave would be tolerated.

What Yale and the Times Did to Patrick Witt

The report itself answers the question of why President Salovey does not act. A grand total of one Yale undergraduate actually filed a complaint that went to the University-Wide Committee (UWC), the body that adjudicates campus sexual assault questions. (That case remains pending.) A second case was filed not by the student but by the Title IX coordinator—even though the Spangler Report claims that the Title IX coordinator will take action “only in extremely rare cases.”

The next two cases that went to the UWC? Both resulted in non-guilty findings—despite a procedure that’s heavily tilted toward returning a guilty outcome.

Then there’s the fifth case. Last year featured a deeply troubling scenario in which a non-Middlebury student essentially weaponized Title IX. She alleged that a Middlebury student sexually assaulted her in a study abroad program, and when she didn’t like the outcome from the study abroad program’s disciplinary process, she sent a notice to Middlebury implying she would file a Title IX complaint unless Middlebury brought the student up on sexual assault charges. Middlebury did so, employed a deeply unfair procedure, and found the student guilty. He sued, obtained a preliminary injunction, and eventually settled with the college.

At the time, I noted that perhaps the only good thing that could be said about the Middlebury case was its unusual nature. But it was a troubling precedent, since the only clear way for a college student to avoid a campus tribunal is to avoid any type of sexual contact with a fellow student.

That line seems to be breaking down. The current Spangler Report notes the following: “A Title IX Coordinator brought a formal complaint on behalf of a non-Yale student who alleged that a Yale College  student engaged in sexual penetration without consent and physically assaulted the complainant . . . The case is pending.”

There’s no indication that the non-Yale student went to police. The ostensible rationale for campus tribunals is that they set campus norms. To the extent they become absolute substitutes for the criminal justice system, providing avenues to police off-campus student behavior with non-students, the precedent is a terrifying one.

By the way, this case, too, was filed by the Title IX coordinator. So of the five cases reported to the UWC for formal resolution this past semester, two used a process that the report claims that the university employs “only in extremely rare cases.” Apparently not too rare.

Related: Expel 10 if 1 or 2 Are Guilty of Rape?

The vast majority of cases in the Spangler Report were handled informally (at least at this stage) through the office of the Title IX coordinator. In this process, the accused student effectively has no rights—but also can’t be expelled. Three of the Title IX office cases stand out:

(1) The Title IX office currently is considering a second sexual assault allegation filed by a non-Yale student against a Yale student. It’s very difficult to imagine how such a complaint does not belong before the local police rather than a Yale bureaucrat.

(2) As I’ve noted previously, the silence of the Yale faculty on this issue is especially odd, since the new Title IX regime threatens their rights as well. From the latest report comes news that a student informed a Title IX Coordinator that another Yale student reported that a faculty member made inappropriate comments in a classroom. This second-hand complaint about classroom discussion is now “pending,” under investigation.

(3) Clever students can find way to game the system. Have a tough exam coming up? Go see the Title IX office, like a Yale student who “reported that an unidentified visitor on campus made unwanted advances. The Title IX Coordinator implemented academic accommodations for the complainant.” Perhaps such advances from the unknown visitor occurred. (If the party was unknown, how did the student know it was a visitor?) But how can the Title IX investigate such a complaint to determine if “academic accommodations” are actually warranted?

Related: Let’s  Challenge the ‘Rape Culture’ Warriors

A good example of the witch-hunt atmosphere on today’s campuses is the increasing willingness of Yale students and employees to file second-hand, unsubstantiated allegations.

For instance, “an administrator informed a Title IX Coordinator that a [Yale undergraduate] student reported that an individual whom the complainant could not identify engaged in sexual touching without consent at an off-campus location.” A student informed a Title IX Coordinator that one Yale undergraduate “reported that another [Yale undergraduate] student engaged in sexual penetration without consent.” Rumor-mongering is now acceptable at Yale, as an unidentified administrator informed a Title IX Coordinator “of reports from multiple [Yale undergraduate] students that another [Yale undergraduate] student had engaged in sexual penetration without consent.”

And consider this allegation, with emphases added: “A student informed a Title IX Coordinator that an unidentified [Yale undergraduate] student reported that an unidentified [Yale undergraduate] student had engaged in sexual penetration without consent.” On what possible basis could Yale investigate this claim? And how did the reporting student possibly reach this determination?

The Spangler report lists each of the above episodes as a sexual assault. Keep that in mind when evaluating the report’s breathless statistics.

Railroading the Innocent in Cincinnati

By KC Johnson

The University of Cincinnati has a fascinating response to a recent lawsuit filed by two students alleging serious misconduct by UC and several of its administrators in sexual assault proceedings: “Even accepting Plaintiffs’ allegations as true, they received constitutional due process protections.”

Since UC informed them of the charges, and gave them a hearing, courts can do nothing—no matter the extent of the hearings’ biases, and no matter how indifferent to the truth the university was. That such an argument could come from an institution of higher learning is appalling—but, by this point, not surprising.

The lawsuit, which you can read here, involves two separate cases—one filed by a former UC undergrad (who then transferred) and the second by a former UC law student (who has since graduated). The first case involved a claim that the male student sexually assaulted two female students (in the same room). In a relative rarity in campus proceedings, the accusers also filed a complaint with police—who promptly uncovered significant evidence that undercut their stories.

No Due Process, Thanks

One claimed, for example, that she didn’t know how the male student got into her dorm, but videotape showed her standing by as the second female student signed in the male student to the dorm. She claimed not to have used marijuana, only to later admit that she had. She claimed that the male student got into her bed without her knowledge even though she had previously told police that she had undressed in front of the male student, gotten into her bed, and then he quickly joined her in bed.

The other student alternatively claimed to have been passed out and not passed out during the alleged assault, and claimed to have been passed out at a time that the police uncovered her sending text messages. Explosively, one of the detectives investigating the case testified that his colleague believed that UC had “obstructed” the flow of the investigation, seemingly to minimize the accusers’ credibility problems, and that UC’s general counsel “was trying to impede our train of thought and our investigation.”

UC nonetheless found the accused student guilty of sexual assault. It did so after an almost comically biased procedure. A UC administrator informed the accused student, “Neither party has any burden of proof.” (This assertion misstated UC regulations; even the preponderance of evidence threshold, which UC uses, imposes a nominal burden of proof on the school.) The accused student went before a disciplinary panel trained with inflammatory, unsubstantiated allegations such as, “The average rapist rapes 14 people before he ever spends a night in jail,” or “1 in 4 women will survive rape and/or sexual assault during her time in college.” See citations to the discredited David Lisak’s work on undetected rapists and misstatements of UC policy (the training asserts that consent needs to be “verbal and “ongoing,” and that the female student must be “sober,” even though UC’s actual policy contains no such requirement).

Male in Mattress Case Sues Columbia

An accompanying guide from the UC judicial office repeatedly labels accusers as “survivors” (“All reported sexual assaults will be taken seriously and every effort undertaken to assist survivors”)—even though, of course, at the time of the report, there’s an accuser and an accused, not a “survivor” and a perpetrator. Such sloppy use of language presumes a crime before any investigation occurs. It’s no wonder that since 2010, in every case for which a resolution is available, UC has found students accused of sexual misconduct guilty.

The accused student asked to record his disciplinary hearing; UC refused permission. UC policy prohibited him from directly cross-examining his accuser; questions that he submitted for asking went unexplored by the panel. The hearing panel refused to examine either the surveillance video of the students walking into the dorm or text messages from the accusers’ phones. The guilty finding seemed predetermined. He successfully appealed within the university, only to see the cases return to the same panel, which reaffirmed a guilty finding regarding one (but not, oddly, both) of the accusers.

Daniel Cummins, director of UC’s office of judicial affairs, informed the second student who was enrolled at UC’s law school that “a preponderance of the evidence burden of proof applies. Neither the complainant nor the respondent bears this burden of proof in an ARC hearing.” That UC’s chief disciplinary officer doesn’t understand what the preponderance of evidence requires speaks volumes as to the university’s unfairness.

Cummins handled the second case in other odd ways. Even though the alleged sexual assault occurred off campus, he insisted on having the UC disciplinary process hear it. Based solely on the filing of allegations, he informed the accuser’s thesis advisor that the student “has recently been the victim of behavior that violates our sexual harassment policy.” (This revelation suggested he had made up his mind before even speaking to the accused student.) The accused student also faced an interim punishment—including a prohibition on entering the library—based solely on these uninvestigated allegations.

More Extreme Procedures Coming?

During the hearing, one of the panelists scribbled a note that reflected the contemptuous approach often seen toward due process at the campus level: “Also ->this is NOT a court. We don’t have to do things like in law school.” The accused student was found guilty, and appealed. This appeal, too, was granted—and the case then remanded back to the same panel that had found him guilty in the first place. The second hearing featured the accuser attacking the accused student as a rapist and then storming out of the room before even UC’s permitted cross-examination could occur. The panel again returned a guilty finding.

UC retorted that none of this really matters—that the university only was obligated to hold a hearing and to inform both students of the charges against them, obligations that UC fulfilled. A fair process that might determine the truth, UC filings suggested, is beyond the legal obligations for any university. (Left unsaid was why a university wouldn’t want such a process.) UC purports to concede, citing relevant 6th Circuit precedent, that “a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing.”

But to justify its denial of basic fairness to the two students in these cases, the university relied on Jackson v. Dorrier, a 1970 case involving a high school policy prohibiting male students from having long hair. (“To hold that the relationship between parents, pupils and school officials,” the 6th Circuit ruled, “must be conducted in an adversary atmosphere and accordingly the procedural rules to which we are accustomed in a court of law would hardly best serve the interests of any of those involved.”)

It’s remarkable that UC could consider a grooming policy for high school students to be somehow relevant to whether a college student is entitled to fundamental due process when facing a life-altering sexual assault allegation. But perhaps not too surprising: UC also contends that even if its policy placed the burden of proof on the accused (which university briefs somewhat ineffectively denied), doing so “would not compel a finding that due process was violated.” Ponder that again: a public university has publicly affirmed that a policy that presumed students guilty of sexual assault would be constitutionally acceptable.

The university also justified its decision to impose interim punishments on students accused of sexual assault, on grounds that “federal regulations require the University to offer such [interim] accommodations or interim measures to victims of sexual assault” [emphasis added]. At the interim stage, of course, there is no victim—there’s an accuser and an accused. And Cincinnati’s filings also claimed that the Dear Colleague letter “directed” it to follow certain procedures, even though two high-ranking Education Department officials conceded last year that departmental guidance letters were just that—guidance, not obligations on universities.

UC seems to go out of its way to envision its undergraduates and even law students as the equivalent of high school students. For the proposition that it’s OK to deny students accused of sexual assault any right to cross-examine their accuser, the university cited a 2014 6th Circuit case involving a high school freshman. And for the proposition that it’s OK to deny students accused of sexual assault meaningful right to cross-examine their accuser by requiring questions to be funneled through a panel that might modify or simply ignore them, the university cited a Connecticut case involving a high school senior.

Since UC sees its students as glorified high schoolers, perhaps parents would be better off sending their children to another university.

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.

How Title IX Became a Policy Bully

By KC Johnson

The Chronicle of Higher Education has received a good deal of attention for putting together a website cataloguing all the Title IX complaints currently pending with the Obama administration’s Office for Civil Rights (OCR). But the site should mostly be seen as a concrete demonstration of how little we know about these complaints, and how poorly the media as a whole has done in covering this issue.

Even before the issuance of the “Dear Colleague” letter in 2011, a marriage of convenience had developed between OCR and campus activists eager to weaken due process for students accused of sexual assault. In contrast to the Bush administration, OCR made clear by implication if not openly, it would welcome Title IX complaints, as a bludgeon to pressure universities to change their policies—if only the activists would file such complaints. And so local activists, increasingly organized by groups such as Know Your IX, SurvJustice, and End Rape on Campus, started filing complaints.

Related: The Hunting Ground—An Ethically-Challenged Tainted Documentary

The Title IX complaint against Yale—which produced the grossly unfair procedures that ensnared, among others, Patrick Witt—was the first example of this new process in action.

The only university that appears to have resisted OCR pressure was Tufts, and it did so only briefly, before backing down. The combined threat of bad publicity and a loss of federal funds—coupled with the fact that many on campus agree with the activists’ anti-due process agenda—has explained the remarkable academic passivity to this federal overreach.

OCR has followed the highly unusual strategy of releasing the names of colleges or universities under investigation, but refusing to release any of the details as to what prompted the Title IX complaint. And so, over and over again, the Chronicle website has lines such as these: “Sexual assault gained attention on the campus when the Office for Civil Rights notified leaders [and, of course, the public] in October that it had launched an investigation.”

OCR hasn’t explained why it has pursued this shaming strategy—whose only purpose seems to be to heighten the frenzy about the campus sexual assault issue and invite the media to assume the worst.

Related: Three Men Unfairly Branded as Campus Rapists

It’s not as if the agency doesn’t eventually release most of the details of complaints. Take, for instance, one of the most recent resolution letters, involving Michigan State University. There, once the matter was resolved, OCR published in some detail (without revealing the complainants’ identities) the initial allegations against the school. (In both instances, accusers claimed that the university had waited too long to investigate the charges, one of which was deemed baseless.)

OCR spares no details in these resolution letters: in the Michigan State case, for instance, the resolution letter included such unique details as the following: “In November 2010, during the investigation, Student A encountered the two male students in a University building where all of the students studied. The two male students were sitting in a private tutoring room with their tutor. While the door was closed, Student A could see the male students through a glass panel in the door. Student A remained outside the male students’ tutoring room for approximately 30 minutes.

When the male students were finished with their tutoring session, they left the room and walked past her to exit the building. Student A called the police to report that the male students had violated their PPOs by not leaving the building when she entered it. Student A stated that the male students were supposed to stay 500 feet away from her, but that the police had told her that the 500-foot rule has exceptions. After this encounter, the male students were assigned to a specific study area in the building that was separate from Student A’s study area and required them to use a separate entrance from the general student body.”

Related: The NY Times Reveals the Stupidity of ‘Yes Means Yes’

(This burden was placed on these two students, who also had been reassigned to a remote dorm on campus, even though the allegation was unfounded.)

This level of specificity, of course, ensures that those who knew both the accuser and accusers on campus would likely now learn about the sexual assault allegation. If the agency plans to release such details eventually, why not right off the bat? Perhaps because it sounded much worse to hear “Michigan State Under Title IX Investigation” than to learn that the allegation was that the school took long to conclude that an unfounded sexual assault allegation was, in fact, unfounded—and that the accused students had done nothing wrong.

An administration committed to transparency should release the details of the allegations, so the public could decide for themselves the seriousness of the Title IX complaints. That the Obama administration has chosen not to do so—as the Chronicle website helps to demonstrate—only compounds its bad faith on the issue of campus due process.


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?