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.

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?

Two Lawmakers Vote No to Safe Campus Act

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

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

Related: The Rape Epidemic on Campus Does Not Exis

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

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

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

Related: Suing Over Star Chamber Hearings 

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

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

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

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

A New Politically Tainted Survey on Campus Sexual Assault

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

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

Related: The Odd Sexual Accounting at Yale

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

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

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

Related: UC San Diego Loses in Sex Assault Case

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

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

Top Reads from Minding the Campus

Weaponizing Title IX at Middlebury

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

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

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

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

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

The Incident

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

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

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

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

Middlebury Intervenes

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

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

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

Guilt and Middlebury

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

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

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

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

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

The Court Case

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

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

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

Expel 10 If One or Two Are Guilty of Rape?

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

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

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

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

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

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

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

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

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

U. of Michigan Screws Up in ‘Rape’ Case

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

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

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

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

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

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

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

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

Office For Civil Rights Goes After Michigan State

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

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

Student A

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

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

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

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

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

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

The Campus Climate

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

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

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

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

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

Policy Abandoned

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

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

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

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

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

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

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

DESPITE CRITICISM, APUSH IS BETTER

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

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

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

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

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

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

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

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

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

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

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

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

Judge Ends Mockery at Chattanooga

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

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

You can read the decision here.

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

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

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

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

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

The Odd Sexual Accounting at Yale

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

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

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

The 1-in-5 Claim

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

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

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

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

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

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

The Reports and False Rape Claims

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

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

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

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

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

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

The New History Guidelines Are Better

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amherst: No Pretense of Fairness

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

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

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

Amherst: The Process Worked

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

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

Desperately Defending the Accuser

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

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

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

Amherst’s Fallback Position: Blame Its Students

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

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

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

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

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

Amherst and Its Officials

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

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

UC San Diego Loses in Sex-Assault Case

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

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

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

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

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

The UCSD Trial

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

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

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

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

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

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

The Outcome

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

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

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

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

Two Federal Judges Misrule in Campus Sex Cases

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

Columbia

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

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

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

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

Furman and Title IX

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

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

Miami’s Compromised Investigation

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

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

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

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

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

Indifference to Fairness

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

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

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

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

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

No Due Process, Thanks—This Is a Campus

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

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

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

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

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

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

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

Brandeis Betrays Students’ Rights

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

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

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

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

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

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

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

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

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

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

Will we see a similarly engaged court in Massachusetts?