Tag Archives: campus sexual assault

De Vos to End One-Sided Campus Sex Rulings

In the debate over campus due process, it would be difficult to overstate the significance of Education Secretary Betsy DeVos’ George Mason speech. No comparable address occurred during the Obama years—former Education Secretary Arne Duncan largely deferred on the issue to Russlynn Ali and Catherine Lhamon, who ran the Office for Civil Rights (OCR) during the Obama years. Ali and Lhamon spent years evading the obvious question: why was it necessary, in April 2011, to reinterpret Title IX to allow the federal government to dictate campus sexual assault procedures? When Lhamon finally provided a written response to that question, in 2016, her purpose seemed to be more to mislead than explain. Indeed, the fact that DeVos even met with students who said they had been wrongly accused of sexual assault—something that Ali and Lhamon refused to do—was a path-breaking decision.

In the aftermath of the DeVos speech, four themes are worth considering.

Culture of Due Process

Before the speech, an astute observer of campus sexual assault predicted to me that the DeVos address would function as a Rorschach test, and he proved correct. The Education Secretary repeatedly, and forcefully, denounced sexual assault. She also discussed due process, including in some of these passages:

  • “One person denied due process is one too many.”
  • “Justice demands humility, wisdom, and prudence. It requires a serious pursuit of truth.”
  • “No student should be forced to sue their way to due process.”
  • “Any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.”
  • “Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

In virtually any other context of American life (with, perhaps, the exception of some national security debates), these comments would be seen as embodying fundamental American principles—which, of course, they did. Yet DeVos’ comments generated furious condemnation from Democratic politicians and liberal activists (David French summarizes, and critiques, some of the more strident of these claims.) The left-wing commentator Amy Siskind deemed DeVos’ speech a signal toward authoritarianism, before proclaiming, “STFU with your hackneyed due process talking point.” Stanford Law professor Michele Dauber described the speech as “one long dark dog whistle for men’s rights activists.” Rob Ranco, a Texas civil rights lawyer, said after the speech that he would “be OK if Betsy DeVos was sexually assaulted.”

These statements—again—came in response to a speech in which the Education Secretary repeatedly condemned sexual assault and repeatedly expressed her desire to see colleges handle sexual assault allegations under the banner of Title IX.

Yet, it’s clear, her belief that due process is important in the Title IX context is now seen in many quarters as excusing rape—that a system that allows accused parties basic rights and protections is one that will somehow always yield a not guilty finding. This is an enormous, and deeply troubling, cultural change. But it’s also, unfortunately, the logical outgrowth of the Obama administration’s approach to this issue. Six years of an implicit (and occasionally explicit) message that due process was an obstacle, rather than a necessary prerequisite, to campus justice has brought us to this point.

Democrats and the Accusers’ Rights Movement

Neither of our two major parties has a good record on civil liberties and due process matters, but over the past 50 years, the Democrats traditionally have been the more supportive party on these questions. On campus due process, however, the Democrats have become the accusers’ rights party, with no daylight between key party members and the accusers’ rights movement.

Former Vice President Joe Biden, for instance, spent the day after the DeVos speech appearing at an event hosted by Know Your IX, probably the most extreme of the major accusers’ rights organizations. Bernie Sanders, who in his 2016 presidential bid had (correctly) said law enforcement should handle campus violent crime, realized that he needed to reverse himself in the new party climate, and immediately condemned DeVos’ speech.

California Senator Kamala Harris, another prospective 2020 presidential candidate, came out against a presumption of innocence in campus sexual assault cases. In a tweet responding to a news report indicating DeVos’ skepticism about Obama-era guidelines, Harris thundered, “Survivors of sexual assault deserve to be believed, not blamed.” The statement recalled the notorious remarks of Dartmouth Title IX official Amanda Childress: “Why could we not expel a student based on an allegation?” That a U.S. senator and former state attorney general is now as extreme as an obscure campus administrator gives a sense of how dramatically the accusers’ rights perspective, once a fringe, has consumed the Democratic Party.

The two most significant Democratic statements, however, came from Washington Senator Patty Murray. The first—which deserves far more attention than it has received—came the day before the DeVos speech. In a press release, the Washington senator maintained, “The standard of proof guidance provided in the [Dear Colleague] letter has led to more women and men coming forward about their sexual violence experiences.” This was the clearest statement I’ve seen from a defender of the Obama-era policies that reporting will increase if colleges rig the procedures to increase the chances of a guilty finding. Much like Harris’ statement, this mindset presumes guilt.

The day after DeVos’ speech, Murray wrote the Education Secretary to demand that the Dear Colleague letter should be retained. Absent from her missive: any reference to “due process,” “fairness,” or “presumption of innocence.” In a world where every allegation was clearly true, the perspective of Murray and many of her fellow Democrats—in favor of a campus process designed to vindicate all accusers’ allegation might make sense. In the world in which we live, the party’s abandonment of civil liberties for college students is outrageous.

It’s also worth noting that while Democratic legislators might have abandoned due process, many prominent liberals and feminists have not. Harvard Law professors Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner have been tireless on this issue; Suk Gersen’s co-authored law review article (with Jacob Gersen) and her New Yorker columns on Title IX and due process are must-reads. Laura Kipnis’ book penetrated into the public consciousness in a way that no other work on this topic has done. Lara Bazelon has written several influential commentaries. Emily Yoffe’s research-based journalism at Slate and now the Atlantic provides a reminder that a left-of-center worldview doesn’t require accepting junk science or the infantilization of women. And, as I’ve noted previously, while I’ve been very critical of the Obama-era policies, I was nonetheless an Obama donor and voter in both 2008 and 2012.

The Rationales of Obama Officials

The clearest explanation for Obama’s policies from either of his two OCR heads came in this 2014 exchange between Catherine Lhamon and Tennessee Senator Lamar Alexander. Lhamon preposterously claimed that by confirming her, the Senate gave her the authority to “explain” Title IX—including, it seems, to the Senate itself, and by the threat of losing federal funds to all colleges and universities.

The response of high-level Obama Education Department officials to the DeVos address perhaps explains their previous public reticence. Lhamon seemed to express opposition to any executive branch office or agency using the regulatory process, as opposed to (her preference) issuing unilateral guidance. Ali wildly asserted that DeVos’ address would “take us back to a system that disempowers and silences survivors of sexual violence.” Weakening due process as the 2011 guidance did, Ali continued, amounted to “common sense protections,” and removing these provisions would create “an environment that is hostile to student survivors of sexual violence.”

The former boss of Ali and Lhamon, Education Secretary Arne Duncan, bizarrely suggested that DeVos’ speech meant that she was “choosing politics over students.” As Duncan surely knows, the politics of this issue move in one direction and one direction only—against due process for accused students. There was zero political benefit to DeVos’ remarks—she did the right thing morally and ethically, but took a political risk.

How Campus Tribunals Operate

A final point: I’ve noticed even in some columns supportive of DeVos’ efforts an acceptance of one vital element of the Obama narrative: that some action was necessary in 2011 because colleges were indifferent to the victims in their midst. At one level, this is true—doubtless, colleges were indifferent in the 1970s or 1980s when people challenged whether “date rape” could even occur. And there were some key cases involving athletes in the 2000s where colleges clearly looked to sweep things under the rug.

But, more generally, the claim that the typical college campus in the years immediately before the Obama guidance routinely mistreated sexual assault accusers is a hard argument to credit. We actually have a good case study of this: the Duke lacrosse case. Here was a claim that was as false as a rape claim possibly could be. Yet 88 Duke professors signed a public document affirming that something “happened” to accuser Crystal Mangum, and promising to continue their crusade “regardless of the results of the police investigation.” The Duke administration, behind the scenes, seemed equally willing to presume guilt. Could such a campus leadership—whose basic ideological culture on gender issues was comparable to that of most elite schools in the decade before the 2011 Dear Colleague letter—was celebrating the truth of Crystal Mangum but doubting the veracity of actual student victims?

Nor were pre-Obama Duke procedures somehow unfair to the accuser. Quite the reverse: after the lacrosse case, the university revised its sexual assault procedures to make it far more likely an accused student would be found guilty, while dramatically expanding the definition of what constituted sexual assault on the Duke campus. The new definition stated as a “guiding principle” a reminder that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” That is two years before the Obama administration acted, a Duke student could be found guilty of sexual assault if his accuser “perceived” him as more powerful, thereby creating “unintentional” coercion—even if he did absolutely nothing wrong.

Again, does this sound like an environment that was indifferent to campus victims?

An imperfect Way to Fight Unfair Sexual Accusations

Too often on campus, the best chance for a wrongfully accused student to achieve justice involves a lawsuit after the campus tribunal has done its worst. A system that uses the lowest standard of proof, allows accusers to appeal not-guilty findings, lacks mechanisms for mandatory discovery of exculpatory evidence, denies meaningful (or any) representation by counsel, and prohibits direct cross-examination is almost, by definition, unjust.

As FIRE’s Samantha Harris has long observed, courts are an imperfect vehicle to protect campus due process as a whole; the nature of due process lawsuits makes it difficult for courts to do anything more than address the facts of a single case. (The Brandeis decision comes closest to a judicial declaration that a university’s sexual assault process violated the Constitution.) Moreover, a lawsuit can cost tens or even hundreds of thousands of dollars—well beyond the means of many middle-class or poor families.

It is, therefore, nothing short of preposterous to suggest that the myriad due process lawsuits illustrate the “powerful legal incentives” for colleges to handle sexual assault complaints “fairly.” Yet this was the claim of one prominent defender of the Obama administration’s efforts to weaken campus due process—my own institution’s president, Michelle Anderson. She added that “campuses are responding—as they must—when accused students prevail.” The extensively footnoted article contained no footnote for this assertion.

When Innocence Isn’t Enough

Anderson’s words would be cold comfort to accused students from Miami (Ohio), Case Western, or the University of California-San Diego. In the Miami case, Judge Michael Barrett noted that the accused student had “alleged facts which cast doubt on the accuracy of the outcome.” Indeed, the “discrepancy between [the accuser’s] written statement—‘I never said no’—and the finding that [the accuser] asked [the accused student] to stop casts serious doubt on the accuracy of the outcome of the Administrative Hearing [emphasis added].” Yet Judge Barrett concluded that 6th Circuit precedent prevented him from rectifying the injustice.

In a 2015 case at Case Western, Judge Christopher Boyko concluded that the accused student had made “a plausible claim that [he] was innocent of the charges levied against him and that CWRU wrongly found that [he] committed the offense.” Case Western didn’t give the accused student access to the full case file. The panel refused to ask some of the questions he deemed critical to his defense, and the chairman of the panel treated him with hostility.

The university denied his appeal—after allowing the appeals officer to consider an anonymous letter, to which he was never given access, to be added to his file. Despite noting that this treatment left a “plausible inference that CWRU’s disciplinary hearings were procedurally flawed,” Boyko sided with the university, citing relevant 6th Circuit precedent. The likely innocent student—found guilty after a flawed procedure—was out of luck.

This is, of course, the same circuit at which Judge Martha Daughtrey mused at how students accused of sexual assault are entitled to no more due process than a soldier facing a military board of inquiry. Daughtrey isn’t alone in her judicial indifference of basic fairness. The highest-profile example came in a 2016 appellate decision from California, where a three-judge panel restored the discipline against an accused student at UC-San Diego. The judges reached that conclusion even after one of them publicly compared the UCSD process to a kangaroo court.

Settlements

For those accused students filing outside of the 6th Circuit (or, in the aftermath of the UCSD decision, in California state court), success depends less on the merits of their case than on the judge to whom the case was assigned. For the public, however, even an unsuccessful lawsuit can provide critical insight into the otherwise secret world of campus due process.

Yet in two important respects, the interests of litigants and of the public are at odds. First, and quite understandably, wrongfully accused students want to end the process as soon as possible. In almost all cases, their primary goal is an expungement of their record, given the life-altering consequences of a wrongful finding of sexual assault. The public, by contrast, has an interest in a process lengthy enough to require the university to turn over internal documents relating to its disciplinary process—and to get university disciplinarians under oath.

These two interests most obviously come into conflict in settlement discussions. With the exception of Brown (and, oddly, Brandeis), most colleges and universities have entered into settlement discussions shortly after losing a motion to dismiss. The two most recent settlements—both troubling cases profiled by Ashe Schow—came at Lynn University in Florida and Allegheny College in Pennsylvania. In a twist, both settlements came shortly after court rulings requiring some degree of participation in the lawsuit by the accuser, setting up the possibility of cross-examination that the schools had gone out of their way to prevent.

It’s easy to see why the accused students settled; otherwise, their lives would have been on hold indefinitely. But the settlements also ensured that the public will learn no more about these deeply disturbing cases.

Secrecy

The interests of litigants and the public also are in opposition with regards to publicity. The first round of litigation after the Dear Colleague letter—cases at Xavier, St. Joe’s, Miami (Ohio), and Vassar—all featured students suing in their own names. Now, virtually all suits are filed under “John Doe.”

For reasons recently explained by Judge Philip Simon (in a case at Notre Dame), this shift is in the best interests of justice: the marginal benefits to the public knowing litigants’ identity are overcome by the litigants’ need for privacy. But the shift nonetheless represents a tradeoff and prevents those who cover the cases from getting a better sense of the personalities involved.

The far more troubling new development involves the sealing of all or much of the case file. Such efforts initially came mostly from accusers—in cases at Georgia Tech, St. Thomas, and (involving her subpoena) Amherst. But in two recent cases—James Madison and Notre Dameaccused students have entered into agreements with their universities to file material, including the transcript of the disciplinary hearing, under seal.

It’s understandable why an accused student would want to take such a course—even if innocent, the material in the campus process can be personally embarrassing. And not all of material is permanently shielded from the public—judges can cite from it in their opinions, as the two judges did in the critical due process victories at JMU and Notre Dame. But one reason why I was able to write so extensively about Amherst is that the accused student’s lawyer, Max Stern, placed all aspects of the disciplinary file, including the transcript, into the record, fully open at PACER.

In contrast to the “John Doe” issue, judges should push back on closing non-redacted material from public view. The public has a right—indeed, an obligation—to learn as much as they can about the unfairness of the campus disciplinary process. And as things stand now, due process lawsuits represent the only way for the public to achieve an unvarnished view.

To date, the Trump administration has made no efforts to push back any of Obama’s anti-due process policies. And it’s not at all apparent that, even if they did so, colleges would do much to restore a sense of fairness. So litigation—despite its clear limits—will remain the best avenue for both justice and transparency.

A Judge Catches Notre Dame Acting Badly in a Title IX Case

Notre Dame stands to lose a Title IX case in an unusual flurry of kangaroo court blunders. It “investigated” the case and came away only with the female’s hostile emails, none of her loving ones (knowing that many emails were missing). When the male contemplated suicide, Notre Dame interpreted those thoughts as “dating violence,” and the male was denied a lawyer on grounds that the procedure was “educational” and not “punitive.” The “non-punitive” action cost him a lot of tuition money, banned him from taking two finals and got him expelled.

A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by the accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university.

A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by an accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university involved.

The specifics of the case were a little different from most due process cases. The couple had been in an ongoing relationship, for about a year. The male student (who I’ll call JD) suffered from depression in summer 2016, and this past fall, the accusing student (who I’ll call AS) decided to break things off after JD started sending her text talking about how he might commit suicide. She also reported JD to the Notre Dame Title IX office, which concluded that the texts constituted “dating violence,” since they purportedly manipulated AS.

Related: The Title IX Mess—Will It Be Reformed?

The accusing student then indicated a desire not to move forward with any allegations and reconciled with JD, only to change her mind again and reinstitute charges. Notre Dame immediately issued a no-contact order between JD and AS, to which JD responded by deleting AS’s contact information, and all of the duo’s texts, from his phone. AS, on the other hand, retained their full text message history.

Notre Dame conducted an “investigation,” but for all practical purposes, AS was the university’s investigator—she turned over text messages from her cache, but only ones that made JD look bad. As Judge Simon explained, Notre Dame had no idea that—after AS first went to the Title IX office—AS identified as Jane by the judge:

told him to “Come overrrrrr.” [Id.] He proposed that they “take a nap” and she responded that “I‘M SO PUMPED.” [Id. (emphasis in original).] The following week, on November 7th, Jane asked John if he could sleep over. Jane then implored John to “Come to champaign” (sic), which seems to have been a reference to him meeting her in Champaign, Illinois. She also offered to meet him in Chicago. [Id.] Jane then asked John to come over that day because “she was having a really bad week already and I just wanna cuddle.” The following day they planned to get together again. Jane asked John “where you at (sic)” and he responded that he would “be there in 15 minutes.” Jane’s response demonstrated that she was happy to be seeing him. She said “yayyy.” The next day they planned to meet up again at Chipotle around the noon hour. And then later that night they must have planned another get-together because Jane told John that she was coming “to pick him up.” A week later, on November 15, Jane told John to “sleep overrrrrrrrrrr.” She later had a change of mind and canceled because she needed to study and he responded that that was no problem. John told her that he loved her and Jane responded that “I LOVE YOU TOO.” [emphasis in the original.]

Incredibly, Notre Dame never asked AS to turn over all text messages (which only came to light as part of the litigation). According to the complaint, Notre Dame also ignored copious exculpatory information, including a videotape of AS saying, “I want to fuck up his [JD’s] reputation; I want to make sure he never has a girlfriend . . . here or anywhere . . . and I want him never to be able to have a social life.”

Related: Title IX Tramples Free Speech and Fairness, So Now What?

At this stage of the lawsuit, JD asked for very narrow relief—that Notre Dame allows him to take his two remaining final exams, and give him grades for those courses. Simon granted that request. But the judge’s ruling also indicated grave concerns with three aspects of Notre Dame’s investigation, and his wording suggests this lawsuit could be very difficult for the university to win. He focused on three principal issues:

(1) Evidence. “The University’s investigation might have been arbitrary and capricious,” Simon noted, “for failing to obtain and review the entire context of the couple’s texting history.” Indeed, he added, “the text messages that . . . were not available to the Hearing Panel—text messages showing sleepovers, naps together, invitations to go on trips, and lunch dates—strongly suggest that Jane did not feel threatened or intimidated by John.” In some ways, Notre Dame’s conduct was more egregious than that of the foundational text-message case (Amherst), since here, the university knew that a text message history existed, and still didn’t ask for the whole file. AS conceded in a filing to the court. Her attorney, meanwhile, bizarrely claimed that the lawsuit had left her in threat of “physical” harm.

(2) Procedure. Simon criticized multiple aspects of Notre Dame’s procedure. He noted that the university essentially allowed AS to introduce character evidence but denied JD the same right, seemingly lest the accuser be traumatized. He questioned the university’s denial of direct cross-examination; Notre Dame instead used a “stilted method” of requiring JD to submit questions to the panel, which he hoped they would ask, not allowing “for immediate follow-up questions based on a witness’s answers, and stifling [his] presentation of his defense to the allegations.”

(3) Purpose. Judge Simon appeared baffled by the university’s decision (typical in these circumstances) to deny the accused student a lawyer. And he made clear he didn’t like the university’s response. When asked “why an attorney is not allowed to participate in the hearing especially given what is at stake—potential dismissal from school and the forfeiture of large sums of tuition money—Mr. [Ryan] Willerton, the Director of the Office of Community Standards and a member of the Hearing Panel, told me it’s because he views this as an ‘educational’ process for the student, not a punitive one. This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”

This statement was a remarkable denunciation of the kangaroo court structure evident at most universities in sexual assault cases. While Simon termed his comments “conjectural,” it’s hard to see how his mind would be changed on these points, since the facts of Notre Dame’s procedures and text messages already have been established.

Will Notre Dame take from this rhetoric a need to settle? And, more broadly, will other judges learn from this impressively reasoned opinion?

Professor Laura Kipnis–She Faced Title IX Charges for Writing an Essay

It is not too early to say that Unwanted Advances: Sexual Paranoia Comes to Campus by Laura Kipnis, professor of film studies at Northwestern University, will be one of the most important books of 2017. Kipnis gained some notoriety two years ago when she was hauled before her school’s Title IX investigators on a complaint of creating a sexually hostile environment because of an essay she wrote criticizing the campus sex panic, with a focus on the case of Peter Ludlow, a Northwestern professor brought down by accusations of sexual misconduct toward an undergraduate and later also a graduate student. (See Minding the Campus coverage of the case.)

Now, Kipnis tackles the same subject in a book that takes an unsparing look at the current campus climate, from the witch-hunts to the trigger warnings. And she does so from a liberal feminist point of view—one of the things that exasperates her most about this new climate is the infantilization of women, reduced to eternal helpless prey—that makes it difficult to dismiss her as a backlash peddler. Even the devoutly feminist New York Times opinion writer Jill Filipovic, who assailed as misogynistic another book on the subject, Campus Rape Frenzy by K.C. Johnson and Stuart Taylor, described Unwanted Advances in the same double review as “persuasive and valuable” if “maddening.”

CATHY YOUNG: So, the genesis of the book is that you wrote the essay for The Chronicle of Higher Education about the then-ongoing Peter Ludlow case at Northwestern and the excesses of Title IX and what you called the “sexual paranoia” on campus—and then you got hit with a Title IX complaint.

LAURA KIPNIS: I was writing about this increasing climate of sexual paranoia, and I knew about the Peter Ludlow case. But I didn’t know anything about Title IX until I got this letter saying that there was a Title IX complaint against me.

CATHY YOUNG: So at the time you were writing your essay, did it ever occur to you that you could be the subject of a complaint?

LAURA KIPNIS (laughs): Oh gosh, no. I don’t think it would have occurred to anyone that you could be the subject of a Title IX complaint for writing an essay. When I got the letter, I was immediately curious—was this the first time someone had applied Title IX to an essay. But of course, there’s no way to know that, because it’s not public and there’s no centralized database of cases. We’re starting to hear more as these cases hit civil courts. They’re popping up every day and they’re new variations on the theme, which is really capricious prosecutions of people on strange grounds.

CATHY YOUNG: Did you find any other cases in which someone was targeted for a Title IX complaint based simply on something they wrote?

LAURA KIPNIS: I did have a case—sometimes, you’re not clear, is it precisely a Title IX case. I had a case of a professor of intellectual history [where] a student complained about his assignments on gender. Sometimes these complaints go through various administrative offices and I’m not sure they’re precisely Title IX. One of the problems in writing about this stuff is, you don’t always know—you know what somebody told you. You don’t have the documents, you don’t have the whole picture. So I’m not sure, off the top of my head, if I know of another case where it was simply speech. But sometimes speech would get brought into these cases—like, a poet who was asked, why are you teaching poems with sexual content, that sort of thing.

CATHY YOUNG:  Did you have any concern that you could get in trouble again because of the book?

LAURA KIPNIS: Oh yes, definitely. I think I could be subject to some of the same charges of retaliation [against Ludlow’s accusers]. Although, since I was already found innocent on the retaliation charges, it would be difficult to bring those charges again. But they could.

CATHY YOUNG: What has the overall reaction been to your book? Are there reactions that have surprised you, pleasantly or unpleasantly? 

LAURA KIPNIS: I’m obviously pleased that the reviews have been so overwhelmingly positive. The first review from an explicitly feminist site also just came out—Broadly—which was a subtle and positive reading of the book. What’s most surprised me is that I expected a lot of discussion—and a lot of pushback—in the feminist media and blogosphere and I haven’t seen that. You tend to see what’s posted as people usually tweet things once they’re up, though there may be things I’ve missed.

Maybe the pushback is to come. What’s been great is that even reviewers who say they’re to some degree irked by the book—the two New York Times reviewers—have been honest enough to say that it’s also persuasive and “necessary.”

CATHY YOUNG: This climate of what you call sexual paranoia today—in the 1990s, there was, as I’m sure you know, a lot of debate about the sexual climate on campus, about sexual assault, sexual harassment. Then this discussion more or less dropped off the radar and lay dormant for a number of years, and now it’s back. Do you see a difference between the way this issue played out in the nineties, as compared to today? Did you pay attention to it in the nineties?

LAURA KIPNIS: Oh yes, particularly to the anti-porn feminist contingent, [Andrea] Dworkin and [Catharine] MacKinnon. I think that is a lot of the difference—[in the 1990s] a lot of the energy and mobilization had to do with pornography under their auspices, and I think the same impulses are persisting now, but without pornography. I think most students—that I encounter, anyway—think that porn is benign, but this issue of campus rape culture is having such an ascendant moment now. I think the impulses are the same.

CATHY YOUNG: Is there a difference in the level of support from students? Obviously, anti-rape activism on campus existed then, but it seems that there’s a much larger percentage of the student body that is swept up in this today. Is that your impression as well?

LAURA KIPNIS: That’s what’s so hard to gauge. It’s not like we have data on this. There’s a lot of attention being paid to rape culture activism, and maybe in some ways, it’s seen to dovetail [with] or have the same kind of constituencies as, Black Lives Matter and the racial justice movements, whereas I think they’re politically different sorts of movements. But I don’t know how much support there is on campus! My own students—I should backtrack and say, the students who marched against me during that campus protest and the students who brought a complaint against me, these were not my students; these were students I didn’t even know.

My own students—they have social concerns, but I don’t think, for the most part, they’re activists. What percentage of students [on my campus] would say they’re in support? I don’t know. There are a lot of students who feel like they need to be on the right side of the issue. So there are people—say, people in student government—it’s a [big] concern to them to make sure that they’re known to be on the right side of the issue. And even frat presidents make all those public statements to indicate that they’re on the right side of the issue, that they support survivors, that they take sexual assault very seriously.

CATHY YOUNG: How did your students react to the charges against you? Were you allowed to discuss the case with them?

LAURA KIPNIS: Yeah, sure. No one would have disallowed it, it’s just—my own students didn’t bring it up, so it’s not like I would have devoted a class to talking about my own situation.

CATHY YOUNG: Were they aware of what was going on?

LAURA KIPNIS: Oh, yeah. My students—they’re sort of sweet. I actually did say to some students that I knew—we were talking in a casual way, and I said, “How come nobody ever brought up the fact that there has been this protest march against me?” They treat me with some irony, and one of them said, “Oh, Laura, we knew about it.” But nobody said anything! (laughs) Maybe they thought it would be impolite.

CATHY YOUNG: Some polls show that there’s a lot more support among students today, compared to ten or twenty years ago, for the idea that you shouldn’t express things that are hurtful to someone else—that offensive speech which triggers someone or causes them emotional damage should be regulated. Is that something you’re seeing? Do you think there is a troubling level of support for censorship, in that sense, on campuses?

LAURA KIPNIS: I’m probably a frustrating interviewee, because I have a hard time generalizing. (laughs) I don’t know. Is there a general level of support for something? I haven’t seen any polls on this. With my own students, they are very much individuals. I think because of the kind of education they’ve had, they’re very attentive to issues about minorities, about discrimination, about social justice, about using language that would make minority people feel stigmatized—any kind of minorities. I remember a discussion recently in a class where somebody used the word…

I remember a discussion recently in a class where somebody used the word… (pauses) What was it? It was some synonym for… maybe somebody said “mentally handicapped,” and somebody said, “I don’t like that term.” Or maybe it was some other term, and he preferred “emotionally handicapped” or “intellectually handicapped.” You have things like that crop up, where somebody thinks someone else’s language is problematic. So yes, I have seen that happen in my classes. Certainly on things like gender, sexual orientation. At the same time, I think they’re very open-minded to the difference, which I think is an upside.

CATHY YOUNG: Speaking of campus speech, your appearance at Wellesley caused quite a controversy, with some professors publicly stating that speakers like you are harmful and shouldn’t be invited. Do you have any further campus appearances planned? Obviously, you’re not Ann Coulter, but are you concerned about protests getting out of hand?

LAURA KIPNIS: I’m going to the University of Oregon and Simon Fraser University at the beginning of May, but not expecting trouble. I’m obviously not as deliberately incendiary as someone like Coulter or Milo [Yiannopoulos], who clearly want to provoke a reaction and are invited for that purpose. So I’d be surprised if anything like that arose, especially since so many of the reviews have made persuasive arguments on behalf of the book.

CATHY YOUNG: Moving on to sexual misconduct, there’s been a lot of debate about whether Title IX is a good way to handle accusations of sexual assault on campus, or should we be channeling those complaints into the justice system and try to refer them as much as possible to the police for a real investigation. Where do you come down on that? Do you think the Title IX system just needs reform so that it doesn’t run roughshod over the rights of the accused the way it has recently, or do you think that we should be working toward deemphasizing it as much as possible and try to work within the actual justice system?

LAURA KIPNIS: The problem is, both sides are a mess. The obvious thing to say is that the campus system has been a kind of overcorrection in response to the feeling, and the actuality, that the justice system and the police have overlooked rape and sexual assault too much, and that it was too difficult for students who’d been assaulted to work their way through that system. The problem is that the on-campus system seems to be very unprocedural. They obviously don’t have the rules of evidence that you would want to see, but they also don’t have real fact-finding capabilities.

When a Title IX officer on campus does an investigation, she or he doesn’t have subpoena power, that kind of thing, and is free to ignore evidence that they want to ignore. I’m not a policy person; I’m a cultural critic. I was in a discussion the other night with Seamus Khan, who’s at Columbia and he’s a sociologist who works on these issues. So I said I thought, if you’re talking about rape, forcible sexual assault, these should be handled by the police—because, for one thing, to expel somebody is not sufficient punishment for assault. And he made the point, which is a good point, that one reason to avoid that system is that it’s often been very unfair to minorities, we know the situation of black men in the criminal justice system. So either way that you come down, there are huge problems.

CATHY YOUNG: Obviously, a lot of the cases that you’re discussing don’t rise to the level of criminal sexual assault, but they may involve one student behaving badly toward another. Do you think there is a place for some sort of campus system that could handle non-criminal but damaging conduct within the community, without necessarily labeling it as rape? 

LAURA KIPNIS: I think that’s a really interesting idea. Because I do think campuses are communities, and the idea of some sort of community judgment or community standards where grievances are brought forward and heard—it’s a really interesting idea. Because the fact is that there is a lot of shitty sexual behavior that goes on, and the majority of it is by men toward women, and anybody who thinks that’s not the case I think has their eyes closed. So, I’m very much in favor of emphasizing an educational approach to this, and especially educating women in how to get themselves out of situations that aren’t going well, out of situations that don’t feel good.

I really do think, the more students I talk to, that there are a lot of women having sex in ways that are either physically uncomfortable or emotionally injurious or some combination, or things have happened that they didn’t want to have happened, people are drunk out of their minds. And honestly, having some drunken guy on top of you who outweighs you by 80 lbs. may not be the world’s best experience. So, I think all that should be talked about more openly, in ways that stress education over regulation.

CATHY YOUNG: So, in a way, this whole debate over “is this rape or is it not rape” is taking us in the wrong direction, isn’t it?

LAURA KIPNIS: I would have to say, and maybe I’m a bit old-fashioned on this point—I think the dividing line is the use of physical force to [make someone] have sex, and I do think that’s a criminal matter.

CATHY YOUNG: Or if we’re talking about someone who is not just intoxicated but physically incapacitated, to the extent that they are unable to remove themselves from the situation.

LAURA KIPNIS: Absolutely true. But then you get into questions that are complicated—how drunk is too drunk to consent, the fact that people can be in a blackout state and seem conscious. I think people are trying to draw hard and fast lines, and Title IX investigators are in that position of making pronouncements in fuzzy situations.

CATHY YOUNG: One of the things that the 2011 “Dear Colleague” letter [from the Department of Education’s Office of Civil Rights] did with regard to sexual assault on campus, besides requiring a lower standard of proof for Title IX complaints, was to prohibit mediation in such cases. Yet it seems that in many of those gray-area situations—for instance, where someone felt pressured into sex but didn’t feel able to speak up—mediation would be a much better way to go. What’s your opinion on that?

LAURA KIPNIS: It seems like a strange mistake, and I don’t understand it at all. Some of these measures really push in the direction of policing and turning campuses into increasingly carceral atmospheres—where mediation I think would make much more sense, and would also be educational as opposed to punitive.

CATHY YOUNG: You mentioned before that there’s a lot of bad behavior going on sexually on campuses and most of it is by men toward women, and it includes women feeling pressured into things they don’t really want. To play devil’s advocate: do you think the way we see this is also partly rooted in very traditional ideas about sex being something men get from women? For instance, if it’s a guy having sex with a woman he wouldn’t have had sex with when he was sober, it’s difficult for people to see him as a victim, even if he feels bad about it the next day. There are studies where almost as many young men as women will say that at some point they went along with a sexual situation they didn’t want, but it’s not part of our cultural language to see these men as having been done wrong.

LAURA KIPNIS: My sense is that there are a lot of contradictory ideas or subjectivities floating around when it comes to gender and sex. I have the sense there are a lot of women students who have three or four different positions on it at once: on the one hand, they want to have sex like the guys, and this could be meaningless and they’ll be the aggressors in the situation and then they’ll ditch the guy, and that’s all fine, and then that kind of competes with this other position of feeling you have been wronged and that sort of thing.

I also do think there is a lot of gender traditionalism that comes out—I say this in the book—when people drink. The more people drink, you get the sense that men become more aggressive and women become more passive, partly because they’re just more incapacitated by alcohol. So it may be that there are guys who have sex in circumstances when they didn’t want to, I’m sure that’s completely true. I do think that men—maybe this is stereotyping, but men are the ones who are more willing to force a situation, to pressure somebody, to coerce, to plead, to persuade. Maybe women have other tactics that they use—that we use to get sex from a reluctant guy. But the problem is, you’ve got this gender traditionalism in the mix with this supposed gender neutrality—we’re all equal here, and girls and guys are all on an equal playing field.

CATHY YOUNG: Still, in some of the situations you discuss in your book—including the one with Ludlow, especially his relationship with the graduate student—the women are very aggressive at times, and may even be in a quasi-dominant position. So isn’t it a lot more complicated?

LAURA KIPNIS: With the grad student, I feel on firm ground saying that, because I read their text messages and emails. I definitely think that was more in love and she had more power in the relationship, partly because she had another [boyfriend]. That’s not something that gets taken into consideration in these proceedings.

CATHY YOUNG: You also mentioned this one case in which the woman sued [claiming she was too drunk to consent], and there was evidence that she had made aggressive sexual advances toward the accused and his friend—

LAURA KIPNIS: Yes, in Colorado.

CATHY YOUNG: And she did get a disciplinary finding against her, because the other man, the friend, made a complaint about her making non-consensual advances toward him.

LAURA KIPNIS: Yes, but that’s a case where she got a $800,000 settlement also.

CATHY YOUNG: And the accused man, in that case, another grad student, was expelled?

LAURA KIPNIS: Yes, he was.

CATHY YOUNG: That was another interesting example that seemed to go against a pattern of intoxicated women being more passive—she was anything but.

LAURA KIPNIS: That’s true—good point.

CATHY YOUNG: Are you familiar with the Amherst case where they were both drunk but he didn’t remember anything, and her text messages showed that she made advances toward him? It seems that in a lot of cases this is very complicated.

LAURA KIPNIS: I like the position that you take on it—in some ways, I agree with you, in other ways, I’m trying to balance all of this out. But I like that that’s what you stress—female agency.

CATHY YOUNG: A number of social conservatives, such as Wendy Shalit in A Defense of Modesty, have argued that the real problem is that we have been chasing a utopian idea of equality instead of recognizing that traditional norms served women best by assuming that they will not have sex in casual situations. Their argument is that those norms empowered women to say no [without having to justify it]. Do you think there is anything to this argument? Should we be more sensitive to traditional notions of sex differences, or go forward to more equality?

LAURA KIPNIS: I don’t find Shalit’s argument compelling at all. I don’t know where to even start with this. (laughs) The version of feminism I would subscribe to looks at historical structures as opposed to inborn [gender differences]. Maybe propensities are inborn, but I also think that these are social structures, and if you’re a feminist you want to push toward ones that allow for women and men to have equal lives and equal versions of autonomy and equality in personal lives. This idea of gender traditionalism as something to [aspire to]—this could not be more inimical to what I think.

CATHY YOUNG: Well, the argument some would make—in the book, you referred to an incident your mother had in which a professor was literally chasing her around the desk and she was batting him away, and you were saying it’s ironic that a woman in that pre-feminist era seemed to be more assertive in fending off unwanted male advances than many women seem to be in our feminist age. And this is where some would argue that partly, in that era, it was presumed that women would reject male advances; there was a social framework in which women were supported in say no or even slapping a man in the face if he was sexually aggressive.

LAURA KIPNIS: Oh, come on—there were also women getting raped, there wasn’t access to birth control. There has certainly been a tremendous amount of progress on the gender front. It’s not like you want to look backward with nostalgia at the good old days when professors were chasing women around [the desk]. I don’t, anyway.

CATHY YOUNG: One area that you didn’t really get into in the book is that there’s a racial angle to a number of these campus cases—minority men who are accused of sexually assaulting white women, and some of these accusations definitely have questionable circumstances. Do you find it odd that at a time when there is so much sensitivity to minority issues, and especially to the issue of minority men being mistreated by the police, there doesn’t seem to be much awareness of that in the progressive community on campus?

LAURA KIPNIS: I’ve heard that there are some student groups that are aware of that. There was some kind of conference—a student conference at Brown, I believe, a couple of years ago, and it was under the auspices of “fight the carceral versions of Title IX.” The term “carceral feminism,” I think, gets brought up by people—and I think it is feminists on the left, who call themselves leftists—who are trying to make that issue be known.

CATHY YOUNG: Do you see the situation [with regard to Title IX] changing at all under the Trump administration?

LAURA KIPNIS: I think everyone is waiting to see what [Betsy] DeVos and these new people in the OCR are going to do. I can only think that they’re going to dial back on the “Dear Colleague” letters. But the question is what that means on the ground because these infrastructures are already so much in place, and with the student activists there is so much pressure to keep the adjudication machinery going—the Department of Education might dial back and it still might not change on campus. I think what will change [the situation] is these cases moving through the civil courts, and some of the decisions that are coming down are really, I think, forcing campuses to review the due process issues. It does seem like it’s all heading for some kind of clash. When we all assumed that [Hillary] Clinton was going to be President, that’s what I assumed—that this would end up, perhaps, in the Supreme Court, over the constitutional issues that are raised by Title IX. At this point, I don’t know—I don’t think anyone is really predicting.

CATHY YOUNG: Perhaps the flip side of this is that the cultural left—for lack of a better word—has been incredibly energized by Donald Trump’s election. Could this lead to more pressure from campus activists? In the current atmosphere where so many people feel there is a “war on women” coming from Washington, do you think there is going to be more of a backlash against anything that’s seen as rolling back protections for women? 

LAURA KIPNIS: That’s a good point; I hadn’t really thought about it, but it makes sense to me. [But] like I said, I think that with more and more of these cases hitting the courts, I think that will achieve some kind of turnaround. Maybe Congress will also subject this to congressional review at some point.

CATHY YOUNG: With your book among others, do you that we will see more of a pushback in the liberal and progressive community against some of the overreach—not only on Title IX but on “safe spaces,” with regard to both sex and speech?

LAURA KIPNIS: I think there will be rethinking,  particularly as more information gets out. I think the issue is that, in terms of Title IX, the information isn’t out there because it’s all confidential. The book by [K.C.] Johnson and [Stuart] Taylor, I think, puts more information out there. I wish it had had a different title—Campus Rape Frenzy seemed to be appealing toward a certain crowd, toward right-wing or anti-feminist sensibilities. [But] it was really thoroughly researched, far better than my book on explicating the tangled history of Title IX.

I do think that people who consider themselves liberals are concerned, certainly, about speech issues. Any classic liberal is concerned about speech [and] due process issues, for sure.

CATHY YOUNG: As far as getting more information out there, do you think the confidentiality rules for Title IX cases should be relaxed?

LAURA KIPNIS: Yes, absolutely. I don’t see a reason for it, particularly since these cases are hitting civil courts and a lot of them under “Doe” directives, where it’s “Jane Doe” and other pseudonyms in the cases. There should be far more transparency than there is. That doesn’t mean people’s names have to be used. But I do think that, as I exposed some of this information because these documents were not, as far as I understood it, confidential—I think just people reading about how these decisions are made and how preponderance is achieved has been shocking for some people, who thought this was all a fair process.

CATHY YOUNG: That was one of the fascinating things in your book—you shed a lot of light on what exactly goes on with the preponderance standard, where it seems to be a matter of, as you put it, either guesswork or caprice.

One final question: at one point, there was an active group called Feminists for Free Expression, which did a great deal to counteract the Dworkin-MacKinnon anti-porn feminism. Is there a need for a group, either feminist or more broadly progressive, in opposition to some of the speech and sex regulations that we’re seeing now?

LAURA KIPNIS: I would love that. You know, my sense is that there are a lot of people who are afraid to say what they really think. People have said that to me personally and in emails. They want to be seen as being on the right side of these issues. But the more people speak out about the bizarre experiences that they’ve had, the sort that I’ve had, and talk about what’s going on behind closed doors—maybe more people will come forward, and such a group would be a possibility.

Without a Known Complaint, the Feds Can Force an Accused Student Out of his Dorm and Some Classes

A college student accused of sexual assault or harassment can have his dorm and class schedule changed without knowing who accused him or what the accusation is.

An administrator at a well-regarded eastern college says this:

“A student who accuses another student of violating campus policy as it relates to sexual assault or harassment may choose to keep her identity confidential. Since the Department of Education’s Office for Civil Rights requires “interim measures” to protect the complainant, it is entirely within the realm of possibility that a no-contact order is implemented by moving the accused student out of his current residence hall or changing his class schedule without his ever knowing with whom he is not to have contact.

“If the accused student is subsequently found “not responsible” for violation of the student conduct code (which is all a campus can actually adjudicate), interim measures that negatively affect him can be removed. However, the complainant can choose to maintain the no-contact order by changing her residence or class schedule and the campus—having just determined that no violation had occurred—will need to accommodate that request.”

Duke Reports a Sexual Assault Rate 5 X as High as Our Most Dangerous City

Over the last few years, we have become all but immune to what, under any other circumstances, would be a fantastic claim—that one in five female undergraduates will be victims of sexual assault. This rate would translate to several hundreds of thousands of violent crime victims (with almost all of the incidents unnoticed) annually, and, as Emily Yoffe has pointed out, implies that about the same percentage of female college students are sexually assaulted as women in the Congo where rape was used as a war crime in the nation’s civil war.

Even within this environment of pie-in-the-sky statistics, a recent survey from Duke stands out. According to the survey, 40 percent of Duke’s female undergraduates (and 10 percent of Duke’s male undergraduates) describe themselves as victims of sexual assault. This data would mean that each year, a female undergraduate at Duke is 5.5 times more likely to be a victim of violent crime than a resident of St. Louis, which FBI statistics listed as the nation’s most dangerous city in 2016. And yet, incredibly, parents still spend around $280,000 to send their daughters into this den of crime for four years.

But 88% of Women Feel Safe

As always occurs with these surveys, the internal data renders them highly unreliable. But in this case, the internal data suggests a survey at war with itself. A few examples:

The survey indicates that 88 percent of female undergraduates say they feel safe on campus. So—at a minimum—28 percent of Duke female undergraduates say they feel safe at a school where they experienced sexual assault. Similarly, 74 percent of female undergraduates consider sexual assault a big problem on campus—meaning that at a minimum, 52 percent of female undergraduates feel “safe” on a campus where they think sexual assault is a “big problem.”

The most startling rate of self-described sexual assault victims comes among lesbian and bisexual female undergraduates, 59 percent of whom say they were sexually assaulted while at Duke. And yet, according to a later table, zero female undergraduates list a female as the perpetrator of their assault. Even assuming that every bisexual student surveyed said she was assaulted by a man, this figure would suggest that a significant portion of Duke lesbians are having some type of sexual contact with men (nearly all of whom, it appears, then turned out to have been sex criminals). Could anyone take such data seriously?

If true, these figures would suggest a violent crime epidemic not merely for Duke but for the city of Durham. Significant percentages of the alleged sexual assaults occurred in a category described as “off-campus/local,” thus falling within the jurisdiction of the Durham, rather than the Duke, Police Department. Yet no signs exist of the Durham Police paying more attention to this purported crime wave in their midst, or that the Duke leadership has asked them to do so.

‘Fundamentally Unfair” to Men

At heart of the issue is the extraordinarily broad definition of sexual assault—a term with a common cultural and legal understanding—used in surveys like the Duke one. The survey lumps together being “touched or grabbed” in an unwanted way (61 percent of the self-described victims) with sexual assault by force or threat (22 percent of the alleged victims) as if the severity of the offenses were the same. Even the survey takers appear to recognize the folly of this approach; 41 percent of self-described female sexual assault victims describe the experience of being sexually assaulted as not very upsetting—or not upsetting at all. The university’s response? Asking whether this figure indicated “a need for broadly disseminated programming on the impact of sexual misconduct.” Duke already has increased “the number of staff providing counseling and support services and conducting investigations.”

Perhaps the saddest item from the survey: 57 percent feel that students accused of sexual assault are treated fairly. They’re responding to a system in which Duke has had two negative judicial decisions, the most recent of which featured Judge Orlando Hudson characterizing the Duke procedures as “fundamentally unfair.” There is, of course, no reason to believe that most students have any idea just how unfairly Duke treats students accused of sexual assault.

Why Won’t the Media Review the Campus Rape Book?

Campus Rape Frenzy, the new book by KC Johnson and Stuart Taylor. Jr. deals with the gross unfairness and lack of due process for males accused of sexual assault on campus. It has been reviewed by The Wall St. Journal, National Review, The Daily Caller, American Conservative, Real Clear Politics and Campus Reform. Notice any trend in that list? Yes, they are all conservative outlets.

So far we haven’t noticed any mainstream or liberal outlet reviewing the book, though it’s possible that we or Google have missed one or two. MTC didn’t expect The New York Times to review it since The Times rarely reviews conservative books. In this case, the book demonstrates that in one case after another The Times produced slovenly, misleading and inaccurate reporting on the subject as it did in the Duke lacrosse fake rape case. But all, or almost all, other outlets boycotted the book too? Under pressure from campus feminists and liberal orthodoxy, our press corps, like our universities are signing on to massive dishonesty.

Here is an anonymous online commenter making a similar point:

“I’m trying this on for size for why I avoided the book. The book is simply too depressing and discouraging. We have gotten to the point that, under powerful pressure from the Federal government and others, most of our universities, supposedly the bedrock of our intellectual life and important repositories of our knowledge of the past, have created systems that are massively unfair and inconsistent with our historic principles of justice.

The average person dares not question this massive apparatus without the high risk of personal or professional woe and possibly destruction. The underlying source of this is the power of the state, which has taken a well-intentioned statute and turned it into a weapon of political and cultural destruction. This has happened in plain sight. Our politics, our media, our educational leaders and so far our courts have proved to be timorous and so far ineffective counterweights to this power. I already know this. It’s discouraging to drag myself through it again.”

Obama OCR Moves to Deter Any Trump Reform

As the Obama administration draws to a close, opponents of campus due process have launched an aggressive public relations campaign on behalf of their agenda, lest change comes with a new regime in the White House.

The highest-profile effort came from Joe Biden, who penned an open letter to the presidents of the nation’s colleges and universities urging them to continue to meet the “epidemic” of campus sexual assault. (This is seemingly the only violent crime “epidemic” in American history in which law enforcement is to have little or no role.)

Perhaps the most striking item in Biden’s letter was his assertion that “twenty-two years ago, approximately 1 in every 5 women in college experienced rape or sexual assault. Today, the number is the same.” Setting aside the absurdity of the statistic (which would imply hundreds of thousands of unidentified victims annually, just among college students), this claim amounted to an admission that the admission’s war on campus due process has done nothing to lower the number of sexual assault victims—which, according to Biden, is at the “same” percentage as 1995.

The Vice President did not once mention due process or civil liberties in his letter.

As Biden released his letter, Democratic senators Bob Casey and Patty Murray pressed the incoming Trump administration to retain Obama’s interpretation that Title IX requires schools to use the lowest standard of proof in sexual assault cases, give sexual assault accusers the right to appeal not-guilty findings, and discourage procedures in which sexual assault accusers can be cross-examined about their allegations.

Portraying campuses in the midst of an unprecedented wave of violent crime, the senators contended that “campus sexual assault is a widespread problem affecting millions of college students across the nation.” The senators did not identify the source for their claim that “millions” of college students are affected by sexual assault. Nor did they explain why these “millions” of crime victims should not be an immediate priority of the nation’s police.

Accusers’ rights groups such as Know Your IX got into the act with a social media campaign demanding that incoming Education Secretary Betsy DeVos make no changes to the Obama administration’s Title IX policies. The implicit message: any effort to restore due process or a semblance of fairness to campus tribunals will be denounced as hostile to “survivors.”

But perhaps the most consequential move to retain the war on campus due process came outside of the public eye. On January 4, the Harvard Crimson broke the news that Harvard’s Title IX administrator, Mia Karvonides, was planning to depart her position abruptly. Karnovides had overseen one of the most unfair adjudication systems for campus sexual assault anywhere in the country.

Karnovides’ new position? Enforcement Director at the Office for Civil Rights (OCR), the agency that has served as the center of the war on campus due process during the Obama administration. Her starting date? January 18, or two days before Barack Obama leaves office. It seems unlikely that Karnovides would have accepted the new position if she lacked civil service protections.

The midnight appointment can only be interpreted as placing a key figure in the bureaucracy to disrupt any Trump administration effort to restore a sense of fairness to Title IX enforcement. Will the new administration respond?

Ruined by the Beach Boys and Other Title IX Disasters

In the latest expansion of the intent of Title IX, a University of Kentucky Professor drew punishment this month, partly, he says, because he was found to have engaged in “sexual misconduct” by singing a Beach Boys song at a university gathering in China last year. The professor, Buck Ryan, who directs the University’s Scripps Howard First Amendment Center, claimed in an op-ed published in the Lexington Herald Leader  that “under Administrative Regulation 6:1, Discrimination and Harassment, University of Kentucky’s Title IX coordinator ruled that the song, “California Girls,” with names of Chinese universities and cities inserted for the event,  included ‘language of a sexual nature’ and was offensive.”

Although there were no student complaints—essentially no victims—the professor who has three decades of college teaching experience, was refused due process—as is the case for most accused males in Title IX cases—and has been stripped of a prestigious award worth thousands of dollars.

A heavily redacted letter, released by the university, says that no charge of having sexual relations is involved in the case against Ryan, but leaves the impression that Ryan did something major. On December 20, an op-ed in the Louisville Courier-Journal by University PR man Jay Blanton said the Beach Boys song was not the key factor in the case and that Ryan had engaged in “inappropriate touching” and “language of a sexual nature.” Still, no formal hearing, no clearly stated charges and no on-the-record complaining witnesses, but a heavy financial loss and damage to Ryan’s reputation.

Related: The Title IX Mess: Will It Be Reformed?

In comments to the university senate Monday, Ryan said, “UK has weaponized its Title IX office and made the legal office its enforcer. It’s time the faculty stands up to the bully.” Ryan added that the Chinese students at the event, none of whom were contacted by the university, “found the charges against me mortifying and wanted to defend me. They were looking to clear their names, too.”

Since its passage in 1972, Title IX has been expanded from its original intent to end discrimination on the basis of sex in schools that receive federal funding, to include regulations promulgated in the name of preventing a hostile environment for women—broadly defined as “any unwelcome conduct of a sexual nature.” Today, any unwelcome comment to a female student from a male student, faculty or staff member is grounds for a Title IX investigation—with Title IX coordinators empowered to act as police, judge and jury in allegations of sexual harassment ranging from offensive speech to claims of rape.

Harvard canceled the men’s soccer team season because team members sent emails to each other rating women on their physical attractiveness. Columbia University followed suit by canceling the wrestling season after “misogynistic and homophobic” text messages were found to have been sent by members of the team.

This was never the intent of Title IX.  While Presidents Reagan and Bush enforced the original intent of Title IX, the overreach of the law began in 1996 with an ominous “Dear Colleague” letter sent from President Clinton’s Education Secretary to all college and university administrators.  Warning that colleges that did not ‘equalize the participation’ of males and females in athletics, would lose federal funding, the Clinton administration mandated that if the schools could not produce enough female athletes, they would have to cut male athletes—and male athletic programs—until the participation rates of both sexes were exactly the same.

That was just the beginning. While the George W. Bush administration did not expand Title IX, it did nothing to curb the abuses. And, once the Obama administration took power, the Title IX industry that had been created was so confident in its ability to manipulate gender politics on campuses throughout the country, that a whole new set of “Dear Colleague” letters began to arrive on campus in 2011. Enlisting the U. S. Education Department’s Office for Civil Rights to handle all complaints in very specific ways, the “Dear Colleague” letters required colleges to be responsible for harassment and assault that occurs off-campus as well as on-campus.

Related: How the Feds Use Orwell to Apply Title IX

The Obama administration also allowed a lower standard of evidence to “prove” the guilt of the accused. A “preponderance of evidence” standard replaced a “guilt beyond a reasonable doubt” standard.  And, as in the University of Kentucky case, there are no protections for the academic freedom of professors and the free expression of any male student, professor or staff member on or off campus.  There is no right to due process no right to an attorney for the accused—and sometimes, no appeal process allowed.

President Obama’s overreach has caused an explosion of cases. Even Brett Sokolow, who in 2014 as director of the Association of Title IX Administrators, acknowledged in a newsletter to members that in their efforts to enforce Title IX, “they are running afoul of Title IX.”  Claiming that colleges are getting it “completely wrong,” Sokolow advised campuses that “every drunken sexual hook up is not a punishable offense.”

Sokolow knows that colleges and universities have implemented Title IX so poorly that the Office of Civil Rights is currently investigating more than 200 institutions following complaints that the colleges and universities have mishandled sexual misconduct cases.  In just the past few months, lawsuits were filed by students claiming “unfair treatment” at Albany Medical College, the College of St. Benedict and St. John’s University, Shenandoah University, the University Cincinnati and the University of Maryland.

This follows high-profile lawsuits at Occidental College, Columbia University and the University of Tennessee.  Several of these lawsuits have been successful in vindicating the male student, and actually holding college administrators accountable.  Earlier this year, an Ohio federal judge allowed an Ohio State University student’s due process claims to survive a motion to dismiss, holding that the campus Title IX training at the Ohio State University may have “biased Title IX panel members,” allowing the plaintiff to proceed against OSU’s Title IX Coordinator.

Related: Title IX Tramples Free Speech and Fairness, So Now What?

In October, the Office for Civil Rights found that Wesley College in Delaware violated the Title IX rights of a male student who was accused of sexual assault—citing unfair treatment.  And, a  federal appeals court revived a lawsuit by a Columbia University male student who alleged that the university had subjected him to sex discrimination during its investigation of a sexual assault report against him.

For the unjustly accused, the ability to bring these lawsuits are themselves a victory because they reveal that colleges and universities have not been complying with their own procedures.  In most cases, accused students are not given due process – they are denied a chance to respond to allegations, they are not informed of their options for resolving the complaints, they are not given copies of the incident report or other evidence against them before the hearing, they are not allowed to call witnesses on their behalf, and they are often denied legal representation.

Last year in a case at the University of  California, San Diego, Superior Court Judge Joel M. Pressman found that the accused student was impermissibly prevented from fully confronting and cross-examining his accuser and that there was insufficient evident to back the university’s findings that the male student had forced the accuser into sexual activity without her consent. Ordering UC San Diego to drop its finding against the male student, the judge quipped that “When I finished reading all the briefs in this case, my comment was Where’s the kangaroo?”

These campus tribunals are indeed kangaroo courts. A forthcoming book (January 24) The Campus Rape Frenzy, by K C Johnson and Stuart Taylor, draws upon data from two dozen of the hundreds of cases since 2010 in which innocent students have been branded as sex criminals and expelled or otherwise punished by their colleges.  It shows why all of us are harmed when universities abandon the pursuit of the truth—and “accommodate the passions of the mob.”

For those of us who are concerned about free speech and equal protection for all students, the selection of Education Secretary, Betsy DeVos is encouraging.  But, Secretary DeVos will be battling an entrenched anti-male campus culture and the Chronicle of Higher Education has already published a warning that: “Trump Administration May Back Away from Title IX, but Campuses Won’t.”

Taking on the sexual assault industry that has been built up on the backs of innocent male students will be difficult, but President-elect Trump—no stranger to false allegations himself—has already shown a willingness to speak for those who have been silenced.

The Title IX Mess—Will It Be Reformed?

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

College hearings on sexual misconduct are often a travesty of justice. Usually, there is no attorney for the accused, no cross-examination, no discovery, no note-taking, little time for the accused to prepare and often a form of double jeopardy (the accuser can appeal but the accused cannot). Individual universities can broaden the definition of offenses (at Yale “economic abuse” counts as sexual assault) and uninvolved third-party accusations can sometimes launch hearings.

Some comments on what should, and should not, occur:

The Fate of Obama-Era Guidance

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority.

Related: How the Feds Use Orwell to Apply Title IX

But the arrogance of Lhamon and her predecessor, Russlynn Ali, means that the 2011 “Dear Colleague” letter—and OCR’s even more troubling 2014 guidance, which suggested that OCR’s imaginative interpretation of Title IX could trump the constitutional protection of due process promised to all students at public universities—can be withdrawn without going through the notice-and-comment process.

Given the Access Hollywood tape, it might well be politically impossible for a Trump administration to simply withdraw the 2011 and 2014 “guidance.” But another avenue for action exists, including the FIRE-orchestrated lawsuit filed by a former University of Virginia student and by Oklahoma Wesleyan University. The new administration could easily enter into settlement negotiations for the lawsuit and concede the inappropriateness of issuing new regulations on all colleges and universities outside the APA’s requirements.

If this doesn’t occur, Congress becomes all the more important. The two people to watch are Lamar Alexander and Oklahoma Republican James Lankford. The Oklahoma senator issued an encouraging statement the day after the election, noting that the Education Department had “used Dear Colleague letters and guidance documents to mandate policies for schools without adhering to legally required regulatory processes. It is extreme overreach at agencies like the Department of Education that the American people repudiated in this election. I will push our new Republican-led Washington to put a stop to this abuse and restore proper regulatory and guidance processes to the federal government.”

Related: How Title IX Became a Policy Bully

Accusers’ rights organizations seem to have recognized that, at the very least, the anti-due process agenda of the current OCR might be discontinued in the next administration. And so, as the Chronicle recently reported, they’ve ratcheted up pressure on colleges to maintain the current unfair procedures that the Ali/Lhamon-led OCR helped to establish.

Yet even the most extreme of the activist groups—Know Your IX—has conceded that colleges are obliged to provide “fair” processes. (The group’s founders, Alexandra Brodksy and Dana Bolger, have defined “fair” in Orwellian terms, but they nonetheless use the language.)

Early in her tenure, Russlynn Ali made clear that the new OCR would welcome Title IX complaints from accusers angered at their college having returned not-guilty findings, or simply not rendering a guilty finding quickly enough. The new OCR could make clear that given the manifest unfairness of most college disciplinary systems on sexual assault matters, it would welcome complaints from accused students, to give the federal government a chance to counteract the improper pressure to keep disciplinary systems unfair. The resolution of the pending Title IX complaint against Brandeis—in a case that was the subject of the piercing opinion by Judge Saylor—could provide a template.

Along these lines, resolution agreements from OCR should restore earlier principles (from the Bush II administration) that colleges aren’t obligated to reinvestigate claims where a criminal complaint has been filed; and that colleges aren’t obligated to investigate allegations that occur off campus.

Distractions

Over the past five years, only a handful of politicians have paid any attention to the issue of campus fairness; as Christina Hoff Sommers presciently noted, “due process has no lobby.” Scores of GOP legislators and governors, on the other hand, rose up as one against OCR guidance regarding bathroom policies for transgender school kids.

For advocates of campus due process, then, the great fear is this: given Republican priorities, the new administration will focus its OCR reform agenda on eliminating protections for transgender public school students—a move that will receive fierce political resistance—and therefore will decide not to address the campus due process issue at all.

Related: The Feds Now Run a Bureaucracy That Regulates Sex

Any comment on a Trump-led OCR has to address what was avoided. While OCR under Obama was disastrous for due process, the crusade always had a surreal element to it. Obama, after all, was formerly a constitutional law professor, and also someone who was willing to stand up for campus civil liberties (albeit only in the free speech context). Even as his administration eroded due process rights for accused students, there was always the chance that a President with Obama’s beliefs would recognize he had gone too far.

No chance would have existed for such a course correction under Hillary Clinton, had she been elected. (Full disclosure: I am a Democrat who donated to, and voted for, Barack Obama in 2008 and 2012. My only federal political donations in 2016 went to Jason Kander, who narrowly lost in the Missouri Senate race.) To the extent that Clinton had any consistent beliefs, they revolved around a fierce connection to gender-based identity politics. And there was no doubt as to how these beliefs would have translated on campus.

Clinton’s campaign began with an official policy toward campus sexual assault—that all accused students who could not prove mistaken identity were guilty since all campus accusers had a “right to be believed.” Even Obama’s OCR, as extreme as its approach toward campus due process had been, never adopted such a policy. Clinton withdrew the line only after she was asked how it would apply to her husband’s accusers, but there seems little doubt that she would not have granted the same degree of skepticism for students accused of sexual assault on campus.

It also seems likely that a Clinton OCR—perhaps with Lhamon staying on for a second stint in charge of the agency—would have more aggressively targeted campus free speech. The University of Montana “blueprint” (imposed by OCR and the Justice Department) supposedly was abandoned after a public outcry. But its basic principles were quietly extended to the University of New Mexico and could have formed a national template under four years of Clinton.

In a Clinton presidency, Title IX would have been used as a sword against fairness and due process. If nothing else happened last Tuesday night, that outcome appears to have been avoided.

Yale Defends Its Star Chamber Hearings

The Obama administration, acting through the Office of Civil Rights, has made a terrible mess out of sexual misconduct hearings on our campuses, but it did one good thing without thinking much about it: it targeted one university—Yale—for regular reports on how it dealt in sexual assault hearings.

The reports, released by Deputy Provost Stephanie Spangler, are bare-boned and hardly meant to be informative, but they have included enough information to demonstrate the fundamental unfairness of Yale’s procedures and the witch hunt atmosphere that has permeated the campus. Perhaps for this reason, OCR has avoided instituting a reporting requirement like Yale’s on any other institution.

Recently, Yale’s dubious policies came under higher-than-usual scrutiny, thanks to a perceptive Wall Street Journal op-ed from Jennifer Braceras—who correctly noted that the accused enjoyed far more rights under the notorious Star Chamber than they do in Yale’s sexual assault disciplinary tribunals. Jack Montague, Braceras noted, discovered first-hand just how unfair Yale’s procedures could be.

He had no right to direct cross-examination, no right to have a lawyer fully participate in the process, and received a judgment from a “trained” panel that seemed predisposed to find guilt. He also was charged in seeming violation of Yale guidelines, which (as Spangler explained at the time) did not apply to cases like Montague’s, where the accuser declined to file a complaint.

Braceras’ op-ed generated a response, from Yale professor David Post, an aquatic ecologist who chairs the University-Wide Committee on Sexual Misconduct (UWC). Post deemed Braceras’ comments an “affront” to him, noted that many Yale cases end with no punishments, and gushed about “Yale’s multilayer process,” which “allows parties to submit and respond to evidence, engage legal counsel, submit questions for a hearing panel to ask the other party and file an appeal to the university’s highest levels. Each complaint is investigated by an outside fact-finder.”

According to Professor Post, “Yale’s process is honest, fair, transparent and respects privacy.”

First of all, here’s a statement on the Montague lawsuit, offered to the Hartford Courant, by a Yale public relations staffer: “Yale always respects the privacy and confidentiality of all students involved in a disciplinary process. Yale’s procedures for addressing allegations of sexual misconduct are thorough and fair. Allegations are investigated by an impartial fact finder, heard by five trained members of the Yale community, and decided by the accused student’s dean.

Throughout the process, all parties have advisers, which can be legal counsel, and they can appeal a decision.” Previous Yale statements also had stressed the fact that not all accused students are found guilty (citing the same statistics as Post), in following the outlines laid out by Judge Furman’s opinion in the Columbia case. Apparently, no one told Post that the Second Circuit had overruled Furman.
The remarkable similarities between the earlier Yale publicity statement and Post’s letter—which ostensibly contains his own words, and reflects his own thinking, not that of a Yale public relations officer—raises some questions about the professor’s “honest[y].”

As to the other qualities of Yale’s procedures: I’m sure that Montague—like Patrick Witt before him—was surprised to discover Yale’s commitment to respecting “privacy.” Indeed, after Montague left the team, Yale’s Women’s Center released a statement “speculat[ing]” that “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.”

The claim of transparency also intrigues. This assertion was the major difference between Professor Post’s letter and the earlier statement from Yale’s p.r. office (which, wisely, made no mention of the concept). It’s not clear why Professor Post added the claim since Yale’s process is anything but transparent. It’s closed to the public. The university has refused to release the “training” all UWC members receive. And Yale makes no promise to share with the accused students all the evidence the purportedly independent “fact finder” uncovers.

As for the claim of Professor Post—and Yale’s spokesperson—that the university’s process is “fair”: even as last year’s protesters demanded a more “diverse” English fare, it seems that Orwell is alive and well on the New Haven campus.

The Attack on Heterosexual Sex on Campus

When spiked’s law editor Luke Gittos decided to write a book on ‘rape culture’ he must have known it was likely to cause him a lot of trouble. Gittos is a privileged, white, London-based, (possibly cis-gender) male lawyer who claims no experience of forced sex. His book could not be more of a challenge to the current zeitgeist.

Hence, there will be those who say his privileged, white maleness disqualifies him from speaking out on the issue of rape, and that this book, Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans, is a ‘mansplaining’ display of insensitive arrogance by someone with no sense of women’s experience. Others will probably be tempted to dismiss any man who writes a book challenging ‘rape culture’ as an attention-seeking controversialist intent on provoking feminist fury. The publisher should probably have issued a Twitterstorm alert.

But such attempts to dismiss the relevance of Gittos’s arguments would be mind-numbingly stupid. Because, despite his gender and background (neither of which are his fault), Gittos has produced a useful and intelligent analysis that clarifies and makes sense of an issue that has become very muddled.

Related: Feds Lurch Toward Due Process in a Campus Sex Case

Gittos’s tightly written polemic argues against the accepted view that we live in a society in which misogyny and everyday sexism have created a so-called rape culture, in which rape is pervasive, underreported and ignored. He does not believe that the police and the law courts are failing women by failing to convict rapists. On the contrary, Gittos argues that the obsession with a ‘culture of rape’ has seriously distorted our view of sexual violence, and that the expansion of laws to protect women is eroding areas of privacy and inviting state regulation of our most intimate affairs.

This is dangerous for us all – not just men who may find themselves dragged into court following a sexual encounter they believed was consensual. Gittos holds that the drive to prosecute (and improve conviction rates against) more and more people has dangerous 71157100127170limplications for the fundamental principles of justice, and for basic freedoms. The situation as things stand, he maintains, does no one any favours: it undermines society’s ability to deal adequately with extreme assault, and it undermines our ability to live intimately with one another.

At a time when we are so often encouraged to understand rape from the perspective of the victim, it helps to understand the issue from the perspective of a lawyer who is able to compare the treatment of sexual assault to the treatment of other crimes. Take, for example, the discussion of the conviction rate for rape, which everyone seems to agree is ‘too low’ and in need of ‘improvement’. Gittos demonstrates that the conviction rate for rape is not so different to other crimes, and reminds us that a crucial principle of our judicial system is the ‘burden of proof’. He examines the absurdity of setting what are in effect performance targets for rape convictions. According to this bizarre logic, what matters is not whether a man is guilty or innocent, but whether a quota of rapists are convicted as an expression of society’s abhorrence of the crime.

Related: The Washington Post Joins the Rape Culture Crusade

Gittos examines the claims that rape is underreported, and that women do not report rapes because they are cynical, intimidated, ignorant of process or even unaware that they have been raped. Gittos makes a convincing case that the huge gap between the number of rapes and sexual assaults as reported in surveys and studies, and incidents reported to the police, is due to women preferring to deal with the matter informally, especially with regard to low-level sexual assault. Many women opt to treat these episodes as ‘a private/family matter and not police business’ (19 per cent in one 2012 study) or see them as ‘too trivial and not worth reporting’ (11 per cent). The conscious, deliberate choice not to involve the authorities is often seen as a problem, but Gittos challenges this. In effect, he is asking, do we respect women’s ability to decide these matters for themselves, or not?

People who insist that society is now peculiarly accepting of rape are simply deluded

The expansion of the definition of rape has been rapid and, therefore, deeply confusing. Nevertheless, it must be said that people who insist that society is now peculiarly accepting of rape are simply deluded.

Rape needs to mean something specific. ‘Unwanted sex’ or ‘unenjoyable sex’, is completely different to ‘non-consensual sex’. We need to understand the difference if we are going to have a sensible discussion about rape. You may agree to have sex that you don’t passionately desire for all kinds of reasons. As Bertrand Russell famously observed in his 1929 book Marriage and Morals, ‘the total amount of undesired sex endured by women is probably greater in marriage than in prostitution’. This was because, he explained, marriage for women at that time was the commonest form of livelihood. Unwanted sex was the price women paid for their economic and social position. Unwanted, unwilling sex is not rape – unless we broaden the definition of rape until it is so wide that it is absolutely meaningless. That is what Gittos thinks we are in danger of doing.

Of course, it is possible to draw the definition of rape too narrowly. The mothers of today’s students (who are encouraged to attend sexual-consent classes) may remember, as I do, protesting to make rape in marriage a crime. Not so long ago, the courts accepted that marriage gave conjugal rights to a spouse and that since a spouse could not withdraw consent, there could be no rape. In fact, it wasn’t until 1991 that the marital-rape exemption was finally abolished. So try telling the generation of women who campaigned to make rape in marriage a crime that today’s culture is uniquely ‘rapey’ because a song suggests that even ‘good girls’ really ‘want it’.

Related: Brown U. Messes Up Sex Assault Case, Accused Prevails

Clearly no one wants to return to the Bad Old Days, although many of us will have sympathy with the legal commission advising government on rape law in the 1980s when it said that ‘the criminal law should keep out of the marital relationships between cohabiting partners – especially the marriage bed’.

Gittos is right to insist that it is important to understand what rape is and how it is distinct from the intimacy of sex, which is, and must remain, a private matter. But what is it about rape that makes it a crime different to other forms of assault? After all, Susan Brownmiller, one of the most influential 1970s feminist thinkers on rape, denied that it was really about sex at – it was ‘a crime not of lust but of violence and power’.

My only problem with Gittos’ book is the title, Why Rape Culture is a Dangerous Myth. I do believe we live in what could be called a ‘rape culture’. We live in a culture where rape is a constant reference point for intimate relations, regardless of the extent of intentional, non-consensual sex. That’s because in today’s culture, ‘rape’ is so broadly defined as to encompass almost everything: songs about picking up women are vilified for encouraging rape; an actor can decide a years-old sexual episode she experienced was in fact ‘rape’; men are warned not to assume that a woman who says ‘yes’ is competent to consent – especially if, heaven forbid, she’s under the influence of alcohol… We are fast approaching a culture in which almost all heterosexual sex is seen as rape.

And that’s why Gittos’s intervention is so vital. He is intent on protecting the sphere of intimacy from those who see rape everywhere

This piece is reprinted with permission from Spiked.com. Ann Furedi is writing in a personal capacity.

Feds Lurch Toward Due Process in a Campus Sex Case

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

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

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

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

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

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

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

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

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

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

Killer Clowns on Campus? A Sign of Moral Panic

Sociologists define a moral panic as a feeling of fear shared by a large number of people that some evil threatens the well-being of society.  The recent clown panic that has emerged from the belief that that murderous clowns have surfaced throughout the country to terrorize schools –including college campuses — says more about the state of our society and our own feelings of vulnerability, than it does about the preposterous possibility that covens of killer clowns are on a rampage to kidnap and kill.

“Inside Higher Ed” has reported that creepy-looking clowns are now stalking “dozens” of college campuses. Students have reported seeing clowns at the Universities of Connecticut, Iowa, Massachusetts, Miami, Missouri, New Hampshire and Texas at Austin. Students have also claimed to have seen clowns at Bloomsburg, Butler, Sacred Heart, Merrimack, Texas A & M and Syracuse as well as Western Carolina, Mississippi and York Colleges.

When police received concerns about clowns at Auburn, officials sent a campus-wide email telling students to resist the urge to track down the clowns on their own and avoid wearing clown attire. At Penn State — where the panic surrounding the sexual abuse of minors by Jerry Sandusky continues to haunt the campus — university police reported that between 500 to 1,000 students formed a mob that was “screaming and running through the streets” on campus in an attempt to “hunt the clown down.”

If the World Seems Precarious

Moral panics emerge when rapid social change threatens the status quo and society’s norms and values are changing so quickly that people cannot easily adjust to new societal demands. In the face of such precipitous social change, people begin to feel a sense of anomie—or normlessness as Durkheim called it — as the norms and values of the past no longer have meaning, and the world becomes a precarious place.

Anomie describes societies like our own that are characterized by disintegration and deregulation. It emerges when there is a generalized perception of a breakdown in social fabric—an erosion of moral standards, and a decline in leadership and legitimacy. Undifferentiated fears surface and vague feelings of unease develop resulting in confusion, distrust, and suspicions about the motivations and behaviors of others.

Throughout history, America has had its share of moral panics—and all of them can be understood as struggles for cultural power in the midst of rapid social change. The Salem witch trials in 1692 followed continued fears about a smallpox epidemic in the colony and coalesced around fears of attacks from neighboring Native American tribes.

There was also hostility related to emerging class differences and a rivalry with a more affluent neighboring community. Residents’ suspicions and fears of outsiders—fears of otherness—combined with a changing culture surrounding the role of women, fueling the belief that Satan was operating in Salem by endowing witches with demonic power to act against the Puritans.   It is noteworthy that the first woman accused of witchcraft in the Massachusetts colony was Tituba, the ultimate outsider, a Caribbean slave who was executed for “bewitching” young women into service for Satan.

Clowns in White Vans

The 1980s clown panic emerged at a time that is very similar to our current era of rapid social change and threats from external enemies.  While today we have fears of ISIS, domestic terrorism, school shootings, urban rioting, racial divisions, and an extremely contentious presidential election season, the 1980s was similarly filled with fears of AIDS, the cocaine panic over “crack babies,” the Iranian threats, and the frightening assassination attempts against President Reagan, St. Pope John Paul II, and Anwar Sadat.  And, although Reagan and the Pope survived the attempt, Sadat was killed, creating further fears of violent extremism from the Middle East.

Today’s clown panic on college campuses parallels yet another moral panic on campus surrounding fears of campus assault.  Women are told when they arrive on campus that they have a one in four chance of being sexually assaulted.  Undeterred by data debunking the notion that college campuses have become what Senator Kirsten Gillibrand (D-NY) has called havens for rape and sexual assault, the Obama administration is now investigating nearly 100 colleges and universities for possible alleged sexual violence.  Suggesting that “women are at a great risk of sexual assault as soon as they step onto a college campus,” Senator Gillibrand introduced the Campus Accountability and Safety Act, and all colleges and universities receiving federal aid have had to implement mandatory sexual abuse prevention training for all campus employees.

Related: Criminal Law and the Moral Panic on Campus Rape

The only problem is that much of what has been reported about the “epidemic of campus sexual assault” is itself a myth.  A study last year by the Bureau of Justice Statistics revealed that the rate of rape and other sexual assaults over the past two decades was 1.2 times higher for non-students of college age than for students on college campuses.  In fact, campus sexual assault has actually declined from 9.2 per 1,000 college students in 1997 to 4.4 per 1,000 in 2013.  Far from being a site of violence, the study found that female college students are safer from sexual assault while in college than at any other time in their lives.

But data mean little in the middle of a moral panic.  Driven by irrational fears, panics like these emerge quickly, garner much media attention, and then, disappear as quickly as they began.

Eventually, the creepy clown moral panic and the panicked response to the belief that college campuses are a site of rape and violence will pass as we begin to substitute new fears. In the meantime, it is helpful to look closely at them as an opportunity to begin to understand what we are really afraid of—the very real fears that we are likely too afraid to even discuss.

The heightened levels of fear that we are seeing on college campuses is best understood when viewed through the lens provided by NYU Social Psychology Professor Jonathan Haidt in an interview here.   Haidt believes that college campuses have been places fraught with fear for students.  Part of this is due to the dramatic changes in child-rearing that happened in America in the 1980s: “With the rise in crime amplified by the rise of cable TV, we saw much more protective fearful parenting.” Parental fears over the previous panics surrounding child abductions, crack houses, crack babies, gang violence, and day care abuse by mythic satanic day-care workers have changed the ways in which parents protect their children.

Haidt believes that “Children have been raised very differently —protected as fragile. The key psychological idea which should be mentioned in everything written about this is Nassim Taleb’s concept of antifragility.”  This theory states that “children are anti-fragile. Bone is anti-fragile. If you treat it gently, it will get brittle and break.  Bone needs to get banged around to toughen up.  And so do children.” Haidt believes we have treated our children as “too fragile” – not allowing them to ever suffer any discomfort in their lives.  When they reach college, they can be terrified of everything.

Toughening up our college age children will take a generation.  But, in the meantime, it is helpful to look closely at these kinds of panics as an opportunity to begin to understand what we are really afraid of—the very real fears that we are likely too afraid to even talk about.

Brown U. Messes Up Sex Assault Case, Accused Prevails

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

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

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

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

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

Related: Don’t Bother with Due Process

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

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

Anything Proves Sexual Assault

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

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

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

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

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

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

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

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

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

Is the University of Tennessee Safe for Women?

At the University of Tennessee, Knoxville, fall is the time for students to worry about sexual assault. At least that’s the message in the current issue of the Chronicle of Higher Education. As reporter Robin Wilson tells it, the beginning of the school year is a dangerous “red zone,” when predatory campus males are most likely to attack female students. The article features a long red carpet on a campus walkway, which students sign as a promise to be alert to sexual assault.

The article strikes an apprehensive, near-paranoid tone: “Female students come here with a list of warnings: Never walk alone. Carry Mace. Don’t take Uber, because your driver could kidnap you. Keep the number of the campus police chief in your cell phone. With heightened national attention to campus safety, the most common advice that young women say they’ve heard from relatives and friends isn’t “Have fun” or “Do your best.” It’s “Be careful.”

The threat of rape seems inescapable: “With all the admonitions to stay safe, female students here describe a constant low-grade state of fear. They talk about almost never being on their own and developing secret hand motions to signal to friends when they’re uncomfortable somewhere and want to leave. Many parents who started tracking their daughters’ cell phones in high school still do.”

Constant fear and secret hand signals seem excessive to the actual sexual threat on campus. During 2015, 38 sexual misconduct complaints were filed on campus, up from 13 in 2011. The 38 last year may include sexual assault (the different categories are not separated out), but they also cover a wide array of misconduct, from sexual harassment to “sexual exploitation,” which might extend to peeping Toms, misunderstandings, seduction, or next-day regrets.

Also,the numbers include misconduct offenses by student organizations. In all, 8 complaints were filed with Knoxville Police and 3 with the campus cops, low numbers for a student population of 28,000.

A great many campuses contain groups that consider males inherently dangerous and toxic. Tennessee-Knoxville seems to be one of them.

The Feds Now Run a Bureaucracy That Regulates Sex

Writing in the California Law Review, Harvard Law School professors Jeannie Suk and Jacob Gersen note, “Today we have an elaborate and growing federal bureaucratic structure that in effect regulates sex.” This is largely the result of pressure from the Education Department’s Office for Civil Rights, where I used to work. It has told colleges like the University of Montana and University of New Mexico to classify all “unwelcome” sexual conduct or speech as “sexual harassment.” It did so even though this violates free speech, and even though courts have never defined sexual harassment that broadly.

The Obama administration expects colleges to massively meddle in students’ romantic lives, even off campus. It has told colleges to investigate students for sexual harassment or assault even when their allegedly victimized partner does not want any investigation. It instructed the University of Virginia to investigate further even when the accused has already admitted guilt (even though that could needlessly force a victim to relive her trauma) and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.” It perversely faulted Michigan State for not investigating a false complaint fast enough, even though the complainant didn’t want a college investigation at all, and it suggested the University might have to offer the false accuser academic “remedies.

By pressuring colleges to vastly increase their regulation of students’ sex lives, and demanding investigations students don’t want, the Obama Education Department has fueled vast expansions of college bureaucracies. There are now thousands of staffers responsible for enforcing Title IX sexual conduct mandates. As Suk & Gersen note, “the bureaucracy dedicated to that regulation of sex is growing,” and a recently-formed association of Title IX officials boasts 1,400 members.

Reason magazine’s Elizabeth Nolan Brown says, “The root of the confusion lies in federal government guidance. For instance, here’s a definition the White House offered universities in a model survey on campus sexual violence:

Sexual violence refers to a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; [or] unwanted touching…. These behaviors could be initiated by someone known or unknown to the recipient, including someone they are in a relationship with.”

If you expect colleges to police “remarks about physical appearance” made during a relationship with an ex-partner, and treat it as “violence,” you will end up with vastly more investigations (and need a vastly larger and costlier administrative apparatus).

Legislation may further fuel the growth of the sex bureaucracy. Congresswoman Nancy Pelosi (D-CA), the former (and possibly future) House Speaker, has advocated passing laws requiring college students across the country to show “affirmative consent” before engaging in sex or intimate touching, and requiring colleges to discipline those who don’t. This term “affirmative consent” is usually not well-defined (in terms of exactly what intimate activities it applies to, and what is needed to show the required “agreement”). So when the co-sponsor of California’s 2014 “affirmative consent” law was asked how an innocent person could prove “affirmative” consent, she said, “Your guess is as good as mine.”  Yet California state legislators expect colleges to enforce such rules for them (a number of colleges are now being sued by expelled students).

As Gersen and Suk note, very little actual consent qualifies as “affirmative consent” under the extremely narrow definition of “consent” contained in many campus “affirmative consent” policies. For example, many such policies require that the consent be “enthusiastic”: “Very rapidly,” point out Suk and Gersen, “the consent line shifted again in many places to make enthusiasm a requirement of consent itself—anything less than enthusiasm is sexual assault.” The claim is that consent is not meaningful unless it is “verbal,” “enthusiastic,” “sober,” “informed,” “honest,” etc.

Even if you liked being kissed, a college may deem it sexual assault if there was no explicit discussion beforehand between you and your partner to establish the existence of “affirmative consent,” as Ramesh Ponnuru has noted at Bloomberg News.

As supporters of “affirmative consent” legislation acknowledge, such laws require regulated entities to enforce “sweeping” changes on the government’s behalf. Ezra Klein, a leading supporter of California’s “affirmative consent” law, says it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, since

It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.

The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it…. Men need to feel a cold spike of fear when they begin a sexual encounter…. To work, “Yes Means Yes” needs to create a world where men are afraid.

There is also talk of enacting “affirmative consent” as a national requirement for not just students but all citizens. Historically, the federal government could not pass a nationwide law mandating “affirmative consent,” even assuming states could require it in their own borders. That’s because the Supreme Court’s 5-to-4 ruling in United States v. Morrison, 529 U.S. 598 (2000) had ruled that it is the function of states – not the federal government – to define and punish intrastate crimes like sexual assault. The Supreme Court’s Morrison ruling struck down Subtitle II-C of the Violence Against Women Act, which authorized federal lawsuits over sexual assault. The Court ruled that Congress lacked the power to do that under the Constitution’s commerce clause and section 5 of the Fourteenth Amendment.

But the crucial fifth vote, in that case, was provided by conservative Justice Antonin Scalia, who died in 2016.  He will likely be replaced by a progressive Justice who supports broad federal power over intrastate activities. That may encourage a more liberal Congress to pass national “affirmative consent” legislation covering everyone.

Students have often raised practical concerns about the workability of affirmative consent policies.  The New York Times quotes the developer of California’s “affirmative consent” curriculum, Ms. Zaloom, saying that to comply, you have to say “‘yes’ every 10 minutes” during a sexual encounter, resulting in constant awkward communication:

 “‘What does that mean — you have to say “yes” every 10 minutes?’ asked Aidan Ryan. . .

“‘Pretty much,’ Ms. Zaloom answered.”

The Times quoted a female student calling it “really awkward and bizarre”:

“The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: ‘Can I touch you there?’ Too clinical. ‘Do you want to do this?’ Too tentative. ‘Do you like that?’ Not direct enough.

“‘They’re all really awkward and bizarre,’ one girl said.”

One supporter of “affirmative consent” legislation says it requires “state-mandated dirty talk” before intimate touching. Professors Suk and Gersen (and others) have argued that requiring students to do this sort of thing raises serious constitutional privacy issues under Supreme Court decisions like Lawrence v. Texas (2003), which struck down Texas’s sodomy law as a violation of privacy rights.

“Affirmative consent” laws have been opposed by civil liberties groups like the Foundation for Individual Rights in Education, and former ACLU Board member Wendy Kaminer. They also have been criticized by columnists like Bloomberg News’ Megan McArdle, Newsday’s Cathy Young, The New Republic’s Batya Ungar-Sargon, New York Magazine’s Jonathan Chait, and Amy Alkon, McArdle notes that such legislation “seems to criminalize most sexual encounters that most people have ever had, which (I hear) don’t usually involve multistep verbal contracts.” Affirmative-consent legislation has also been opposed by the editorial boards of newspapers such as the Los Angeles Times, Orange County Register, and New York Daily News.

Rare Court Ruling for an Accused Campus Male

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

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

No Title IX Disparate Impact

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

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

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

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

Repudiating Furman

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

The Impact of the Decision

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

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

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

How the Feds Use Orwell to Apply Title IX

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

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

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

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

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

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

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

Title IX chart

Legal requirement to investigate:

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

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.

Alleging Sexual Assault When an Affair Ends

Have you noticed how many of the campus accusations of rape/sexual misconduct are reported after the 3rd, 4th, or 5th sexual encounter? It’s possible, of course that rape-minded males on campus like to let a relationship proceed a while before forcing themselves on a woman. Or it could be that something happens in the midst of a sexual relationship (or a series of hook-ups) that sours the female on a sexual partner. For instance, she may see him with another woman, or she may run into a female from the campus gender lobby and learn that all men are pigs and all disappointing sex can be counted as rape. After all, the famous Catharine MacKinnon said as much:

“Politically, I call it rape whenever a woman has sex and feels violated.” (Feminism Unmodified, 1987). Of course, she may feel violated by his rudeness, promiscuity or failure to call the next day. Whatever. It’s all rape. Or so says a leading voice in the feminist canon.

This meditation is prompted by a victory of sorts by one of the railroaded males. “John Doe,” a  student at James Madison University, was cleared of sexual misconduct,  but convicted on appeal and expelled under a blizzard of Kafkaesque procedures (no notice of the meeting, no names of judges provided, no copy of the new charges—though he was allowed to read it and take notes). Elizabeth K. Wilson, an Obama-appointed federal judge, ruled that Doe’s suit alleging lack of due process can proceed. Accounts of the case are provided by Robby Soave of Reason (“The accusation is among the more dubious ones I‘ve ever read about.”) and Ashe Schow of the Washington Examiner.

On appeal, the accuser was supported by statements from her residential advisor and her Title IX representative. Both say that the first of five sexual encounters between accuser and accused was not consensual. (The accuser’s roommate said it was consensual). The pair exchanged friendly messages after the first encounter, and she took the initiative in other sexual meetings. After the third, however, she showed up at his dorm carrying her pillow, but left when she saw another woman sitting on his bed. Hmmm. Could this have been a MacKinnonian violation?

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.

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

On October 15, The New York Times published a balanced news story that inadvertently revealed the stupidity of “Yes Means Yes” policies. Those policies redefine a great deal of consensual sex and touching as “sexual assault,” and effectively require college students to engage in “state-mandated dirty talk” during sexual encounters (as one supporter of “Yes Means Yes” policies gloated). That potentially violates the Constitution, and such policies have led to costly lawsuits against colleges that have such policies.

By printing ideologically inconvenient truths, the Times allowed the stupidity of “Yes Means Yes” policies to shine through, rather than covering up their stupidity. This was remarkable for The Times, which usually can’t cover social issues or discuss the failures of big government without injecting a doctrinaire left-wing slant. It quotes the developer of the “Yes Means Yes” curriculum admitting that under “Yes Means Yes,” “you have to say ‘yes’ every 10 minutes” during a sexual encounter to avoid sexual assault charges, resulting in constant awkward communication:

What does that mean — you have to say ‘yes’ every 10 minutes?” asked Aidan Ryan, 16, who sat near the front of the room.

“Pretty much,” Ms. Zaloom answered.

It quotes a female student calling it “really awkward and bizarre”:

The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: “Can I touch you there?” Too clinical. “Do you want to do this?” Too tentative. “Do you like that?” Not direct enough.

“They’re all really awkward and bizarre,” one girl said.

This illustrates the complete unworkability of “affirmative consent” proposals like the American Law Institute’s draft sexual assault definition in its proposed revision of the Model Penal Code. That provision, modeled on “Yes Means Yes” policies, seeks to criminalize non-violent sex and romantic touching in society, (even if it was welcomed by the participants) unless there was “affirmative” consent in advance.

As Megan McArdle noted in The Atlantic, under that criminalization proposal, a great deal of harmless touching could well be deemed a crime, including this hypothetical provided by lawyers and law professors: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

Unfortunately, there is one shortcoming in the New York Times story: it repeats the erroneous idea spread by the San Francisco Chronicle that all drunk consensual sex is already legally rape on campus under California’s “Yes Means Yes” law regulating campus sex. In reality, as defense lawyer Scott Greenfield, legal commentator Walter Olson, and I have all explained earlier, that law only bans incapacitated sex, not all drunk sex.  But The Times writes:

The “no means no” mantra of a generation ago is quickly being eclipsed by “yes mean yes” as more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing, or other sexual activity. With Gov. Jerry Brown’s signature on a bill this month, California became the first state to require that all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.

Although California’s “affirmative consent” law does not ban all drunk sex, some campus “affirmative-consent” policies do, invading the privacy of students (there is no logical reason why a married couple should not be able to have a glass of wine before sex). But California’s law does heavily intrude into people’s private lives, and create a climate of fear, as some of its most outspoken supporters readily acknowledge.

Ezra Klein is the editor-in-chief of the liberal publication Vox, and a leading supporter of California’s “affirmative consent” law. He says that it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, and “create a world where men are afraid,” which he justifies by saying that “men need to feel a cold spike of fear when they begin a sexual encounter.”  He writes that California’s “Yes Means Yes” law…

“…tries to change, through brute legislative force, the most private and intimate of adult acts.It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test. The ‘Yes Means Yes’ law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value…. If the ‘Yes Means Yes’ law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it….  Men need to feel a cold spike of fear when they begin a sexual encounter…. To work, ‘Yes Means Yes’ needs to create a world where men are afraid.”

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.

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