Tag Archives: constitutional rights

DePaul—The Worst University for Free Speech?

In February, the Foundation for Individual Rights in Education (FIRE) named DePaul University as one of the worst 10 universities for the protection of free speech. It was not the first time that DePaul has been on FIRE’s radar.  Most recently DePaul University was in the news for actions which have blocked conservative speakers and limited the ability of the College Republicans and the conservative student group Young Americans for Freedom (YAF) to get their message out to the DePaul campus.

No Milo, No Shapiro

Over the summer DePaul denied permission for the conservative students to host a talk by Milo Yiannopoulos, the controversial Breitbart editor whose talk the previous spring at DePaul had been closed down by protesters. Permission to invite Ben Shapiro to give a talk in the fall was also denied, in this case, because of fears of disruptive protests.

At the start of the school year, the school administration required the DePaul Socialists to spend about $360 for security personnel because it featured a talk about Marxism. According to the administrators, the topic was controversial. A request to put up a poster advertising the College Republicans featuring the slogan Unborn Lives Matter was denied permission by the university which claimed it was an attack on the Black Lives Matter movement. In November at a talk by Christina Sommers, the conservative students arranged for Shapiro to attempt to join Sommers at the event. When he was blocked by campus police from joining the event, there was a prearranged walk out and reassembly at a nearby off- campus venue where Shapiro could be heard.

Fear of Chalkings

The latest round of conflicts started in April 2016, when conservative DePaul students chalked pro-Trump slogans around campus, including “Build the Wall,” “Blue Lives Matter,” “Stand with Israel,” “Abortion is Murder” and “Trump 16.” The following morning the chalkings had all been cleaned off, and the administration banned further chalkings on the grounds that they could threaten DePaul’s status as a tax-exempt 501 (3C) institution. In response, the conservative students arranged an on-campus talk by the Breitbart writer Milo Yiannopoulos that was ended by rowdy protesters who wrested away his microphone and refused to let the event continue.

Administrators had forced the conservative students to pay a considerable fee for security. As the event unfolded, not only did the DePaul security not intervene to halt the disruption, but the university administration instructed police not to interfere. So conservative students had been forced to pay a lot of money for a security force that in essence participated in the cancellation of the event.

The protesting students used the social media response as the central point of their protest over the president’s handling of the issue. First, as reported by the school newspaper, he was widely criticized at a meeting with angry students. Later, at a meeting with faculty, he was viciously assailed by a group of activist professors, many of whom called for him to resign. Somehow, in the space of a few days, the student disrupters had gone from aggressors to victims and the conservative students had gone from victims to victimizers.

‘Too Conservative’

These events have not occurred in a vacuum. I recently retired from DePaul after 27 years, and I can say without hesitation that DePaul has a nasty habit of suppressing views which are considered “too conservative.” The university president disingenuously says that DePaul only forbids speech that is intended to wound.

There is an activist core of faculty and administrators who believe that the purpose of education is to instill a set of liberal talking points in its students. This is done through its hiring practices, both academic and administrative, its curriculum development, its regulation of student groups, and when pushed, through the outright suppression of contrary views.

The university president is quoted above in the school newspaper saying “As we experienced last spring, it’s not difficult to agree that there is a difference between a thoughtful discussion about immigration and a profane remark about Mexicans scrawled in the quad, or between a panel on racial climate and a noose — a powerful symbol of violence and hatred — outside a residence hall. In both recent cases, the first, we encourage; the second, we abhor.” With all due respect, this quote is a perfect example of a straw man argument. No group was asking permission to chalk up the sidewalk with bigoted slogans or place nooses in residence halls. What has been banned is Ben Shapiro who expresses conservative positions and a poster that borrowed its phrasing from the slogan “Black Lives Matter” to express opposition to abortion.

The recent events didn’t happen in a vacuum. DePaul has a long history of using its resources to promote one-sided positions on gun control, the Iraq War, American foreign policy, the Arab/Israeli conflict, gay rights, immigration, crime and police accountability. At times it has shown hostility towards students and faculty who run afoul of the prevailing campus orthodoxies. What has made DePaul stand out is there is no pretense of objectivity. There is an influential body of faculty and administrators who believe the core mission of the university is to promote what could be summed up as “The Progressive Agenda.” While they claim to be promoting dialogue on issues such as race and gender, the easy use of terms such as racist, homophobic, transphobic, Islamophobic, sexist, and ableist guarantee that there will never be an honest discussion of such issues.

DePaul’s free speech controversies over the years cannot be extracted from the political climate that has been promulgated as part of its mission.

An Urban Mission

I started teaching at DePaul in 1987, and though initially I heard comments about an urban mission, the school seemed basically normal. This began to change in 1990 with the acceptance of a several million dollar Lilly Foundation grant to develop programs in multiculturalism. In the fall of 1990, a series of workshops were held, mostly around themes of identity.

In June 1994, then President of DePaul Jack Minogue authorized the creation of a large task force (The Multiculturalism Committee or MIC) made up of faculty, administrators, and students, to make recommendations on how DePaul could start to infuse multiculturalism into all of its activities. On February 7, 1995, Minogue sent out a memo to the entire university community with the report of the MIC and a statement pledging the university to work to implement its recommendations.

The recommendations began with a discussion of how to define multiculturalism including the reports working definition:

Multiculturalism is an approach and praxis that seeks to eliminate prejudice and bias of any type, conscious or unconscious, individual or institutional, which serves as a barrier to the survival and self-determination of individuals and communities. For example, a multicultural approach to scholarship and teaching is one which gives priority to the inclusion of those communities and cultures which have been historically disenfranchised, oppressed or excluded; seeks to equalize unequal power relations between groups, and strives to lessen the disparity between the privileged and those less privileged. Reaffirming their humanity and cultures as creators of knowledge and makers of history, these communities then redefine power relations and as such forge the transformation of knowing and place.

Uprooting Prejudice

The report describe the committee’s task as “not to impose a new orthodoxy, but to uproot the traditions of prejudice, exclusion, bias, racism, classism, ageism and homophobia, embedded in the academy as a whole and within our respective fields, in part by advancing an agenda that is by definition constant and critical.”

An extensive set of recommendations followed that segmented into General recommendations, faculty subcommittee recommendations, student subcommittee recommendations, and staff subcommittee recommendations. The various subcommittee recommendations were further segmented into very specific timelines for implementations. There were, for example, a total of 35 recommendations from the student subcommittee, 25 for the first year alone.

Among the first year recommendation for faculty was the proposal to enhance opportunities for faculty needing protection (i.e., women, racial ethnic and religious groups; non-heterosexuals and the physically disabled) to participate on committees with authority to affect change in the institution or to advance to positions of leadership on specific committees; and include for participation those perceived as aggressive and/or radical.

The student recommendations for the first year included the demand that the student newspaper be used as a forum for making the DePaul community aware of issues facing students regarding multiculturalism, increase student aid and scholarship money for minority students, and add a question on the instructor/class evaluation form to inquire regarding the sensitivity of the instructor and the extent to which the course attempts to address multiculturalism. Among the 25 recommendations, the most Orwellian were to “offer financial incentives to the diverse populations through a mandatory, universal, ongoing and continuous program of training workshops and retreats which are sensitive to the different levels of awareness of university employees (faculty, staff, and students) and provide an opportunity for growth and development.

25 Recommendations

In his memo, essentially accepting the recommendations, President Minogue said, “The university is deeply indebted to the members and leadership of the Implementation Committee for their fine and timely work on bringing previous initiatives and work on multiculturalism and diversity within the DePaul community, as well as recommending new initiatives.” The faculty as a whole either approved of the recommendations or basically ignored them. A charitable assessment is that they were simply a way forward to make the university a more tolerant and inclusive place. A more cynical and probably mere realistic view is that the report was a recipe for dividing up the benefits that could be extorted from the university and distributed among a collection of “underrepresented” subgroups claiming various degrees of victim status.

To be fair, not everyone liked the recommendations. A guest column by two students in the student newspaper in March 1996 asked, “Is it just us or have others noticed DePaul’s secret agenda to divide us, masked as multiculturalism?” Their complaint was summed up by the statement “Multiculturalism is what an ideal world would be; tolerant of all people. DePaul’s version is exactly the opposite. It divides students into separate groups and magnifies their differences.”

The MIC report is a blueprint for how the culture of political correctness would come to dominate the handling of conflicts that involved questions about free speech. Almost all the PC insanity that has exploded on college campuses in the past couple of years-safe spaces, micro-aggressions, speech codes, diversity bureaucrats, freshman orientation indoctrination, diversity training- can be found in embryonic form in this document. Almost immediately, clashes with students over free speech started occurring.

In the spring of 1995, the school newspaper the DePaulia reported on an arrest at a dance sponsored by Housecall, a DePaul student organization sponsored by Multicultural Student Affairs that published a quarterly magazine centered on African American issues.  According to the police, the dance had been advertised on at least 16 area campuses as a “booty call.” The trouble started when two groups got into a conflict. Police were called, and two people were arrested. The DePaulia story quoted the police report that said when police arrived they “learned there were several fights and the crowd refused to leave.” Once again relying on the police report, the DePaulia article stated “after the reporting officers began to disperse the crowd, another fight ensued, and officers ‘observed several M/Bs [male blacks] throwing chairs and trash into the crowd.’”

In reaction to the story in the DePaulia, the Association of Black Students (ABS) demanded an apology from the student newspaper. The next edition of the paper covered the black students’ version of the event and published an editorial in which the newspaper stated, “We empathize with the people who were offended or felt that the article damaged the reputation of Housecall, as this was not our intent.” This response by the DePaulia did not satisfy some students who took it upon themselves to destroy the entire press run of the newspaper.

Punishing the School Newspaper

A letter that appeared in the paper the following week reported that the President of the university, Jack Minogue, stood and watched them do it and did nothing to stop them. The ABS then staged a sit-in in the DePaulia office. In a reversal of reality, the administration temporarily suspended publication of the newspaper, blamed the event on the staff of the DePaulia, punished the paper by forcing the staff to abandon their office in Lincoln Park and make do with facilities at the inconveniently located downtown campus, accept a faculty advisor for the following year, submit to diversity training and agree to publish an issue entirely devoted to diversity. The ABS students were given amnesty for their actions, letters were sent to faculty asking them to forgive any missed work by the sit-in participants and an administrative position was created for a director of diversity with a salary of around $70,000 per year.

In the aftermath of these events, there were numerous columns and editorials in the local newspapers criticizing DePaul for refusing to stand up for the freedom of the press. At DePaul, such criticism was muted, and for many who are still around, it is pointed to as a great step forward in the school’s mission of promoting inclusivity and social justice.

Over the next few years, a new liberal studies program included a menu of freshman seminars, a sophomore course in multiculturalism, a junior year experiential learning requirement and a senior year capstone course in the student’s major that would weave together the various threads of the program. Many of the first-year courses had themes of social justice. Of the first twenty freshman seminars in the program, I counted thirteen that were related to themes of race, gender or some other form of oppression

I volunteered to be on a committee that set guidelines and referred course proposals for the sophomore seminar in multiculturalism. In an email to the dean offering my services I told him I was concerned that critics of multiculturalism such as Shelby Steele and Christina Sommers would not be considered for the classes. I was told that my services would not be needed. At the time I was chair of the math department, and as such, I attended the monthly meeting of chairs and program directors run by the dean. In a discussion of how we award transfer credits, I asked what type of course would be accepted as transfer credit for the sophomore seminar. The dean exploded and screamed at me “you’re the chair of the committee, you decide.” In retrospect, I should have simply immediately walked out; but I sat there, and the meeting proceeded without getting an answer to my question. The point was made that questioning the appropriateness of the school’s social justice agenda would not be taken kindly.

The political climate at DePaul would be on full display following the events of 9/11. In the wake of the attacks on the Twin Towers, the Pentagon and United 93, the DePaul administration reacted by sending a series of emails to the entire DePaul community warning about blaming Muslims for the attacks. In language that included reference to the internment of the Japanese after Pearl Harbor, it reserved its concern for the possibility that someone might make an insulting remark to one of the DePaul students of Arab background.

On 9/13, two days after the destruction of the Trade Center, the political science department held a forum that advertised itself as getting to the deeper meaning of the events. What actually occurred at the forum was one faculty member after another getting up to denounce American foreign policy as the cause of the attacks. The forum was attended by a large crowd including many of the college’s administrators who applauded loudly as the newly appointed visiting professor of political science, Norman Finkelstein, said that “difficult as it was, it was important to empathize with the hijackers” and “Americans care only about their consumer products.” I eventually stood up and yelled “God Bless America, Goddamn DePaul” and walked out.

Three years later, at a student activity fair at the start of the school year, an adjunct professor at the school for New Learning, Tom Klocek, got into an argument with a group of students from the Students for Justice in Palestine (SJP). They were handing out leaflets claiming that Rachel Corrie had been deliberately murdered by an Israeli bulldozer when she lay down in front of it to prevent it from destroying tunnels used to smuggle terrorists into Israel. To put the event in context, one week before this event, there had been several horrifying terrorist attacks including the slaughter of 350 school children in Beslan, the blowing up of two Russian airplanes in midflight and a bomb placed on the Moscow subway. In response, El Arabiya published a statement decrying Muslim violence against others that included the widely quoted statement “that while not all Muslims are terrorists, it is extremely painful that almost all terrorists are Muslim.”

Upon encountering the SJP leaflet, Klocek got into an argument with the students about who was responsible for the violence in Israel. In response to the students comparing actions of the IDF to those of Nazi Germany, Klocek quoted the comment from Al Arabiya. Further arguing ensued, Student Affairs was alerted, and Tom made a gesture of flicking his thumb under his chin and left. The students complained that their ethnicity and religion had been insulted and Tom was suspended with pay for the rest of the quarter and a letter was sent to the DePaul community mentioning that there had been a couple of incidents of DePaul not living up to its values. I wondered what that was about until an article was published in the DePaulia describing the incident and its aftermath. A week later the dean of the School for New Learning, published a letter in the DePaulia apologizing to the students for the incident.

One year later the DePaul Cultural Center, an entity created as part of the response to the MIC recommendations, sponsored a two-day event that featured Ward Churchill lecturing to students about diversity. The DePaul Conservative Alliance (DCA) was upset about the school spending a good deal of money to bring in Churchill for an official DePaul administratively sponsored activity to educate students. They confronted the director of the center rather aggressively about their choice of speaker. They also got a letter from the governor of Colorado suggesting that Ward Churchill was not an appropriate person for the school to sponsor. The DePaul Conservative Alliance put up posters with some of Churchill’s quotes, and they were removed by Student Affairs who claimed that they violated a school policy against propaganda (no such policy ever existed). The DCA was banned from the workshop with Churchill.

In the winter quarter of 2016, the DCA staged an affirmative action bake sale in which they set up a table in the student center and sold cookies with different prices that were determined by whether the students were male or female, white or black, an obvious satire of affirmative action. This was done by a women’s liberation group in the 1970’s to protest unequal pay for women. This bake sale was shut down by Student Affairs, and the DCA was banned from using university facilities for a year because they had not informed Student Affairs of the political nature of their event.

Shortly afterward, DePaul was hit by an apparent hate crime hoax in which the campus was vandalized by racial and anti-Semitic graffiti that included a comment that it was “brought to you by the College Republicans.” It was generally assumed that the graffiti was a hoax, an attempt to frame the College Republicans, perhaps in response to the bake sale.

As a result of these events, FIRE picked out DePaul as one of the worst violators of free speech among all universities and colleges in the US. DePaul received two separate awards for being among the most politically correct institutions. Its president, Dennis Holtschneider, was named as the second worst college president for protecting free speech rights.

During spring quarter, 2008, a group of conservative students brought a speaker from the citizen border patrol group, the Minutemen, to campus. In response to widespread criticism of the impending talk, the school administration imposed a $2500 fee for security at the event. In addition, they changed the location three times, banned media from attending and capped the audience at 200. At the event, a large crowd of protesters paraded outside including one with a sign calling one of the student organizers a fascist.

In the fall of 2008, Natan Sharansky was invited to speak on campus. The sponsors of the group were asked to provide a copy of his speech in advance which they did not do. However, the administration insisted that they be shown a copy of the introductory remarks to be made by a student speaker. Later on in the year, during the spring quarter, 2009, the announcement of a speaker from Israel to talk about rocket attacks on southern Israel included a plan to display an unarmed Qassam rocket to help illustrate what the Jewish state was up against. This prompted a letter to the DePaul faculty from nine student groups asking them to prevent the use of the rocket as a prop.they Nine student groups on the left argued that the weapon would be dangerous both physically and emotionally even though it would not actually have been armed. Secondly, they argued that it would support the Israeli side of the Arab/Israeli conflict without input from the Palestinian side.

In January 2013 Kristopher Del Campo and other pro-life students received permission from the university to erect a pro-life display featuring 500 flags. The flags representing aborted babies were displayed on an open area central to the DePaul campus. A group of students from a gender studies class vandalized the flags, throwing many of them into a trash basket.

The university’s public safety department investigated and identified 13 students who confessed to the crime and admitted that their actions were inappropriate. Those names were then published online. Del Campo was then charged by the university for releasing the names and found guilty by the university on two counts – “Disorderly, Violent, Intimidating or Dangerous Behavior to Self or Others” and “Judicial Process Compliance.” Once again, a way was found to turn the conservative student victims into oppressors and the offending pro-choice students into victims.

The Free Speech Task Force

In response to the controversy around the Klocek matter and the bake sale, DePaul created a free speech task force to try to reconcile the need to preserve a community that allows for vigorous uncensored speech and the demands of some to prevent speech that they deem offensive. The committee came up with a proposal that was a vigorous defense of free speech. Unfortunately, a subcommittee of the Presidents Diversity Council (PDC) claimed that they were the ones who decided speech policy and managed to intimidate the task force into rescinding its proposal. One of the task force members, a student Nick Hahn, published two articles in Frontpage Magazine, here and here that described what happened to the task force’s proposal As a result, hysteria followed in which Nick Hahn was denounced for violating confidentiality, the PDC subcommittee members declared they felt unsafe and threatened, Nick was kicked off the task force and the whole attempt to guarantee free speech rights was abandoned. In the recent DePaul discussions about the Milo incident, there are numerous references to the free speech task force, all from the perspective of the people who sabotaged it.

As regards the current controversies at DePaul over free speech, the administration is sponsoring an ongoing series of discussions on the issue of race and free speech. Some of its recent efforts can be seen here and here. The school has also assembled a group to look at considering university policy regulating speech. Needless to say, some of the biggest opponents of free speech are now on this new task force.

DePaul’s Political Climate

In light of the numerous times DePaul has been on the radar of FIRE, an obvious question to ask is why. Was there something unique about DePaul’s culture that made it particularly prone to attacks on free speech? DePaul is a Catholic school with a student body that comes from backgrounds that are not particularly liberal. Chicago is firmly in the camp of the Democratic Party but Chicago Democrats are not especially left-wing. Is DePaul more politically left than other colleges and universities? Clearly, it is overwhelmingly liberal but no more so than hundreds of other schools.

Many schools recently have had their fair share of attacks on free speech. In many cases, the administrative weakness has wittingly or unwittingly enabled disruption of talks given by conservative speakers and in some cases led to infringement on the political rights of conservative student groups. In most cases administrators have operated out of a kind of cowardice, believing that the disrupters are best off appeased rather than confronted. DePaul is different because much of the political bias is coming from the administration itself.

What struck me as unique about DePaul is that the administration made no effort to conceal its political biases. Rather, it reveled in them. In its public relations, it displayed great pride in producing public intellectuals, faculty who contributed their views to local media or gave talks in the community. Invariably, while such activity was described as using expertise to contribute public service, it was generally representative of a strong liberal agenda. In its hiring practices, there was an emphasis on hiring women and minorities as well as a preference for those whose research agendas contained the buzz words of gender, race and class. In addition, the school was very proud of its choice of very liberal graduation speakers because they helped advance the university’s mission.

There was a tremendous push to promote multiculturalism. Money was allocated to create a variety of programs and centers that were identity oriented. Administrative staff was hired to support agendas associated with identity. This sounds relatively benign. Minority cultures make up part of the United States. In some ways, we are a nation of minority subcultures. But at DePaul, multiculturalism was always centered on grievance.

There is a problem with this approach. It becomes difficult to criticize minorities. From this point of view, their grievances are real, particularly historically, and so people don’t really have the right to comment on them unless their comments reinforce an appropriate narrative. When conservative students confronted the director of the Cultural Center about spending a lot of money to bring in Ward Churchill to educate DePaul students about diversity, they were deemed bigots. When they staged a protest of affirmative action, they were told they were racist. When pro-life students on the fortieth anniversary of Roe v. Wade put up flags to protest all the abortions since the Supreme Court decision, they must have been anti-women. Hence, after students outraged by the flag display vandalized their protest, a way was found to make the pro-life students the villains rather than those who destroyed their flags.

Tracing events at DePaul all the way back to the Lilly Foundation grant and the recommendations of the Multicultural Implementation Committee in the mid-90s, one can see the conflict between the administration and its conservative students as driven by a political agenda. It is a view that sees the world as separated into protected classes and their oppressors. Over the years the school has developed rules regarding various forms of harassment. These guidelines are codes which essentially say that in conflicts between a member of a protected class and its opposite, favor the member of the protected class.

When the university administrators say they are banning Milo from speaking on campus because he is a provocateur who strives to wound rather than persuade, they are being disingenuous. They banned Ben Shapiro as well as Milo. Though Holtschneider acknowledged that the differences with Shapiro were basically political rather than his style, he was banned anyway because they were afraid of more disruptions. The bottom line is that speech codes, anti-harassment rules and regulations concerning speakers are about political repression. Conservative students understand this very well.

BRANDEIS THE LATEST LAWSUIT TARGET

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

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

‘Emergency Suspension’      

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

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

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

 Withholding Information

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

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

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

 Who Needs Due Process? 

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

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

TEN CAMPUS RAPES—OR WERE THEY?

How Accusers Play the Drinking Game at Washington and Lee

As you’ll see from the this list of stories, the male students who have the resources to challenge the illegal bullying of their constitutional rights do so by filing a due process lawsuit, like the one facing Washington and Lee. The facts, by this point, are depressingly familiar.

Two students had a sexual encounter after attending a party, during which both consumed alcohol. The next morning, the accused student drove the accuser back to her dorm. The next day, the accuser told a friend that she had a good time the previous evening, and made no mention of any assault; and the accuser hooked up with the accused student a month later. Many months later, and after working over the summer at a women’s clinic, the accuser indicated that she’d had an “evolution” in how she felt about the incident, which she now concluded was a sexual assault.

Part of this evolution was seeing the name of the accused student—who she had also discovered now had a girlfriend—on the acceptance list for a college program in Nepal.
Originally posted January 26, 2015. Read more about the Washington and Lee case here.

Railroading at Vassar

Peter Yu
Peter Yu

Peter Yu and a fellow member of the crew team attended a party, had quite a bit to drink, and then returned to his room to have sexual relations. Yu’s roommate interrupted them, the accuser said she didn’t want to go any further, and she left—following this up with several Facebook messages, over many weeks, in which she expressed regret for how the evening had wound up. Then, on the last day allowed under Vassar procedures, Walker (whose father is a Vassar professor) filed a sexual assault complaint at the school; the timing precluded Yu’s filing a counter-claim…

Perhaps the most problematic aspect of the Yu case was the sense that the accuser—whose father, after all, is a Vassar professor—gamed the system. Her waiting until the very last moment to file charges robbed Yu of a chance to file counter-charges—that is, to claim that since both parties were drunk, the accuser was as guilty of sexual assault as was he. And her pushing the case to the IVP ensured that she would be judged solely by colleagues of her father, rather than by a mixture of students and faculty members.
Originally posted April 5, 2015. Read the entire story here.

After an Alleged Rape at Columbia, “I Love You Paul. Where Are You?”

Paul Nungesser
Paul Nungesser

Alleged victim Emma Sulkowicz continued to have chatty and playful Facebook exchanges with alleged rapist Paul Nungesser for weeks after she says he brutally violated her and choked her within an inch of her life. After the alleged rape On Oct. 3, Sulkowicz’s birthday, Nungesser sent her an effusive greeting; she responded the next morning with, “I love you Paul. Where are you?!?!?!?!”
Originally posted February 10, 2015. Read about Columbia’s “mattress girl” here.

How Drunk Can You Get at Cornell?

Two students had intimate relations after a night of drinking. Sixty-six days later, the accuser filed a complaint with Cornell, arguing that she was too drunk to have given consent. As at DePauw (see below), the university gave more weight to students who corroborated the accuser’s story than to apparently identically situated students who backed the accused’s version of events, seemingly to shoehorn a finding that would edge past the preponderance-of-evidence threshold. Apart from the accuser, Cornell’s main witness appears not to have been any of the students with whom the accused and accuser partied, but instead a close friend of the accuser with whom she breakfasted around 30 hours or so after the alleged encounter. Because Cornell now employs the single-investigator model, the accused student (and his representative) had no opportunity even to see the accuser testify, much less to cross-examine her.
Originally posted March 23, 2015. Read more about the lawsuit here.

Basketball Star Accused at Xavier

After what he claimed was an incident of consensual sexual intercourse, Xavier basketball star Dez Wells was accused of sexual assault. In a mere 27 days from accusation to judgment,

Dez Wells
Dez Wells, Baltimore Sun

the university concluded that Wells was “responsible for rape” after a process in which Wells couldn’t cross-examine his accuser and was deemed a rapist based on a preponderance-of-evidence threshold. All this occurred while Cincinnati authorities determined that there was no basis to pursue criminal charges; prosecutor Joseph Deters deemed the Xavier process “fundamentally unfair.”

In the Wells case, “justice” was swift–and unjust. So Wells filed a federal lawsuit, claiming gender discrimination and libel, and urging the court to overturn the result of Xavier’s disciplinary tribunal, called the UCB. On Wells’ Title IX claims, the order held that Wells’ allegations plausibly showed that Xavier was “reacting against him as a male to demonstrate to the OCR that [university officials] would take action, as they had failed to in the past, against males accused of sexual assault.” The judge noted that the university, which ignored warnings from the prosecutor that the sexual assault claim was unfounded, deemed Wells a rapist anyway.
Originally posted March 13, 2014. Read more about this case here.

Why ‘Yes’ Means No at Occidental

Occidental is the California college whose rules allow branding a male student a rapist even if his female partner says “yes” to sexual intercourse. Moreover, the school includes what seems to be a disproportionate number of anti-due process “activists,” professors inclined toward delusional claims against their administration even as they suggest that outsiders should trust their credibility that the campus is awash in rape. The Occidental case is, if anything, more extreme than the typical due process case because of the involvement of an anti-due process member of the Occidental faculty, Danielle Dirks.

Dirks counseled the accuser to file a sexual assault claim against a male student, according to a confidential report prepared by Occidental and obtained by FIRE, because the accused student “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’” (Imagine the howling from the Occidental faculty if the school more generally used profiling on criminal matters.) Moreover, the accuser went to police, who, along with prosecutors, concluded that both parties had too much to drink, but no rape occurred, since both were “willing participants.”

Yet Occidental branded the accused student a rapist anyway.
Originally posted June 6, 2014. Read more about Occidental here.

Yale and The NY Times Smear a Quarterback

Patrick Witt was a quarterback, and a very good one, at Yale. He was also a finalist for the Rhodes scholarship. It turned out that his interview for the Rhodes coincided with the day of the Harvard-Yale game. After some thought, he decided to withdraw his Rhodes candidacy and play in the game on November 13, 2011, which, alas, Yale lost. Two months later, a New York Times’  reporter, Richard Perez-Pena, swooped in with a nearly 2,000-word article splashed over the front page of The Times sports section announcing that the Rhodes Trust had suspended Witt’s candidacy, because it had learned that he had faced an allegation of sexual assault.

Patrick Witt
Patrick Witt

The story left everything else to insinuation, but any reader would have come away with the following conclusions: One, that Yale and Witt had conspired together to present a false explanation of why he had chosen to withdraw. Second, that Witt was something of a habitual criminal. And third, that he likely had done it. Nearly one-tenth of the article was devoted to two extraneous and minor alcohol-related arrests of Witt, the inclusion of which in the piece seemed to have the sole purpose of smearing his character.

This story received a good deal of public criticism, including from me. In response, The Times sort of doubled down on the story–exactly what they did in the Duke lacrosse case. They did not reassign Perez-Pena, as they had not reassigned Duff Wilson, their lead reporter in the lacrosse case. But they did authorize the public editor, Arthur Brisbane, to do his own reporting. This is a very odd journalistic strategy: a public editor reporting what the paper’s own reporter had chosen not to do.

The public editor conceded, in paragraph 24 of a 26-paragraph piece, that the original article never should have been published. The best reporting on the case was actually done not by The Times but by the Yale Daily News. And the best analysis of the case was done not by The Times, but by the sports website, Deadspin. Both showed that Witt likely withdrew for the exact reasons that he said, that he wanted to play in The Game, and he felt an obligation to his team.

How did an accusation of rape with no evidence, no legal recourse for the accused come to pass at a school renowned for its law school? Yale, in late 2010, decided that its sexual assault procedures were not sufficiently tilted in favor of the accuser. And so they set up a separate, informal complaint procedure for sexual assault. And it is this procedure to which Witt was subjected. Under this procedure, an accuser can file an allegation of sexual assault against a fellow classmate if he or she determines that that classmate has caused him or her to worry.

Generally, worrying does not rise to the level of sexual assault. Once this procedure is initiated, and this is a direct quote from the Yale guidelines, “the goal is to achieve a resolution that is desired by the [accuser].” In blunt language, this means that the accused student, Witt in this case, does not have the right within the Yale procedure to cross-examine his accuser. He does not even have the right to present evidence of his innocence. The accusation is accepted at face value, and the purpose of the process is to resolve it in a way that the accusing student feels comfortable.

It is on the basis of this sort of complaint, filed under this procedure, that the Rhodes Trust decided that it needed to suspend Witt’s candidacy. That’s nothing short of extraordinary.
Originally posted on April 2, 2012.

J’Accuse at DePauw

By now, the specifics of the DePauw case will sound familiar. Last December, Ben King attended a party with around 30 students; most (including the accuser and the accused) appeared to have had a lot to drink. The two went back to King’s room, where some type of sexual contact (but not intercourse) occurred. King says he asked the accuser if she consented to sexual activity, and she said yes. (The accuser says that she doesn’t remember one way or the other.) Two days later, the accuser spoke to DePauw’s Title IX coordinator, claiming the sexual contact was non-voluntary. The coordinator interviewed King. After no action, nearly five weeks later the accuser said she wanted to pursue charges.

The university’s “investigation” consisted of interviews with the accuser and party witnesses recommended by the accuser (several of her sorority sisters). Reflecting what it termed its “even-handed approach” to campus claims of sexual assault, DePauw defended its decision to confine its inquiry in this manner, since interviewing all the people at the party, including neutral students, would not have been “an efficient use of limited resources.”’

The hearing occurred 12 days after the investigation ended. At the hearing, consistent with DePauw’s policies, King was denied the right to an attorney—so as to avoid “undue judicialization” of university affairs. Meanwhile, the accuser’s hearing “advocate” was married to the school’s Title IX coordinator—a figure who supplied a supposedly neutral summary of the case at the hearing, but instead appears to have impeached King. DePauw deemed the relationship between the accuser’s advocate and a supposedly neutral key factual witness “immaterial” to the outcome of the case.

In an unintentional commentary on why academics should not conduct criminal investigations, the hearing appears to have consisted mostly of DePauw’s panel asking witnesses how drunk they were (on a scale of 1 to 10) and how drunk the accuser was (on a scale of 1 to 10). Three of the four key witnesses were consistent with their written testimony, but the fourth (the accuser’s roommate who had said she sounded “fine” and “did not sound too drunk”) now rated the accuser as an 8-level of intoxication. “But,” she added, “Because I was intoxicated as well, I might have not known for sure.” The record gives no indication of the hearing panel questioning this student on why her panel testimony differed from her written statement.

King did testify during the hearing. Demonstrating the impossibility of proving “affirmative consent,” he said that the accuser verbally consented—repeatedly—to having sexual contact. He nonetheless was found guilty and expelled on grounds that the accuser was intoxicated and could not have given consent. On appeal, the university reduced the penalty to a two-semester suspension with possible re-admission, provided King demonstrated an “understanding of the issues raised by his interaction with” the accuser.

King then sued. Incredibly, DePauw cited “academic freedom” as justification for both its actions and as a reason for the court not to make an “unwarranted imposition” into university affairs. Pointing to the White House task force report, the university also argued that it was appropriate to give the accuser “some control” over the investigation (ostensibly for privacy reasons). The judge rejected King’s Title IX claim, arguing that DePauw didn’t discriminate against King on basis of his gender, but nonetheless granted a preliminary injunction, arguing that DePauw violated its contract with King.
Originally posted Dec. 17, 2014.

The Donor Influence at Brown

Brown University
Brown University

Marcella (Beth) Dresdale was the former Brown student who accused a classmate of sexual harassment and then  changed the accusation to rape. The classmate, William McCormick quickly left Brown but eventually sued both Dresdale and her father, Richard Dresdale, a wealthy Brown donor. Before the Dresdales agreed to an out-of-court settlement (reportedly after McCormick had been offered $1.05 million), the lawsuit brought to light Richard Dresdale’s aggressive involvement in the Brown procedure that minimally investigated his daughter’s claims.

The lawsuit documents and subsequent press coverage also focused on the role in the case played by Dresdale’s and McCormick’s residential counselor, Shane Reil. (Reil at the time was a Brown undergraduate; he’s now a student at BC Law School.) A few days after Dresdale filed her claim of sexual harassment, but before she alleged she was raped, Reil dined privately with the Dresdales at the home of another wealthy Brown donor.

Following the dinner, Richard Dresdale said he’d be willing to mentor Reil, who was attending Brown on a need-based scholarship. A few days later, Reil filed his report on the case, which offered a negative portrayal of McCormick. If the case had gone forward, Reil would have been an important witness, given both his position in the dorm and the apparent lack of any physical evidence to corroborate Beth Dresdale’s allegation of sexual assault.

The statements of at least two student witnesses–Julie Siwicki and Spencer Brody–evolved from slightly negative remarks about McCormick to damning portrayals. (In Siwicki’s instance, the evolution was transparent, since she inserted a highly negative paragraph into a previously-submitted, and basically neutral, e-mail.) The evolution in the two students’ statements occurred at about the same time Richard Dresdale was offering career assistance to Reil. Did similar offers to Siwicki and Brody help explain their “evolution,” or did Dresdale encourage deans to reach out to the two students for amplification? There’s no way to know.

Knowing that Richard Dresdale had made a mentorship offer to Reil would have opened up avenues for McCormick’s advocate to question Brody and especially Siwicki, to see if any improper contact had occurred between Dresdale and these witnesses. Yet according to Brown, the university’s procedure is set up so that no witness must divulge an offer of career assistance from an accuser’s wealthy father. This Catch-22 approach all but insures that improper contact between an accuser’s family and witnesses will remain secret.

Even if it was wholly innocent, the Dresdale-Reil contact illuminates yet again the limited due process protections available to accused students in campus tribunals. If McCormick had been criminally charged, the discovery process doubtless would have turned up the Dresdale e-mails, and Dresdale could have been cross-examined on the witness stand as to whether he was seeking to influence potential witnesses.
Originally posted  June 12, 2012. Read more about the Brown case here.

Wesleyan and Swarthmore

There are two certainties from the current crusade against due process for students accused of sexual assault. First, in coming years, there will be a higher percentage of convictions, since colleges must use the preponderance-of-evidence and are strongly discouraged from allowing accused students from cross-examining their accusers. Second, because so few due process protections exist in campus tribunals, more of these convictions will involve innocent students—who in turn will pursue legal actions to redeem their reputations and salvage hopes of a post-college career. Several recent developments illustrate both points. First: as FIRE reported, Swarthmore has reached a settlement with an anonymous student who sued the school, alleging due process violations in his case. (I wrote about the lawsuit earlier; Swarthmore’s new special master on sexual assault cases conceded that the school uses a “very low bar” to deem its students rapists.) Most of the settlement terms were confidential, but one item was public. Swarthmore has now agreed that unspecified “new information raises sufficient questions about the fairness of the hearing to warrant vacating the Panel’s finding and sanction.”

Swarthmore has admitted that it falsely branded a student a rapist, and the reason it did so was the weakness of the school’s procedures, which prevented the student from presenting evidence of his innocence. Also, a new lawsuit against Wesleyan has prompted even the biased Katie Baker to notice the due process problem on campus. The lawsuit, filed by an anonymous student who the school contended committed sexual assault for what the filing terms “non-consensual kissing,” portrays a college facing enormous pressure—both from the OCR, which wants colleges to more aggressively prosecute sexual assault cases; and from on-campus activists demanding the end to single-sex fraternities as a way to end “rape culture” at the college. (The accused student was a frat member who had opposed the policy change.)
Originally posted November 23, 2014.

All ten accounts here are excerpted from original stories by KC Johnson and Cathy Young.