Tag Archives: Title IX

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.

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.

More on the Sex Panic at Yale

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

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

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

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

Here are some revelations from previous Spangler reports:

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

Limiting Information

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

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

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

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

The Numbers Lie

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

The Incidents

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

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

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

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

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

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

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.

Basketball Star Sues Yale

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

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

Four major points from the complaint:

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

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

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

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

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

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

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

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

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

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

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.

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

The American Association of University Professors (AAUP) has just dipped its oar in the dank water of Title IX.  The AAUP’s draft of its new document, The History, Uses, and Abuses of Title IX, leaves much to be desired.  But welcome to the fight, AAUP.  We’ve been wondering when you would show up.

From 1972 to Now

A refresher.  How did we get here?

Title IX is Title IX of the Higher Education Act, which was added to the 1965 Act as part of its 1972 reauthorization. The key sentence in it is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

That seemed simple enough at first. Don’t discriminate against men or women on the basis of their sex, you American colleges or universities, or we will cut off your federal funds. “Financial assistance” referred primarily to federally guaranteed students loans, codified as Title IV of the Higher Education Act. By 1972, almost all colleges and universities had become addicted to the money flowing in from those loans.  The loans officially went to the students, but the dollars went to the college bursar offices, and the colleges had to be pre-approved by the Department of Education as worthy recipients.

So Title IX had instant clout. But it was also a bit murky.  Clearly it didn’t apply to single-sex institutions.  What forms of discrimination did it legislate against?  The answer emerged slowly, first through regulations issued by the Department of Health, Education, and Welfare in 1975 and later through litigation. The 1975 regulations suddenly made it clear that Title IX was going to be used to advance women’s sports on campus. But it took years of litigation to arrive at what Title IX would really mean: the destruction of many men’s sports teams to ensure that women’s sports were in parity with men’s sports.

Title IX soon began to grow in new and unexpected directions, sometimes in conjunction with court decisions that didn’t initially appear to have anything to do with higher education.  A good example is the Meritor Savings Bank v. Vinson U.S. Supreme Court decision of 1986, which defined “hostile environment” for sexual harassment cases under Title VII of the 1964 Civil Rights Act.  It would take several more decisions and some creative thinking on the part of regulators to get to the idea that wherever an environment can be described as “hostile” there also is a Title IX discrimination case waiting to be framed and fitted out.

“Hostile environment” was supposedly limited by the Supreme Court in Davis v. Monroe County Board of Education in 1999 to “severe, pervasive and objectively offensive” sexual harassment, but OCR has seen no need to get so fussy.  It sees “hostile environments” created by harassment pretty much wherever it likes.

Complaints about how Title IX now runs roughshod over due process, academic freedom, and basic fairness are now legion. The basic picture is that the mere expression of some words and ideas is now at risk of being conjured into a Title IX complaint on the grounds that those words and ideas make some people uncomfortable.

Dissents

My organization, the National Association of Scholars, has been criticizing the new Title IX regime for years.  We also have an older history of wrestling with the excesses of the feminist-inspired attacks on academic freedom. NAS isn’t alone in this.  FIRE is a stalwart ally, among others. NAS’s 2014 “Compendium of Key Sources” on sexual assault provides a good summary as well as a gateway to other materials.

The AAUP has also on previous occasions ventured into this topic, most notably in its 2012 “Campus Sexual Assault: Suggested Policies and Procedures.” But the AAUP’s brand new statement ventures in a somewhat unexpected direction.  It seems, at least to some of its first readers, like a stronger check on OCR policies.

“A Slew of New Problems”

The History, Uses, and Abuses of Title IX impressed The New York TimesInside Higher Ed and The Chronicle of Higher Education the same way:  as a complaint that Title IX rules have gone too far and are stifling free speech.

The New York Times leads with “broadening definitions of inappropriate sexual behavior” having “a chilling effect on academic freedom and speech.”

Inside Higher Ed leads with the Office for Civil Rights (OCR) creating “a slew of new problems with implications for free speech and academic freedom.”

The Chronicle of Higher Education headlines, “AAUP Slams Education Department and Colleges Over Title IX Enforcement,” and leads with the sexual assault rules that “trample faculty members’ rights to academic freedom, due process, and shared governance.”

All three see the AAUP as boldly stepping forward to declare that the Title IX enforcement regimen has gone too far.  It is now chilling/compromising/trampling free speech—which doesn’t sound especially good.  Has the AAUP suddenly come to the realization, long since achieved by millions of other Americans, that Title IX rules and enforcement have gone crazily overboard?

Let’s not be hasty.

Two of the journalistic watchdogs of higher education are quick to add zag to their zig:

The New York Times: The AAUP “does not mean to underestimate the gravity of sexual harassment complaints.”

Inside Higher Ed: “The Office for Civil Rights brought needed attention to the problem of sexual assault and harassment on college campuses.”

The Chronicle of Higher Education, however, sticks closely to the theme that the AAUP has launched a relentlessly tough-minded criticism of OCR’s Title IX overreach.

What’s the truth of the matter?  Has the AAUP consulted its moral compass and found the true north of presumption of innocence, due process, fair treatment of the accused, respect for evidence, and freedom of expression?  Or has it offered a temporizing defense of some of its principles some of the time, provided that they don’t get in the way of the feminist social justice agenda?

Feminists Burnt by Feminism

Alas, when we turn to the report itself, it is more the latter.  The major problem that the AAUP raises with Title IX rules is that they have more than once been turned against well-meaning women’s studies professors and other campus feminists. The “abuses” signaled in the title of the report exist at an abstract level for much of the report: “OCR has given only limited attention to the due process rights of those accused of misconduct.” [p. 17] But when AAUP gets down to specifics, we hear very little of the hapless male students thrown under the Title IX bus on flimsy or no evidence.

Instead we have accounts of the travails of Professor Patty Adler at the University of California, Boulder, who was Title IX’d for having her undergraduate teaching assistants in her Sociology class, “Deviance in US Society,” act out roles in class as “Eastern European ‘slave whore,’ pimp, a ‘bar whore,’ and a high-end escort.”  For this Professor Adler found herself accused by students of sexual harassment and was pressured by her dean to accept an early retirement.  The dean eventually backed down but Adler, “deeply affected by the chilling academic freedom climate,” retired anyway after one more semester.  [pp. 23-24]

AAUP’s second example: Louisiana State University early childhood education professor Teresa Buchanan, drummed out of her job after complaints from students about her “salty language.” Some of her students, preparing for careers teaching very young children, didn’t care for “F*** no” interjections, her use of “a slang term for vagina that implies cowardice,” and similar indiscretions.  Buchanan defended herself saying, “The occasional use of profanity is not sexual harassment.” But Title IX rules are pretty tough.  Buchanan is suing. [pp. 24-25]

Not So Fun Home

Another incident the AAUP draws attention to is the closing of Center for Women’s and Gender Studies at the University of South Carolina Upstate.  The closing “coincided” with controversy about the use of the “lesbian coming-of-age story,” Fun Home, as a common reading at the university. Fun Home had garnered “trigger warnings” at three other colleges, and a Title IX administrator at a university in another state in a previous year had issued a memo that warned that some students might have had “traumatic experiences” that teachers using “materials containing instances of violence related to power, control or intimidation” should take into account.

So, a memo by a Title IX administrator at a university in one state; a “trigger warning” on a book in three other universities in different states; and the closing of a Women’s Studies center at yet another university add up to what?  In the AAUP’s audacious analysis: “the fact that the serious study of sex and sexuality are becoming increasingly vulnerable fields of study.”

Kipnis’ Conniption

The AAUP report also devotes some attention to Northwestern University Professor Laura Kipnis, who was Title IX investigated after some students took umbrage at her article in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe,” in which Kipnis leveled some criticisms at the “new paradigm” of sexual harassment rules.  In the article Kipnis styled herself a strong feminist:

For the record, I strongly believe that bona fide harassers should be chemically castrated, stripped of their property, and hung up by their thumbs in the nearest public square. Let no one think I’m soft on harassment. But I also believe that the myths and fantasies about power perpetuated in these new codes are leaving our students disabled when it comes to the ordinary interpersonal tangles and erotic confusions that pretty much everyone has to deal with at some point in life, because that’s simply part of the human condition.

But Kipnis ended up fighting—in the AAUP’s words—a “bureaucratic ordeal” or in her own words, a “Title IX Inquisition.” Kipnis won, but clearly Title IX was being put to uses that feminists didn’t intend.

Male Victims

The AAUP does find some male victims of Title IX. A University of Kansas student had to fight expulsion after he made tweets on his private account deriding his former partner as a “psycho bitch.” Chemistry professor Craig Anderson was Title IX’d after a lab assistant accused him of using aggressive and vulgar language. The AAUP rushed to his defense because Bard College failed to provide him due process. On the other hand, Title IX completely failed to catch University of California Berkeley astronomer Geoffrey Marcy, who met his comeuppance as a repeat harasser only when BuzzFeed broke the story.

There is a great deal more to say about the AAUP’s statement, issued as a “draft” and presumably open for further changes. But one thing at a time. The one thing to start with is that the AAUP is mostly upset that the new Title IX rules are producing “friendly fire” casualties. It was meant to punish men, regardless of their guilt or innocence. To accomplish that it set the evidentiary bar so low that some women faculty members are tripped by it as well.

Some of the cases the AAUP cites make that point well enough. Others entail some stretching. But the main thing is that AAUP has paid so little heed to the larger story of Title IX tyranny: the rise of bureaucrats that can and do ruin the educational careers of male students and some faculty members on the basis of unsubstantiated allegations and sometimes even in the face of exculpatory evidence.

The Distant Shore

I am, on balance, happy that the AAUP has decided to dip its oar in these waters.  It is better that it is half-heartedly alarmed about the rolling disaster of Title IX regulation than it sit back in smiling approbation of the new regime. But I don’t think the AAUP’s oar will propel us very far across the fetid lake. AAUP doesn’t like Title IX’s collateral damage. It is rather less concerned with its main targets.  What we really need is a thorough housecleaning at OCR; the retraction of the noxious “Dear Colleague: letters; and in due course the abolition of OCR itself, which has been a deep and continuing source of injustice in higher education.

Yale’s Case against Montague Looks Shaky

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

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

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

Related: Montague and Yale’s Poisoned Campus Culture

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

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

Related: Yale’s Imaginary Crime Wave

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

Yale-Title IX

 

 

 

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

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

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

Media Reaction

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

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

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

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

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

The Hostage-Video Statement

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

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

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

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

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

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

Yale’s Imaginary Crime Wave

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

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

The Odd Sexual Accounting at Yale

Previous reports have revealed such items as:

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

Related: A One-Sided Conference on Sexual Assault

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

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

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

What Yale and the Times Did to Patrick Witt

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Left vs. Right on Higher Education

John K. Wilson, editor of The Academe Blog, severely criticized Peter Wood’s January 13 article, “What Candidates Can Do for Higher Education Now.” His text is below, followed by Peter Wood’s reply.


By John K. Wilson

National Association of Scholars president Peter Wood has a column at Minding the Campus today arguing for an 7-point plan for what he calls “a real program for reform” of American higher education that would “take back the campus from those who are intent on making it a 24-7 taxpayer-subsidized indoctrination camp.” The notion that colleges are all run by people turning them into 24-7 “indoctrination camps” is laughably absurd, but Wood’s proposals are far from a joke.

First, Wood calls for “independent standing committees on free expression” (which is a good idea), and follows it up with a very bad idea, that if colleges “shelter students in ‘safe spaces,’ they forfeit any claim to public respect—and public support.” This talk of banning government funding for colleges that dare to provide “safe spaces” for students is alarming. It’s also hypocritical.

Would conservatives want to banish the chapels common at private colleges that are “safe spaces” for Christian students, and instead make them subject to heckling by atheists? What about Christian student groups who seek to create safe spaces by banning gay students from serving in leadership roles? The call for “safe spaces” is often a bad idea, but banning funding to colleges that respond to such requests is a far, far worse idea.

Second, Wood wants to amend Title IX because it is responsible for “reducing men to a minority group on most campuses.” Does Wood seriously believe that the absence of hundreds of thousands of men in college is due to a male boycott caused by Title IX, rather than, say, the large number of men in prison or the better job opportunities for men? Virtually all colleges already give preferences in admissions and athletic scholarships to men over women (in spite of Title IX). Wood doesn’t explain how he would amend Title IX to impose his twisted idea of equality.

Wood calls on politicians to “end higher education’s destructive focus on race” by, ironically enough, requiring colleges to report the racial differences in their students’ test scores and GPA.

Fourth, Wood wants to fix the student loan debacle by putting limits on total borrowing for students—that is, to limit opportunities for poorer students.

Fifth, Wood wants to “bust the accrediting cartel” (that is, open up higher education to more for-profit colleges that dumbed down education and worsened the student loan debacle) and also punish the College Board for being “politically correct” in the AP tests and SATs.

Sixth (continuing the theme of punishing his political enemies), Wood wants to put controls on the NSF and other federal funders to “end sycophantic science—the bribing of scientists to produce ‘findings’ meant primarily to advance political causes.” Of course, what Wood proposes is actually the creation of sycophantic science, by bribing the scientists who hold views on denying climate change that Wood thinks are right.

Seventh, Wood wants politicians to tell colleges they should require more study of Western civilization.

Wood concludes, “higher education should never be political indoctrination, welfare for special interests, or back scratching for politicians.” But that’s exactly what his proposals are: political indoctrination, welfare for corporate interests, and universities forced to serve politicians.

Wood’s proposals would involve massive political repression: he wants to change federal law to end equality for women in education. He wants to ban all government funds for colleges that he deems are responding to student activists and providing “safe spaces” for the types of students he doesn’t like. He wants to ban all government funds for researchers he thinks are engaged in “advocacy” by disagreeing with his views about science.

Wood apparently believes that trusting the government to suppress political ideas on campus is more likely to help his political wing than allowing academic freedom to prevail when many faculty are too liberal for his tastes. And that may be a bet that he would win, that his political side would prevail if today’s politicians were able to impose their ideological beliefs on colleges. But it’s not a principled decision. It’s not a decision on the side of academic freedom and free speech on campus. It’s a purely political stand made by someone who pretends he wants to eliminate politics on campus but is really imposing political tests on government funding.


Peter Wood replies:

My friend John K. Wilson offers some of his usual strictures about my advice to presidential candidates.  That he finds my counsel “deeply misguided” is not exactly a surprise.  He is an ardent supporter of several of the developments in higher education I criticized.  It’s entirely fair for him to defend his position.  But I do have a few observations.

Mr. Wilson has a tendency to paraphrase mischievously.  He quotes accurately my sentence about campus bullies who seek to make the campus “a 24-7 taxpayer-subsidized indoctrination camp,” and in the very next sentence transforms it into “the notion that colleges are all run by people” who would do this.  He calls this “laughably absurd” and indeed it is, but it isn’t what I wrote.

The technique of mischievous paraphrase runs through most of his published reply. Another example: I wrote that colleges “forfeit public respect—and public support” when they accommodate mob action and shelter students in “safe spaces.”  Mr. Wilson deftly transforms this into my calling for “banning funding” to colleges that respond to calls for safe spaces.  Banning funding is certainly one way to forfeit “public support.”  But you can generally get the attention of college officials with something less drastic.  The key question is how to end the sense among some college presidents that they are entitled to public support regardless of what they do.

Mr. Wilson wonders if I believe that the disproportionately low number of men attending college is “due [to] a male boycott caused by Title IX.”  Mischievous paraphrase again.  I stand with a great many observers of the campus scene who recognize that the invidious interpretations of Title IX of the Higher Education Act that have come from the courts and from federal bureaucrats have made colleges and universities less attractive to many students.  Disincentives are one thing; a “boycott” is something else, and I know of no evidence that men are boycotting college.

Mr. Wilson seems to think there is a contradiction between wanting to end racial preferences in higher education and requiring colleges to divulge the magnitude of the preferences they use. Hardly.  Colleges and universities hide this data because they know the public would be outraged.

Mr. Wilson continues in this vein of refutations that refute something other than what I wrote, and in the interest of avoiding tedium, I won’t go through the rest.  I do take as heartening that he responded at all.  Generally campus progressives refrain from any comment about views and opinions expressed by critics who do not share their premises.  Mr. Wilson is among a very few who persist in paying attention and responding.  He doesn’t do it especially well, but I make allowances for that.  He is stuck defending doctrines that are, at a deep level, indefensible.

How Title IX Became a Policy Bully

By KC Johnson

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

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

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

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

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

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

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

Related: Three Men Unfairly Branded as Campus Rapists

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

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

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

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

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

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

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


 

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

 

Two Lawmakers Vote No to Safe Campus Act

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

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

Related: The Rape Epidemic on Campus Does Not Exis

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

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

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

Related: Suing Over Star Chamber Hearings 

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

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

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

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

Tenure, Kipnis and the PC University

Some coincidences are less coincidental than others are. Northwestern University recently investigated professor Laura Kipnis, regarding complaints that an essay of hers had violated students’ legal rights. Meanwhile, a committee of the Wisconsin state legislature voted to let the University of Wisconsin choose, as a matter of policy, whether its professors would enjoy the protections of tenure, removing that guarantee from state law, where it has been established for many years.

At no point do the two sagas intersect. The universities are in different states. One is private; the other is public. No actor in either story has even a walk-on part in the other.

The Public’s Rising Contempt

There’s a connection, however. Northwestern’s bizarre, egregious treatment of Kipnis strengthens the case against the credentials-industrial complex that MTC and other critics have been making for years: zealots, frauds, and cowards are turning the citadels of academic freedom into indoctrination camps.

The Kipnis story didn’t cause, but strongly reinforces, growing popular contempt for higher education and its denizens, whose vast self-regard rests on academic ideals they do so much more to flout than uphold. That contempt, in turn, makes it possible, even irresistible, for politicians to curtail prerogatives that serve academics’ private interests but no longer advance the public interest in ways voters can discern or believe.

The Wisconsin professors defending tenure are saying all the right things. (Despite being a little hysterical: tenure protects academics throughout the country without being enshrined in state law. Wisconsin has been the exception.) “Work in higher education, and in education more generally, depends upon the ability to have critical conversations,” said one. “I can’t stay where I can’t speak,” another declares. “And believe me, I cannot speak without tenure.”

Noble Words, Ignoble Deeds

The president of Northwestern University, Morton Schapiro, also says the right things. “Freedom of speech doesn’t amount to much unless it is tested,” hewrotein March. “And if the First Amendment doesn’t matter on college campuses, where self-expression is so deeply valued, why expect it to matter elsewhere?”

Despite the noble words, the deeds have been contemptible. In February, Kipnis published an essay, “Sexual Paranoia Strikes Academe,” in the Chronicle of Higher Education. It argued that restrictive university codes of sexual conduct amounted to “feminism hijacked by melodrama” about “helpless victims and powerful predators.”

Evidence justifying her lament that students “were being encouraged to regard themselves as … exquisitely sensitive creatures” came within days. Campus protesters denounced the Kipnis article, which one found “terrifying.” A public letteraccused her of “spit[ting] in the face of survivors of rape and sexual assault everywhere.” A petition, claiming that the essay had “caused tremendous hurt,” called on Northwestern to issue “a swift, official condemnation of the sentiments expressed by Professor Kipnis in her inflammatory article and we demand that in the future, this sort of response comes automatically.”

Northwestern did not officially condemn the article. It did, however, open an investigation after two graduate students formally complained that Kipnis had violated Title IX, the 1972 legislation prohibiting colleges from discriminating based on sex. In a follow-up Chronicle essay, Kipnis reported learning—eventually; the outside lawyers investigating her case did not reveal the charges against her until after she had asked repeatedly over several days—that one student alleged her article had had “a ‘chilling effect’ on students’ ability to report sexual misconduct.” The other, mentioned in passing and not by name in the first essay in connection with a sexual misconduct claim already filed, asserted that Kipnis had retaliated against her and created a “hostile environment,” compounding the initial act of gender-based discrimination, and thereby committing a new one. The charges were based on the essay and a single tweet by Kipnis.

A Clown-Show Inquisition

Denunciations of what Kipnis called her “Title IX Inquisition” were ferocious. Liberal blogger Josh Marshall denounced the “Kipnis clown show.” (Having earned a Ph.D., Marshall is familiar with circus life.) Geoffrey Stone, a University of Chicago law professor, argued that since the case against Kipnis was “ludicrous on its face,” Northwestern should have “dismiss[ed] it as quickly and decisively as possible.”

The university’s official position was that its only option was to pursue a case against Kipnis. “Northwestern University is firmly committed both to academic freedom and to free speech,” it said in a statement, “but it is also required to investigate and respond to allegations made by complainants that particular actions or statements might violate Title IX.” (Emphasis added.) The U.S. Department of Education’s determination to make Title IX a vehicle for policing campus sexual behavior is indeed a big part of the problem, but doesn’t sustain the claim that universities have no choice but to run kangaroo courts. When federal policies are unpopular on campus, like sending military recruiters during the days of don’t-ask-don’t tell, the universities’ posture is righteous disdain, not meek acquiescence.

Treating Her Fairly 

After Northwestern determined there was no basis for pursuing the Title IX case against Kipnis, one particularly obtuse blogger (a philosophy professor at another university) argued that the investigation she had been “demonizing” turned out to have treated her fairly. This assessment ignores the obvious fact that undergoing the investigative process was a punishment. Despite its president’s platitudes about valuing self-expression, Northwestern’s risk-averse faculty members will inevitably self-censor rather than increase their exposure to such investigations.

The fact that Kipnis has tenure belies Wisconsin professors’ claims about the impossibility of speaking freely without it. Tenure, as understood by one of the country’s most prestigious universities, is no longer a sufficient condition for exercising freedom of speech with confidence there’ll be no professional drawbacks.

But l’affaire Kipnis shows, strangely, that neither is tenure a necessary condition for free speech. In the midst of the controversy, a Northwestern graduate student wrote a Huffington Post article claiming the university was treating Kipnis too leniently, not too harshly. Its preposterous argument about how the school’s “hostile environment” had made it impossible for students to “flourish” led Josh Marshall to suspect it was a parody: an attempt, like the Alan Sokal hoax, to write something so idiotic that readers would quickly realize that even academics aren’t that crazy.

More importantly, as Kipnis argued, the fact of the Huffington Post article demolished its thesis. “If a graduate student can publicly blast her own university’s president, mock his ideas, and fear no repercussions, then clearly the retaliatory power that university employment confers on anyone—from professors to presidents—is nil.”

The First of Many?

What is, then, both necessary and sufficient to speak your mind in the modern academy without risking career turmoil is to affirm, rather than question, the reigning, strengthening political-identity orthodoxies. That reality mocks the pieties about tenure’s societal benefits, created when professors have the confidence to express their ideas boldly and pursue their work freely. And that reality reduces academic tenure to a job-protection racket sustained by tax and tuition payments from people who will never have guaranteed lifetime employment. Until academic life and governance is re-principled, the Wisconsin vote against tenure is likely to be the first of many.

Title IX: Not About Discrimination

Imagine
a hypothetical gourmet grocery store chain — let’s call it Wholly Wholesome
Foods — that serves haute cuisine specialties at sushi/deli/lunch counters only
in its stores located in upscale neighborhoods. Now imagine the long zealous
arm of federal, state, and local enforcers accusing WhoWhoFoo of discriminating
against inner city residents and forcing it to open its lunch counters in all
of its stores, even those located in areas where extensive and intensive
studies have shown there is no unsatisfied desire to pony up for counter
service for WhoWhoFoo’s fancy foods.

Anyone
who thinks my hypothetical is too far-fetched need look no farther than America’s
college campuses to confirm that it isn’t a hypothetical at all. It’s been
happening in real life (or the college campus version of real life) for years
in ongoing disputes over implementing Title IX’s
requirement
that “athletic programs are operated in a manner that is
free from discrimination on the basis of sex.” 

The
central, unresolved conundrum of Title IX, as with so many controversial civil
rights issues, is lack of consensus over the definition and meaning of the “discrimination”
from which these programs must be free. Do colleges discriminate against women
by not offering sports programs in which few women are interested? Does “equal
opportunity” require eliminating programs in which men are interested in order
to have an equal number of programs available to men and women?

A few days ago Inside Higher Ed
published yet another report
of Title IX supporters reacting in outrage to yet another new study
arguing that “it may be a mistake to base Title IX implementation on the
assumption that males and females have, or soon will have, generally equal
sports interest.” Title IX activists reply, in effect, so what? Thus Erin
Buzuvis, a law professor at Western New England University who runs the Title IX Blog,
wonders,


why
are we surprised, in a world where there’s still sex discrimination, that women’s
participation in sport is lower than men’s? Women have inferior opportunities
and they have to do so against the cultural grain…. It doesn’t say anything at
all about what interest levels would be there absent discrimination and absent
these strong cultural forces.

 

In
any event, claims Nancy Hogshead-Makar, a law professor at Florida Coastal
School of Law, colleges can remain in compliance “by demonstrating that the
interests and abilities have been fully accommodated by the present program and
there is no unmet demand (via student surveys and such).”

Hogshead-Makar’s
claim is at best disingenuous, since Title IX proponents always ferociously
attack any attempt to measure women’s interest in college sports offerings as,
in the words of a senior executive at the NCAA quoted
by the Chronicle of Higher Education in 2007, “contrived to show that females
are not interested in participation.” Similarly, in a 2010 Inside Higher Ed article,
Marcia
Greenberger
, founder and co-president of the National Women’s Law
Center, denounced interest surveys as “simply an underhanded way to weaken
Title IX and make it easy for schools that aren’t interested in providing equal
opportunity for women to skirt the law.”

That
Title IX activists aren’t actually opposing discrimination was nicely revealed
by Myles Brand, the late president of the NCAA. No survey, he said in the same
Inside Higher Ed article, could adequately measure women’s interest, “nor does
it encourage young women to participate.” If that’s what Title IX is about,
then the purpose of Title II‘s
requirement of equal, non-discriminatory access to public accommodations must
have been to encourage more blacks to sleep in hotels and buy ham sandwiches at
lunch counters.

Title
IX, in short, has nothing to do with ending discrimination. Like so much of
what passes for civil rights these days, it is all about promoting “equity,”
i.e., proportional representation in college sports, whether or not the
interests of men and women students is proportional.

Yale’s New Low and the Sad Saga of Wendy Murphy

Few figures involved in the Duke lacrosse case behaved more disgracefully than Wendy Murphy, an adjunct professor at the New England School of Law. A  frequent TV commentator on the case, she  earned a reputation for defending Mike Nifong’s prosecution through myriad errors of fact, misstatements of the law, and deeply offensive statements such as her betting that “one or more of the players was, you know, molested or something as a child.” To Murphy, there are no false accusers of rape–so as soon as an accusation is made, a “victim” exists. The presumption of innocence, she has maintained, is no more than a presumption that the “victim” isn’t telling the truth.

That bizarre conception of due process is right at home at Yale. The university’s troubling new policies toward sexual assault allegations reached public attention through the New York Times‘s attempt to smear former Yale quarterback Patrick Witt, who was caught up in the university’s Kafka-like “informal complaint” system. (In this procedure, designed to give the accuser maximum control of how the process plays out, the accused student doesn’t even have the right to present evidence of his actual innocence, much less cross-examine the accuser or have legal representation.)

The Witt affair turned out to be the tip of the iceberg regarding due process–an internal report revealed that the “informal complaint” policy allowed Yale to set up a monitoring program for at least one faculty member without even telling him he’s under investigation. The allegation of sexual harassment alone was sufficient for the finding of guilt.

Now these sorts of arrangements will be the norm. Yale has entered into a consent decree with the Office of Civil Rights, ensuring the “use of the preponderance of evidence standard in determining whether sexual misconduct occurred”; promising an informal complaint procedure in the future in which no accuser has to face cross-examination from the person she accused; and creating a double jeopardy system in which the rare accuser who doesn’t get her way at the lower level can appeal a not-guilty finding.  So it’s almost fitting to see the commentator renowned for denigrating due process and the university that celebrated its own denigration of due process paired up in a race to the bottom.

The triggering event was a Title IX lawsuit–generated, Murphy claimed, by the Yale-OCR settlement–filed by her and another attorney, John Williams, on behalf Susan Burhans, who formerly served as security education coordinator for the Yale Police Department. The filing’s basic thesis: over the course of a decade, Burhans recommended a variety of policies which, if adopted, would have ensured that the OCR had no grounds for acting against Yale. But instead of Yale accepting her wise counsel, Burhans was fired.

 

A Connecticut Superior Court already appears to have dismissed Burhans’s case, for reasons that aren’t hard to discern, given some of the claims the lawsuit offers. Murphy and her co-counsel maintain that Burhans discovered that Yale accusers were “revictimized during sexual assault grievance procedures,” and demanded that her supervisors institute new procedures. (The complaint doesn’t reveal what these new procedures were.)

 

Burhans “experienced an increasing number of colleagues avoiding her,” which Murphy and her co-counsel suggest constitutes evidence that Yale violated Title IX. And the complaint wants to hold Yale liable for posting a $129,000 job in the security department requiring “qualifications Burhans did not possess.” Finally, the complaint reveals that Burhans applied for around 50 other jobs at Yale and didn’t get any. Again, it’s not clear how this is evidence of a Title IX violation.

 

Continue reading Yale’s New Low and the Sad Saga of Wendy Murphy

Campus Due Process, Obama-Style

In this
week’s Chronicle of Higher Education, Joseph Cohn, director of policy at
FIRE, summarizes
the due process implications of a letter sent to colleges and universities last
April by the Department of Education’s Office for Civil Rights. As was widely
reported at the time, the letter instructs schools to adopt the lowest standard
of proof in our judicial system, preponderance of the evidence, in cases of
alleged sexual misconduct, ranging from harassment to rape.

During
the Bush Administration, Cohn notes, colleges enjoyed greater flexibility in
their proceedings, and the Office of Civil Rights accepted a wide variety of
standards among institutions.  The new directive, signed by Obama
appointee Russlyn Ali, allows little latitude.
 

Supporters
have defended the lower standard of proof by citing civil lawsuits that also
rely on a preponderance outcome, but the elements of civil lawsuits that are
missing from campus hearings are worth listing:

  • Civil
    trials have impartial, legally-trained judges; campus hearings often rely on “a
    panel of faculty, students, and/or administrators.”
  • In civil
    cases, either party may demand a jury; in campus hearings, the option isn’t
    available.
  • In civil
    cases, parties have right to counsel; in campus hearings, “parties to these
    hearings frequently have no right to counsel.”
  • In campus hearings, “rules of evidence don’t apply,” and witnesses “are usually
    not placed under oath.”

According
to Cohn, of 198 colleges ranked by U.S. News & World Report, 30
institutions so far have complied.

This is a
travesty of due process, but it pleases advocacy groups such as the Women’s
Sports Foundation, the Association of Title IX Administrators, and Wendy Murphy
(remember the Duke Lacrosse Scandal?), all of whom signed a
statement
in support of the letter. One particular sentence in the support
statement indicates clearly why the new standard is a dangerous one.  It
reads: “The preponderance standard is the only equitable choice under Title IX
as it avoids the presumption, inherent in a higher standard of proof, that the
word of a victim is less weighty than the word of an accused individual’s
denial.”

Note the
acceptance of victim status for one party before the respective “words” have
even been given.  In some cases, of course, there will be physical
evidence of assault, but in other cases, we have precisely a contest of words
alone.  With the stakes so high for the accused, should the accuser’s
accusation be as “weighty” as the accused’s denial?  Yes, according to
these groups and the Obama Administration, and they dress it up in a language
of “equity.”

Why Are There Still Preferences for Women?

Using federal statistics, Laura Norén has prepared a series of graphics showing gender distribution among recent recipients of undergraduate, M.A., and Ph.D./professional degrees. The charts are visually striking, especially since all three sets of charts show movement in an identical direction. According to Norén, by 2020, women are projected to earn 61 percent of all M.A. degrees and 58 percent of all B.A. degrees—figures far above the percentage of women in the total population. There’s no indication that this trend will reverse anytime soon.

The Norén chart reminded me of figures revealed in CUNY’s recent faculty “diversity” report. As I previously noted at Minding the Campus, the demographic breakdown of CUNY’s faculty (and there’s no reason to believe that CUNY’s figures differ from those at most major public institutions) has shown a similar progression.

Between 2000 and 2010, the number of women increased from 42 to 47 percent of the all CUNY faculty. (The total had risen five percent in the previous decade, as well.) Because of the nature of tenure—only a small percentage of faculty positions come open every year—a five percent overall gain in a decade suggests disproportionate figures in hiring. And, indeed, that was the case—while the CUNY diversity report only broke down gender-hiring patterns for a couple of years in the decade, in 2005, the most recent year for which data was available, 55.5 percent of the new hires were women. If current patterns hold, women will be the majority of CUNY faculty in 2020 and be nearing the 60 percent mark by 2030.

There’s nothing necessarily troubling with these patterns in and of themselves. Undoubtedly the growing numbers of female students—and female faculty members—in part reflect the broader opening of higher education toward women that has occurred since the 1960s. And in a nation where women form 50.8 percent of the population, a fair-minded campus admissions and hiring process could easily yield majority-female enrollment or hires.

Yet these statistics do raise profound, and troubling questions about the nature of campus race/ethnicity/gender “diversity” programs. If women are the substantial majority of students at all levels, and increasingly emerge as the majority of faculty members, what possible rationale could exist for programs, of any type, that grant gender-based preferences to women? Regarding the student population, at least, and the faculty population in the near future, women are no longer an underrepresented minority. To my knowledge, however, no university anywhere in the country has modified either its admissions or its personnel policies to take into account statistics such as those graphed by Norén.

Take, for instance, the University of Michigan’s affirmative action policies. The policies include such banalities as a requirement that “university publications relating to employment . . . include articles covering the University’s affirmative action programs, including progress reports and employment data on minorities and women. Pictures will include minorities and women.”

But other requirements are more direct. “Special attention will be given,” according the guidelines,“to extending and strengthening efforts to increase the number of women” in faculty positions. “Recruitment practices will focus on creating a feeling[emphasis added] conducive to attracting minorities and women.” And faculty search committees “will utilize methods which are most likely to result in the inclusion of qualified minorities and women in the applicant pool.” Such requirements might once have been needed. But in an academy in which women are moving toward majority status?

Despite all of these policies, moreover, the university preposterously maintains that “Applicants for employment are considered and placed without regard to . . . sex.” And with federal courts clearly in mind, the guidelines add that goals and timetables for hiring more women at Michigan “are not to be construed or used as a quota system.”

There’s nothing particularly unusual about Michigan’s policies, just as there was nothing unusual about CUNY’s faculty hiring data; such patterns are common throughout higher education. And there’s no reason to believe that any statistics will lead to these policies being repealed.

Norén’s chart unintentionally highlights a point made in several of the Fisher briefs: that it’s entirely possible that even outright quotas might lead to a fairer higher education system than our ever-shifting “goals and timetables,” which can easily be shielded from transparency.

The OCR’s Newest Target: Xavier University

The Cincinnati
Enquirer
reports that Education Department’s Office of Civil Rights (OCR)
has entered into its latest Title IX-related agreement with Xavier University.
Unlike the
OCR’s agreement with Yale
, which used a manufactured controversy to weaken
the due process rights of the university’s students, at least at Xavier the OCR
involved itself only in response to actual complaints of sexual assault. But,
as with Yale, the outcome revealed a basic lack of respect for the presumption
of innocence and fair play for all students.

The heart of the case at Xavier, according
to the Enquirer
: “Two female
Xavier students charged that a male student was twice allowed to remain on
campus after being found responsible for sexual assaults, and a third charged
that XU did not treat her fairly in her sexual harassment and stalking claim.”

In fact, the male student, Sean Marron, was acquitted of four counts of sexual assault in a bench trial. The trial records were sealed,
but
according
to the court reporter
, the judge ruled as he did “due to inconsistencies” in the accusers’ stories and “a lack of
evidence.” In the aftermath, Xavier dismissed two student life officials, on
grounds that they mishandled the female students’ on-campus complaints, before
the students filed criminal complaints against Marron.

Continue reading The OCR’s Newest Target: Xavier University

Gender Quotas on Philosophy Panels?

First it was gender quotas for the sciences–and
now it’s gender quotas for philosophy. Two philosophy professors are calling on
their colleagues to boycott academic conferences that don’t feature at least
one woman as a keynote speaker.

Continue reading Gender Quotas on Philosophy Panels?

Science Quotas for Women–A White House Goal

When college women study science, they tend to
gravitate toward biologyabout 58 percent of all bachelor’s, master’s, and doctoral
degrees in biology
 go
to women
.
 In contrast, women earn some 17
percent of bachelor’s degrees in engineering and computer science and just over
40
 percent
of bachelor’s degrees in physical sciences and mathematics.
The likely
reason for this, found in the study The Mathematics of Sex” (2009) by Cornell
psychologists Stephen J. Ceci and Wendy M. Williams, is that women tend to be
 drawn to
“organic” fields involving people and living things, whereas men are
 more interested in
the objects and abstractions that are the focus of STEM
 majors. Aversion to
math plays a role too: a University of Bristol study finds
 that biologists tend
not to pay attention to scholarly articles in their field
 that are packed with
mathematical
 equations.

Yet the Obama administration sticks
closely to the hard-line feminist argument that 
the problem is bias: women are somehow being
denied access to STEM courses. On June 20 the White House announced that it would issue guidelines expanding the scope of Title
IX
 to cover science, technology, engineering, and mathematics.

Continue reading Science Quotas for Women–A White House Goal

Yale Abandons All Pretense of Due Process

Yale and the Department of Education’s Office of Civil Rights recently announced a settlement of a Title IX complaint brought by several Yale students alleging a “hostile environment” on the campus toward women. (The idea that any contemporary Ivy League campus is hostile to women is nothing short of preposterous.) The settlement’s terms included the following binding commitments from Yale:

Continue reading Yale Abandons All Pretense of Due Process

Stanford: Guilty Even If Innocent

At Stanford, according to the “alternative misconduct review process” guidelines offered on the university’s website, a student accused of sexual misconduct doesn’t have the right to cross-examine his accuser–or any other witnesses in his case. He cannot offer exculpatory evidence on his behalf, but can only “request” that the university’s assigned “Investigator contact individuals who are witnesses to an event.” (Even then, the Investigator “is not obligated to meet with every individual proffered by the responding student.”) If acquitted by the campus judicial process, his accuser can appeal the acquittal. Even if the acquittal is upheld on appeal, he can still face what Stanford euphemistically terms “non-disciplinary actions,” including “removal from a position of trust or removing a student from housing.”

And, as a result of the recent OCR Title IX missive, he’s lost what was virtually his only due-process protection–that a conviction will result only from “beyond a reasonable doubt.” Instead, he now will face expulsion if found guilty according to a “preponderance of the evidence” (50.1 percent) standard.

What right does the accused student possess? “To be offered reasonable protection from . . . malicious prosecution.” Thanks to FIRE, we now know that even this meager right is meaningless.

FIRE has obtained some of the material that the university uses to train the student jurors (dubbed “reviewers”) who decide the fate of accused students at Stanford. The FIRE website provides excerpts from one such item, Why Does He Do That: Inside the Minds of Angry and Controlling Men. The Library Journal review notes that the book’s author, Lundy Bancroft, has wildly claimed that at least one out of three American women will be a victim of violence by a husband or boyfriend at some point in her life.”

Continue reading Stanford: Guilty Even If Innocent

What Yale’s President Should Have Said about the Frat Boys

By Harvey Silverglate and Kyle Smeallie

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The Department of Education is currently investigating Yale University for allegedly maintaining a sexually hostile environment. No one can deny that the New Haven Ivy is in a difficult position. To wit, Yale enacted changes last month to lower the standard of proof in sexual assault cases, and last week, College Dean Mary Miller announced that a fraternity would be banned for five years, a result of an October 2010 incident in which pledges shouted sexually-graphic chants. Yale, by all appearances, is capitulating to federal pressure. It didn’t have to. Here’s how Yale President Richard Levin could have stood tall, on behalf of educators and liberal arts institutions everywhere, in the face of Washington’s unwelcome–and ultimately destructive intrusion.

Dear Assistant Secretary for Civil Rights Russlynn Ali:

Allow me to introduce myself. I am Richard Levin, President of Yale University. I’ve been at the helm of this great institution since 1993, making me currently the longest-tenured president in the Ivy League. As a long-time observer of higher education, and one who has praised its historical autonomy from the public sector, I feel an obligation to express my concern about recent developments from your office.

I’m writing today in response to a Title IX civil rights complaint for gender discrimination that your office has filed against my university, as well as a “Dear Colleague” letter sent by you last month to nearly every college and university,both of which concern the adjudication of sexual harassment allegations in higher education.

Continue reading What Yale’s President Should Have Said about the Frat Boys