The Times: Still Biased on College Sex Hearings

Richard Pérez-Peña, an unusually shaky New York Times reporter who covers campus sexual misconduct cases and gets many of them wrong, has been corrected by his bosses, though the Times didn’t announce it as a correction and managed to introduce a new error while altering the inaccurate wording of the March 19 story.

At issue is a controversial (though not at the Times) “Dear Colleague” letter sent to colleges nearly two years ago by the Department of Education’s Office of Civil Rights. The letter recommended a major change in sexual misconduct hearings on campus: instead of “clear and convincing evidence,” colleges should invoke a “preponderance of evidence” standard in judging guilt–in other words, 50.1 percent certainty of guilt is good enough to convict.

Yet Pérez-Peña’s recent article said “The letter did not markedly change  interpretation of the law; instead, it reminded colleges of obligations that many of them had ignored, and signaled that there was a new seriousness in Washington about enforcing them.” I wrote about this misinterpretation here.

The NewsDiffs site, which monitors alterations in news articles, noted that the Times drastically changed the faulty sentence to this: “The letter changed interpretation of parts of the law; it reminded colleges of obligations that many of them had ignored, and signaled that there was a new seriousness in Washington about enforcing them.”

Of course, the change renders the sentence all but senseless: how could the Office of Civil Rights have “reminded” colleges of “obligations” they had “ignored,” when these “obligations” did not exist before the 2011 letter altered 39 years or legal interpretation?

At least even Pérez-Peña now has conceded that the “Dear Colleague” letter did, in fact, change interpretation of the law. The article doesn’t, of course, mention how it changed interpretation: by demanding that colleges employ the minimum possible burden of proof–preponderance of evidence–in sexual assault/harassment cases and only in such cases; and by ordering colleges to introduce a right for the accuser to appeal–again, only in sexual assault/harassment cases–if a judicial panel found an accused student not guilty. That said, the reporter’s concession that the “Dear Colleague” letter changed the law makes it even harder to understand why his article failed to include reaction from a defense attorney or a civil libertarian.

In the event, the originally erroneous description of the OCR’s actions raises questions about the competence of the Times in covering college sexual assault cases. Assuming that his original wording wasn’t an instance of willful duplicity, it would appear that Pérez-Peña has just discovered that the “Dear Colleague” letter changed interpretation of the law–even though he’s been writing about the OCR’s highly controversial role in campus allegations of sexual assault for more than a year.

If the Times got the “Dear Colleague” letter wrong, did its most recent article miss other obvious items as well? The article focuses on events at four schools–Amherst, Yale, UNC, and Occidental. In the portrayal, courageous, even plucky, “victims” (the word is used twice, along with the phrase “assault survivor,” even though the article presents no evidence that any of the people discussed by Pérez-Peña ever filed a criminal report, much less saw their case adjudicated in court with a guilty verdict for the accused) or their allies have battled sometimes indifferent administrators, merely seeking respect and fairness. In this effort, they have imaginatively reached out for support to the federal government, which has idealistically responded with the “Dear Colleague” letter and the “reminder” of “obligations” referenced in the altered sentence from Pérez-Peña’s original article.

Yet in at least three of the article’s four cases, Pérez-Peña’s “activists” have sought nothing resembling fundamental fairness. Instead, they have championed procedural changes to decimate the rights of the accused–all without any mention in the Times.

Take, for instance, events at Amherst. Pérez-Peña first explored events on the Massachusetts campus in November, describing a process that “began with a first-person account of an elite college’s callous treatment of a rape victim.” (As with his recent article, neither Pérez-Peña nor his editors seemed to have any problems with using the word “victim,” rather than alleged victim or accuser, to describe an accuser who never filed criminal charges.) In a passage that could have been written by an Amherst PR staffer, Pérez-Peña then revealed that “it may be that no college leader in the country was as well prepared to face this controversy than [president] Biddy Martin . . . [who] has written extensively on gender and sexuality, and . . . has a history of tackling — though not always successfully — thorny disputes.” In fact, she had already “started overhauling the way that Amherst handled sexual assaults.”

The Amherst article also quoted Dana Bolger, described in November 2012 by Pérez-Peña as “a student activist who had criticized Dr. Martin for not moving fast enough to address sexual assault in her first year at Amherst. Pérez-Peña returned to Bolger–only now described not merely as a student activist, but as “one of the leading activists at Amherst”–in his most recent opus.

Though he gushed over her status as an activist, Pérez-Peña couldn’t find space to describe what sorts of things Bolger has actually demanded in her activism. He needn’t have looked too far: in a “Room for Debate” item the Times published a few days ago, Bolger proclaimed that “the criminal justice process,” with its excessively lengthy pre-trial proceedings, “revictimizes rape survivors,” in part because “the standard of proof is impossibly high.” Bo contrast, “the college disciplinary system offers survivors a shorter process and quicker remedy,” and accused students can be judged “based on a preponderance of evidence standard.”

Imagine the Times–in a straight news article, no less–soothingly presenting an “activist” who backed military tribunals for suspected terrorists on the grounds that there’s a need for “a shorter process and quicker remedy”; or because, in the criminal justice system, “the standard of proof is impossibly high.” But when the subject is a figure whose goal is to make campus convictions easier, Pérez-Peña didn’t even see fit to mention Bolger’s extraordinary attack on a basic principle of American due process.

Consider as well Pérez-Peña’s portrayal of events at UNC. For his article, the reporter quoted from two of the students who filed a Title IX complaint against the university on grounds that UNC was violating their right to an education free from sexual harassment. While he detailed their inspiration from the protests at Amherst, he didn’t mention the UNC procedure that the duo deemed unfair.

At UNC, even before the implementation of the lowered threshold associated with the “Dear Colleague” mandate, a student accused of sexual assault couldn’t be represented by counsel (or even “a person who has passed a state bar examination”) in the hearing. And the hearing panel had the right to restrict exculpatory evidence only to material that “does not otherwise infringe the rights of other students.” This system, according to Pérez-Peña’s “activists,” was so unfairly tilted against the accuser that it required the filing of a federal complaint.

It’s possible, of course, that actual victims of sexual assault at UNC or Amherst or Yale are mistreated. Yet Pérez-Peña seems unwilling or unable to present the debate fairly, and instead has consistently concealed (perhaps by coincidental omission) any mention of the extreme viewpoints on due process held by his celebrated “activists.” How could any reader of the Times know that the subjects of his reporting actually harbor profound concerns about a legal standard in which the accused must be found guilty beyond a reasonable doubt, or believe that a procedure in which the accused student can’t be represented by an attorney is too lenient on the accused student?

The Times, of course, has a troubled history of slanted coverage when it comes to allegations of sexual assault on campus. The paper’s handling of the Duke lacrosse case was so bad that it yielded an eventual apology from the sports page editor. Yet the Times’ botching of the lacrosse case appears to have had no impact on how it treats the more general issue. In this respect, Pérez-Peña is simply continuing the standard established by Duff Wilson regarding Duke–ignoring procedural concerns that detract from the preferred narrative, and framing the remaining coverage around a presumption that an accuser’s story must be true.


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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