An Unjustified Attack On George Will

The Volokh Conspiracy

Columnist George Will wrote a column recently that has attracted a tremendous amount of ire, including calls that the Washington Post fire him.  The St. Louis Dispatch has now announced that it’s replacing Will with Michael Gerson. The announcement reads in part: “The change has been under consideration for several months, but a column published June 5, in which Mr. Will suggested that sexual assault victims on college campuses enjoy a privileged status, made the decision easier. The column was offensive and inaccurate; we apologize for publishing it.”

Putting aside for the moment any other concerns that critics may have with Will’s column, the latter allegation, that he specifically suggested that sexual assault victims on college campuses enjoy a privileged status, is false.

What Will did write was the following:

Colleges and universities are being educated by Washington and are finding the experience excruciating. They are learning that when they say campus victimizations are ubiquitous (“micro-aggressions,” often not discernible to the untutored eye, are everywhere), and that when they make victimhood a coveted status that confers privileges, victims proliferate. And academia’s progressivism has rendered it intellectually defenseless now that progressivism’s achievement, the regulatory state, has decided it is academia’s turn to be broken to government’s saddle.

So Will is making two points here. First, that university culture encourages students to perceive themselves as victims, and those that can credibly claim victimhood are sometimes given higher status. I don’t think that’s reasonably debatable, as it’s exactly what the apparently common trope, “check your privilege” is about; students seen as “privileged” by dint of skin color, sex, wealth, etc., should shut up and let the more authentic and wise voices of members of societies’ victim classes proliferate. And the general rule is, if you subsidize something, you get more of it, and there’s  no reason to think this wouldn’t include self-perceptions of victimhood or self-identification as a victim. It’s notable that a recent well-circulated column by a Princeton student taking exception to the “check your privilege” meme took pains to note that the author himself is the grandchild of Holocaust survivors, the quintessential victims.

Even back in my day, Yale Law School had a “student strike for diversity,” at a rally for which students were encouraged to tell their individual tales of woe. I thought it striking that one student actually got up to discuss what a victim he was because he was a “first-generation professional.” Thus, for example, while seemingly everyone else knew how to dress for a job interview, he did not. The horror of being on the cusp of a six-figure salary and having to ask the clerk at Brooks Brothers for assistance! (I could sympathize with the student–for my first “desk” job, I showed up, on advice of my parents, in short sleeve dress shirts and a tie, leading to subsequent teasing from co-workers–but a member of a victim class? No.)

What does all this have to do with the government? The federal government has issued rules to universities requiring them to overhaul their processes for handling sexual assault claims. Among other things, these rules seem to require universities to penalize an accused student before any factual determination has been made (indeed, even if no formal complaint was filed), to judge such cases by a preponderance of the evidence standard, and to prohibit any examination of the complainant by the accused (and universities often prohibit the accused to have a representative stand in for him). The rules fly in the face of what the government would consider due process in any other context.

Critics of the government’s edict argue that its justification, that universities have failed to properly respond to allegations of sexual assault, is flawed on two counts. First, that cases of sexual assault should generally be handled by the criminal justice system, not by the kangaroo tribunals universities typically manage. And, second, that some of the examples trotted out as alleged cases of university misconduct on further investigation turn out not to be so clearcut, hence the need for some basic due process protections for the accused.  In fact, a series of lawsuits have been filed by men against universities across the country, claiming that, in part due to government pressure, their universities discriminated against them as men or denied them due process in penalizing them based on false claims of sexual misconduct.  Even some long-term supporters of a crackdown on sexual misconduct on campus are starting acknowledge cases of false or dubious accusations, and that “in a lot of these cases, the campus is holding the male accountable in spite of the evidence—or lack thereof—because they think they are supposed to, and that doing so is what [the DOE’s Office for Civil Rights] wants.” (Universities could lose all of their federal funding if the DOE OCR finds them out of compliance with Title IX.)

Will’s column gives one example of a case raised by activists who support the government crackdown, a “report about Swarthmore College, where in 2013 a student ‘was in her room with a guy with whom she’d been hooking up for three months’”:

They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.” Six weeks later, the woman reported that she had been raped.

Various Will critics have read this example as Will sarcastically belittling a victim of sexual assault.  Will used this example, however, because he obviously think that this is NOT an example of sexual assault. What’s not clear is whether he thinks it’s clearly not an example, or whether it comes within the category of what he later calls “the ambiguities of the hookup culture, this cocktail of hormones, alcohol and the faux sophistication of today’s prolonged adolescence of especially privileged young adults.”  Either way, the federal government is now trying to force universities to treat such examples as sexual assaults for which the perpetrator must be punished.

Thus Will’s second point. Universities, having encouraged their students to think of themselves as victims, are intellectually defenseless when the government creates rules that in essence require universities to take an alleged victim’s word for it, when the validity of the complaint is less than obvious.

All that said, I think this column is written a bit awkwardly, which is unusual for Will. Criticism of Will’s column, on the following debatable grounds, is certainly not unreasonable: (a) Will is downplaying what really is an epidemic of sexual assault on campus, an empirical claim susceptible to reasoned disagreement and possibly resolution; (b) the example Will gave is exactly the sort of thing universities should be punishing students for, and that Will is blind to the social norms and moral reasoning that render the male students’ actions an assault; (c) rather than encouraging faux victimhood, the attention that sexual assault on campus is getting with a federal push is encouraging real victims to come forward and universities to be more conscientious in their responses–occasional anecdotes about possibly overzealous campus investigations needs to be balanced against that greater good [and indeed, it seems true that in the past universities were often too quick to downplay allegations of sexual assault, especially when athletes were involved—but see the Duke case, where quite the opposite occurred]; and/or (d) the link between the general university victimhood culture and any specific woman claiming sexual assault, accurately or not, is speculative at best, and it was offensive/insulting/erroneous to draw that link to a specific case based on a one-paragraph summary of the claim.

I should also point out that to the extent a writer is misunderstood, it’s often the writer’s fault, and that may be true in this case. And I acknowledge that I have sometimes jumped to conclusions about a column or blog post after either reading it ungenerously or missing the author’s point. Still, I don’t think Will’s column, read generously and properly, warrants the more extreme criticism it has attracted. And even if it did, the criticism, unlike the criticism from the St. Louis Post Dispatch, should at least accurately reflect what Will wrote.


  • David Bernstein

    David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. He is the author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003); Only One Place of Redress: African Americans, Labor Regulations the Courts from Reconstruction to the New Deal (2001); and numerous law review articles.

One thought on “An Unjustified Attack On George Will”

  1. Hahaha, too funny. ThinkProgress is calling the St. Louis Post Dispatch “a major newspaper.”

Leave a Reply

Your email address will not be published. Required fields are marked *