The Times’ One-Sided “Debate” on Sex Hearings

The “Room for Debate” section at the New York Times recentlyexamined the issue of campus claims of sexual assault. But the “debate” more accurately an imbalanced exchange—perhaps unsurprising given the Times’ almost wholly one-sided coverage of this issue in its news pages.

FIRE’s Samantha Harris made a typically compelling case for the importance of due process. Three major takeaways from her essay: (1) university procedures deprive accused students of anything resembling due process; (2) these tilted procedures undercut the integrity of the entire university disciplinary process; and (3) since expulsion is the worst penalty universities can give, anyone who really believes colleges are facing an unprecedented wave of violent crime should want more involvement from law enforcement, which can properly punish these violent criminals.

Perhaps the Times considers Harris such a formidable debater (her essay was very well-argued) that the paper needed to bring in five people to rebut her view. Or perhaps the paper’s editorial approach reflected the Times’ overall biases on this question. In the event, the other five contributors were either neutral on the question of due process on campus, or contemptuous of the concept.

One essay advocated better training for university officials. (So too did a commenter who claimed have served on a disciplinary panel at a New Jersey public university, and who bizarrely suggested remedying denials to due process for the accused by training the disciplinary panel more effectively.) Training is, of course, a good thing. But what kind of training? The Stanford model, in which panelists have been trained that an accuser presenting his case logically can be interpreted as a sign of guilt?

A second essay defended the McCaskill survey proposal—hilariously suggesting that the Missouri senator’s purpose wasn’t to “shame” universities. (The survey’s primary effect would likely be to pressure schools, especially administrators who serve on disciplinary panels, to increase findings of guilt.) A third Times essay likewise defends the survey idea (and the McCaskill bill as a whole), and calls for colleges to do more to educate students, by encouraging such practices as “turning on lights in a dark party room or turning off music to distract a perpetrator.”

The Times rounds out its “debate” with items from two anti-due process “activists.” Occidental’s Danielle Dirks—taking, yet again, a high-profile stance on the issue even as HuffPost’s Tyler Kingkade falsely framed her involvement in the matter as a result of FIRE’s exposure—took a novel approach to the survey question. Accepting the 1-in-5 claim as gospel (for the latest debunking of this “statistic,” see the Washington Examiner’s indispensable Ashe Schow), Dirks argued that the survey would expose colleges who subject “campus survivors” to “a ‘second rape’ riddled with betrayal, shame and indifference,” and thereby discourage reporting. Schools that didn’t report 20 percent of their female population as rape victims would, presumably, be subject to penalties under the Clery Act. In Dirks’ world, colleges’ chief task would be creating “evidence” to substantiate existence of a sufficient number of “crimes” to satisfy what she—and like-minded activists—believe is the “true” number of rapes on campus.

Then there’s the University of Michigan’s Molly Rider-Milkovich, who suggested that allowing trained law enforcement officers to investigate one of the most serious crimes that exists constitutes “abdicating” to the criminal justice system. She euphemistically describes the college process as an avenue for accusers to act “when the criminal justice system is not available to them.” And when is that? When there “is not enough evidence presented for a prosecutor to file criminal charges,” as “in situations where there are no witnesses to the activity, little or no physical evidence, or if the victim has only partial recall of the events — a description that fits many of the reports we receive from students.”

Rider-Milkovich appears not to have considers that cases in which there are (1) no witnesses; (2) no physical evidence; and (3) “partial recall” might well be instances in which there was no crime. At least, however, she deserves credit for her honesty: like Stanford Law’s Michele Dauber, Rider-Milkovich wants a parallel justice system on campus so that more male students can be branded rapists.

Notably absent from the Times’ list: any defense attorney who has to represent students subjected to the procedures so celebrated by the likes of Dirks and Rider-Milkovich. Andrew Miltenberg—attorney for students mistreated at Vassar, Columbia, and Drew—is based in New York. But given the paper’s very active campus sexual assault beat has ignored Miltenberg’s lawsuits, it probably shouldn’t come as a surprise that the Times wanted a “debate” that excluded a defense attorney’s perspective.

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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