Thanks to an invitation from the George Washington Forum, I had the opportunity last week to speak at Ohio University on due process and campus sexual assault. I made two primary arguments: first (citing how Duke responded to the lacrosse case), I challenged the idea that universities are somehow biased against sexual assault accusers, much less so biased as to constitute a Title IX violation, as the Office for Civil Rights consistently maintains. Second (citing the new policies at Yale and Stanford), I suggested that too many colleges have created procedures so flawed that there’s no way of knowing whether a student found culpable actually did anything wrong, much less committed a rape.
The talk wound up attracting attention in large part because of the conduct of a group of 15 or so student protesters, who call themselves F–kRapeCulture. To get a sense of the group’s mindset, I recommend this op-ed they wrote for the local paper. Or you could take a look at their aborted heckler’s veto effort in which they stood as one, took off their outerwear to reveal shirts with curses written on them, held signs, and turned their backs—on a video of President Obama justifying his administration’s new policy, which would eviscerate campus due process.
At a public event at a public university, critics have every right to attend and ask challenging or outright hostile questions. They also have every right to wear shirts with curse words, though I doubt such a tactic would appeal to those undecided on the question. The attempt to engage in a hecklers’ veto, on the other hand, betrayed the protesters’ lack of confidence that their viewpoint could prevail in the marketplace of ideas.
With the exception of one openly rude student in the front row (who didn’t ask any questions), the protesters didn’t attempt any further disruptions after a warning from the talk organizer. (There were several police officers present at the event.) After spending the talk itself furiously texting, several posed questions once the talk concluded, often reading from their phones. Some of these questions were simply bizarre—one student suggested that my standing up for due process vindicated her fight against rape apologists, while another cited to a non-existent FBI report alleging that the odds of being falsely accused of rape are “2.7 million to one.” (This would mean that the Duke lacrosse players might have been the only people falsely accused of rape in American history.) Though these comments were off the wall, I don’t have any doubt, sadly, that both students completely believed what they said.
Due Process and Oppression
Two of the questions—one from a protester, one from a visiting professor at Ohio—were more striking. Visibly upset, so much so that she struggled to complete her question, one protester asked me how I could stand up for the “oppressors,” who she identified as white males. But there isn’t a single college sexual assault procedure that formally distinguishes on the basis of race—it’s not as if schools fairly treat black students or Hispanic students accused of sexual assault, and reserve their unfairness solely for white males. (As Harvard Law professor Janet Halley recently pointed out, weakening due process safeguards has harmed minorities accused of sexual assault throughout American history.) Indeed, the first successful due process lawsuit after adoption of the “Dear Colleague” letter was achieved by an African-American male, Dez Wells. For the protester, Wells (here’s a photo of him) was among the oppressors, who apparently deserved the unfair treatment that he received.
An early mentor of mine on the issue of campus due process once commented that while the race/class/gender trinity dominates the contemporary academy, gender always trumps class, and race always trumps gender. That was true in the lacrosse case, when nearly a year after the lacrosse players’ party, a white Duke student named Katie Rouse said she had been raped by an African-American man at a party. (The suspect eventually pled guilty.) Not a single member of the Group of 88, the professors who had been so eager to proclaim the lacrosse players’ guilt when the accuser was a black woman, publicly spoke up on behalf of Rouse. Race trumped gender, even for these self-styled anti-rape faculty members.
For the Ohio protesters, by contrast, it seems clear that gender trumped race. To the extent this view reflects that of other activists, the anti-due process movement could have far broader effects on the campus at large.
The second question came from a visiting professor at Ohio, who the local newspaper subsequently identified as Thomas Costello. Costello, who previously worked as a lawyer and whose academic specialization includes “intercultural communication,” asked a meandering question about the “culture behind all of this,” which he seemed to believe (though he didn’t say so specifically) accounted for an excessive number of sexual assaults at the school. Yet Ohio actually has a very low sexual assault rate: out of a student population of around 17,000, the school has experienced 9, 14, and 11 sexual assault reports over the past three years. And since several of these alleged assaults occurred off campus, it seems unlikely that all of the alleged perpetrators were even Ohio students. It would seem, in fact, that in the past two years, as many students at Ohio were alleged to have committed sexual assault as engaged in an attempted heckler’s veto at the talk. I doubt that either group of students is representative of the student body as a whole.
Obviously all campus crime—especially sexual assault, a serious felony—must be addressed, preferably by competent law enforcement personnel. But it would be hard to argue that the behavior of something like 0.5 percent of the school’s male students over a multi-year period could be said to reflect a broader campus culture. Not so for Professor Costello, who said that “young men on campus” don’t know what it means to “be a man.” (Imagine the reaction at a public university anywhere in the country if a professor publicly proclaimed that the female students at his school didn’t how to “be a woman.”) Costello did not reveal how he reached this sweeping conclusion about the “young men on campus”—some of whom, presumably, he has taught. As a professor it must be extraordinarily difficult for him, or for any like-minded colleagues, to survey his students on the first day of class, having already concluded that half or so of his students, solely on the basis of their gender, are of morally dubious character. In the event, I can’t think of anyone less qualified to teach fellow adults how to “be a man” (or “be a woman”) than the typical college faculty member, including me.
Costello expanded on his critique in an interview with the Athens Post. Speaking as a lawyer, he told reporter Bethany Bella, “I’m all for justice, but justice cuts both ways—for the accused and the victim.”Of course, as any lawyer would understand, there is no “victim” at the point when the other party has only been “accused.” It appears as if Costello, much like Kirsten Gillibrand, believes that the mere allegation of sexual assault transforms an accuser into a “victim.” Perhaps that viewpoint reflects his earlier work as “as a member of a number of committees and working groups within the University on issues of diversity, access and equity,” but it’s not one that can easily be reconciled with support for due process.
As with the protester who implied that due process was the tool of the oppressors, I suspect that Costello’s views about due process and campus sexual assault are widespread among most universities’ faculty. How institutions populated by large numbers of such professors and activists could simultaneously be indifferent to the scourge of sexual assault neither Costello nor the protesters explained.