In September of last year, I wrote a piece about the Obama-era changes in the Title IX laws. Rather than re-describe the situation, I’ll quote from that post:
In 2011, the Office for Civil Rights (“OCR”) of the U.S. Department of Education sent its famous “Dear Colleague” letter to American colleges and universities, suggesting how sexual harassment and assault cases should be handled. Before that, it was pretty much up to the colleges how to handle such in-house investigations, and different colleges used different standards of evidence. There are three that could be used (see here for more explanation):
- Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
- Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
- Conviction requires a “preponderance of the evidence” for assault or hasassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.
Criminal courts in the U.S. use the first standard for conviction. The “clear and convincing” standard is used in some administrative court determinations and certain civil or criminal cases (a prisoner seeking habeas corpus relief from capital punishment, for instance, must prove his innocence using this standard). The “preponderance” standard is used in civil and family courts; it is, for instance, the reason why O. J. Simpson was found guilty of by a civil court for damages in the murder of Nicole Brown Simpson and Ron Goldman, thus owing them lots of money even though he was exonerated in his criminal trial.
I then took a poll among readers (you needn’t remind me that this is not a random sample or a “scientific” survey) to see how they felt about how colleges could handle sexual harassment and assault cases. Here are the results:
About 80% of readers thought—and I agree—that these behaviors—which are crimes, should be adjudicated by the courts rather than by the schools themselves. Indeed, universities have made a complete botch of it, not allowing students to hear the charges against them, confront their accusers, have legal representation, and so on.
If you want to see the draconian, Star-Chamber nature of how colleges screw up the process (often knowing exactly what they’re doing: trying to convict a male using a paucity of evidence) read Laura Kipnis’s book from last year, Unwanted Advances: Sexual Paranoia Comes to Campus. Kipnis, a feminist professor of communications at Northwestern University here in Chicago, reports the doings of two Title IX investigations at her university. You’ll be horrified to learn how shoddy these “investigations” can be, how motivated they are by animus or personal beefs rather than a desire for justice, and how people’s lives have been ruined through tissue-thin allegations. Indeed, just by writing the book, Kipnis herself was subject to a Title IX investigation and a lawsuit from a student who (unnamed) had made Title IX allegations against a man in Kipnis’s narrative.
The problems go deeper than just the shoddy standards of evidence and incompetent proceedings. There is often a presumption that a male student is always guilty simply by virtue of being a male, as men are presumed to be the sexual aggressors. Further, if a student is incapacitated or has lost inhibitions from alcohol, that student is often judged to have given up “affirmative consent”, and so can accuse her sexual partner of having committed rape.
This makes me shudder, for virtually everyone my age has had one or more sexual encounters when both partners were inebriated, and I don’t remember any of these that were followed by accusations of malfeasance. But now things have changed, and if both sex partners are drunk or tipsy, what happens? Can there be mutual rape?
In fact, as described in a new article in The Atlantic, “Mutually nonconsensual sex,” Caitlin Flanagan answers “yes,” but shows what happens: mutually drunken (and therefore mutually “nonconsensual”) sex can lead to a race in which both participants in a drunken hookup suddenly realize that their partner might file a Title IX rape complaint, and so they try to be first to inform the authorities that they were raped. The first complainant, apparently, wins. Something like this happened at the University of Cincinnati in Ohio, and the first responder was the man, so the woman was suspended from college until her male partner graduated—a common judgment in these cases. But she’s suing, and she has a pretty good case. As Flanagan notes:
It is Jane Roe’s [JAC: the pseudonym of the woman student] good fortune to have as her attorney Josh Engel, whose practice is largely centered on suing universities—including, on five occasions, the University of Cincinnati—on behalf of plaintiffs who faced discipline for sexual misconduct by campus disciplinary proceedings—all of whom, until now have been men. In the lawsuit, he cites a recent and underreported ruling from the Sixth Circuit, which has significant relevance to the large number of campus sexual-assault proceedings involving two drunk students. Doe vs. Miami University found that a school acts in a discriminatory manner when it finds that both a male and a female student are intoxicated and engage in sexual activity yet chooses only to discipline one of the students. As Engel told me, “From a constitutional standpoint a public school violates the equal-protection rights of their students when there is no rational basis to differentiate between male and female students. The court found that even if only one student makes a report, if the school possesses knowledge that both were intoxicated, “the school has an affirmative obligation to investigate both students for misconduct without waiting for a ‘report,’” Engel said.
In other words—college students and administrators take note—the days of blaming one person (almost always the man) for a no-harm, no foul, mutually drunken hook up may be coming to an end. It was a ridiculous standard, one that that infantilized college women, demonized male sexuality, and was responsible for harsh punishment meted out to an unknown number of college students, almost all of them male. It trivialized something grave: sex crime. And because it poured all of these experiences through an interpretive system that forced women into the role of passive victims and men in that of aggressive predators, it has helped stoke understandable resentment among young men on campuses across the country.
Flanagan concludes that it’s time for colleges to stop micromanaging the sex lives of their students. Yes, I think they can give them “education” about what’s permissible and legal, and what is not, but these Star Chambers are a recipe for lawsuits, and colleges will eventually realize it. In fact, one of the very few good things that happened under the Trump administration might be Betsy DeVos’s rolling back of the “Dear Colleague” standards of the Obama administration, and the publication by the Civil Rights Office of the Department of Education of recommendations for dealing with accusations of sexual misconduct (see them here). The standards seem quite reasonable.
A climate in which men are deemed guilty from the outset by having a Y chromosome, in which a 50.1% judgement that an assault was likely leads to ruining someone’s life (and face it—that standard is basically a judgment call), and in which when both partners are intoxicated the male must be the rapist, is a climate that begs for lawsuits. This new one is not the first: there are several others—including the case of Emma Sulkowicz (“Mattress Girl”) at Columbia—in which the new rush to judgment has led to injustices.
I think that if someone has committed a real crime on campus, and that includes sexual harassment and sexual assault, it should be left to the legal system rather than to colleges for disposition. If there is a conviction, then the colleges should act. Colleges simply aren’t equipped to dispense justice, and they may have ideological agendas not held by juries and judges.
Obama’s revision of Title IX was a mistake, and we’re beginning to see the consequences. But even given that, colleges aren’t required to abide by the newer standards, and I suspect most of them will retain the “preponderance of evidence” mistake promulgated by Obama’s administration. But Lord only knows how they’ll deal with the common cases of two inebriated students having sex.
I close with Flanagan’s conclusion:
Now, in many regards, universities monitor the sexuality of their students more intrusively than in the 1950s. There are fulltime employees of American universities whose job is to sit young people down and interrogate them about when and where and how they touched another person sexually, and how it felt, and what signs and sounds and words and gestures made them believe that consent had been granted. This was how homosexuals used to be thrown out of schools and sports teams and the military; this is how young women were punished for acting on their sexual impulses by a wide variety of American institutions in the past. This is beyond the overreach of the modern university; this is an affront to the most essential and irreducible of all of the American ideas: the freedom of the individual.
. . . That time [JAC: she’s referring to the Berkeley Free Speech movement and Mario Savio’s call to fix the broken system] is coming again on American campuses, as the strongest and smartest and bravest among the students are beginning to realize that the beliefs and practices that dominate these places are irrational and hugely political. These new students are waking up, resisting, fighting back, in all sorts of areas of college life. The administrators want to crush them, but the wind is at their back. The progressive left has all the power on campus, but this unfolding awareness on the part of these counter-revolutionaries has its own unassailable power: truth, logic, and reason.